Federal Court of Australia

Madden (Receiver) v Mining Standards International Pty Ltd [2025] FCAFC 142

ORDERS

THE COURT ORDERS THAT:

1.    The applicants be granted leave to appeal from orders 1 and 2 of the orders of the primary judge made 24 June 2024.

2.    The appeal be allowed.

3.    Orders 1 and 2 of the orders of the primary judge be set aside and in lieu it be ordered that the proceeding be permanently stayed.

4.    The respondent pay the applicants' costs of the application for leave to appeal and the appeal.

5.    Any party seeking to be heard on an alternative order to that in order 4 is to file and serve written submissions not exceeding five pages within seven days of the date of these orders.

6.    If submissions are filed and served pursuant to order 5, the other parties may file reply submissions not exceeding five pages within seven days of being served with such submissions.

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

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be granted leave to appeal from orders 1 and 2 of the orders of the primary judge made 24 June 2024.

2.    The appeal be allowed.

3.    Orders 1 and 2 of the orders of the primary judge be set aside and in lieu it be ordered that the proceeding be permanently stayed.

4.    The respondent pay the applicant's costs of the application for leave to appeal and the appeal.

5.    Any party seeking to be heard on an alternative order to that in order 4 is to file and serve written submissions not exceeding five pages within seven days of the date of these orders.

6.    If submissions are filed and served pursuant to order 5, the other party may file reply submissions not exceeding five pages within seven days of being served with such submissions.

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

REASONS FOR JUDGMENT

THE COURT:

1    This appeal raises for consideration the question of whether a proceeding commenced in this Court arising from a terminated Sale Agreement should be permanently stayed as an abuse of the process of the Court, having regard to litigation about the termination which has already proceeded to judgment (at first instance and on appeal) in the Supreme Court of Western Australia.

2    The primary judge refused an application to stay the proceeding in this Court. The applicants seek leave to appeal from that interlocutory decision and seek orders on the appeal to the effect that the proceeding be stayed.

3    Although, as will become apparent, the procedural and factual background to this matter is somewhat complex, the issue on the appeal distils to whether the current proceeding in this Court is an abuse of process and should be stayed having regard to:

(a)    whether the current proceeding gives rise to a risk of inconsistent findings with the decision of another court;

(b)    whether the current proceeding is in effect an attempt by the respondent to relitigate matters about the termination upon which it has failed;

(c)    whether the respondent, having chosen not to prosecute certain claims in the Supreme Court about the termination, may nevertheless raise them directly or indirectly in the subsequent Federal Court proceeding; and

(d)    whether the respondent may fairly decide when and which claims to pursue or preserve, based on its own forensic position, including its financial capacity and litigation funding arrangements.

4    In summary, on 3 March 2023 Hill J in the Supreme Court proceeding found that the termination of the Sale Agreement by termination notice dated 22 November 2017 was invalid: Mirabela Nickel Ltd (in liquidation) (receivers and managers appointed) v Mining Standards International Pty Ltd [No 5] [2023] WASC 62 (Mirabela Trial). An appeal from her Honour's orders was heard by the Court of Appeal (on 16 and 17 May 2024), but the outcome remained reserved at the time judgment on the stay application was delivered by the primary judge in this Court (24 June 2024) and at the time of the hearing of this appeal (24 and 25 March 2025).

5    On 30 May 2025 the Court of Appeal delivered its judgment, allowing (in part) an appeal from the judgment of Hill J: Mirabela Nickel Ltd (in liquidation) (receivers and managers appointed) v Mining Standards International Pty Ltd [2025] WASCA 82 (Mirabela Appeal). Relevantly, it declared that the Sale Agreement was validly terminated by the termination notice (declaration).

6    The extent to which this declaration, made after the decision of the primary judge, is to be taken into account directs attention to the nature of the leave application and appeal.

Nature of the appeal

7    Because the decision is interlocutory, leave to appeal is required: Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156 at [26], [95]-[107]. Leave will be given if the decision is attended with sufficient doubt to warrant it being reconsidered by the Full Court, and where substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398-400 (Sheppard, Burchett and Heerey JJ).

8    Assuming leave is granted, the nature of an appeal brought under s 24 of the Federal Court of Australia Act 1976 (Cth) is a rehearing: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507; and Australia Bay Seafoods Pty Ltd v Northern Territory of Australia [2022] FCAFC 180; (2022) 295 FCR 443 at [120] (Besanko, Charlesworth and O'Bryan JJ).

9    A court entertaining an appeal by way of rehearing can exercise its appellate jurisdiction only if satisfied there was error on the part of the primary judge: Lacey v Attorney-General of Queensland [2011] HCA 10; (2011) 242 CLR 573 at [57] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); and National Disability Insurance Agency v Warwick [2025] FCAFC 100 at [95] (Colvin, Jackson and Stellios JJ).

10    However, in contrast to an appeal in the strict sense, in the case of an appeal by rehearing an appellate court can substitute its own decision based on the facts and the law as they then stand: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [23]; and Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [29]-[31].

11    Some caution is required in considering this statement of principle, as discussed in Warwick at [101]-[116]. Warwick was concerned with the question of whether error was established or required where the primary judge had correctly applied the legislative provision in force at the time of judgment, but prior to the appeal the provision had been amended such that, had it been applied, a different result would have ensued. Having determined that the amended legislation was not intended to operate retrospectively, no error on the part of the primary judge was established. Accordingly, the pre-condition to disturbing the orders below was not met: at [112].

12    As to a subsequent change in facts or new evidence, the Court has power under s 27 of the Federal Court Act to receive further evidence, subject to certain well-known constraints, such as its relevance to the outcome and whether it is evidence that could have been adduced at the time of the trial. The power is remedial and its primary purpose 'is to empower the Court to receive further evidence to ensure that proceedings do not miscarry': Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [16] (Griffiths and White JJ).

13    The standard of appellate review in respect of a decision whether to permanently stay a proceeding is the 'correctness standard' explained in Warren v Coombes (1970) 142 CLR 531 at 552, rather than the House v R standard which applies to a decision involving an exercise of discretion (House v The King (1936) 55 CLR 499 at 505). So much was confirmed in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 280 CLR 442; and see Ballard v The King [2024] VCCA 26 at [46]. That is, the appellate court is required to decide the case for itself, recognising any advantages enjoyed by the primary judge. If the appellate court considers the decision of the primary judge was wrong, 'they must discharge their duty and give effect to their own judgment' (Warren v Coombes at 552).

The subsequent Court of Appeal declaration

14    Having regard to those principles, a question is the manner in which the declaration is to be treated on this appeal. The parties filed supplementary submissions in which it was assumed we would take the declaration into account.

15    We consider that is the appropriate course. The effect of the declaration is that (subject to any further appeal) the Court of Appeal declared the rights of the parties as at the date the termination notice was issued. It does not effect a change in the legal position. The declaration is a circumstance we would take into account, having regard to the scope and purpose of s 27 of the Federal Court Act, in order to determine to the correctness standard whether there was error on the part of the primary judge.

16    The declaration by the Court of Appeal is not sufficient in itself to establish legal error on the part of the primary judge, because the position as determined by Hill J was not treated by the primary judge as something set in stone or necessarily correct. His Honour was aware of the appeal and had regard to the consequences that might flow from the appeal succeeding. However, the declaration constitutes the realisation of the risk of inconsistent judgments which confirms that such risk was a matter of great significance in the context of whether the proceeding in this Court constitutes an abuse of process.

17    Therefore, and while we acknowledge the constraints of s 61 of the Evidence Act 1995 (Cth), in that a decision of Hill J or the Court of Appeal is not admissible to prove the existence of facts in issue in that proceeding, the declaration is a matter the Court must appropriately take into account in considering the abuse of process contentions that are central to this appeal.

Background

18    Atlantic Nickel Mineração Ltda (Atlantic Nickel) is a Brazilian mining company (Atlantic Nickel was previously identified as MMB in the various proceedings, but we will use its current name). Two Australian companies, Mirabela Nickel Ltd and Mirabela Investments Pty Ltd (Sellers), held shares (known as quotas) in Atlantic Nickel. On 28 October 2015 Mr Martin Madden, Mr Scott Langdon and Mr Richard Tucker were appointed as receivers and managers of the property of the Sellers (Receivers), including the quotas and certain loans owed by Atlantic Nickel, and as agents of the Sellers.

19    On 1 November 2017 the Sellers and the Receivers entered into the Sale Agreement with Mining Standards International Pty Ltd (MSI) under which MSI was to purchase the quotas and loans for an amount of USD50 million.

20    The Sale Agreement provided that failing satisfaction of a condition precedent, a party who had complied with its obligations to provide all reasonable assistance requested by the buyer to satisfy the conditions precedent was entitled to terminate the Sale Agreement.

21    Relevantly, a finance condition precedent was not satisfied by 5.00 pm AWST on 22 November 2017. Late in the evening of 22 November 2017 the Sellers and Receivers sent the termination notice to MSI, purporting to terminate the Sale Agreement.

22    MSI disputed that it was obliged to satisfy the finance condition precedent by 22 November 2017 and so disputed the validity of the termination notice. It contended that the Sale Agreement remained on foot.

23    On 27 November 2017 the Sellers entered into a contract to sell the quotas and loans to a third party, known as Appian Capital Advisory LLP. That sale was completed in July 2018.

24    Litigation about the circumstances of the purported termination of the Sale Agreement has since proceeded on a number of fronts.

Five relevant proceedings ensue

25    First, on 3 August 2018 the Receivers sought directions in the Western Australian Supreme Court under s 424 of the Corporations Act 2001 (Cth) about the sale of the shares to Appian, including a direction that they were justified in defending proceedings that MSI had threatened to bring against the Sellers and the Receivers (WA Directions Proceeding). Directions were made by Vaughan J, largely as sought, on 5 November 2018: Re Mirabela Nickel Ltd (receivers and managers appointed) (in liq); Ex Parte Madden [2018] WASC 335.

26    Second, on 23 October 2018 MSI commenced proceedings in the WA Supreme Court seeking leave for the proposed service overseas of a draft writ and statement of claim (Draft Writ Proceeding). The Draft Writ Proceeding named Atlantic Nickel, the Sellers, the Receivers, Appian and others as defendants. On 8 November 2018 orders were made by Master Sanderson granting MSI leave as requested, but as it transpired the writ and statement of claim were not served.

27    Third, on 8 May 2019 the Receivers and Sellers instituted a substantive proceeding in the WA Supreme Court seeking a declaration that the Sale Agreement had been validly terminated (WA Proceeding). This proceeding confronted the dispute as to the lawfulness of the termination of the Sale Agreement.

28    The trial of the WA Proceeding was conducted over five days in December 2020 by Hill J and, as noted, judgment (Mirabela Trial) was delivered on 3 March 2023. In short, her Honour found that the Sale Agreement was entered into on 10 November 2017 when executed by the last party (Atlantic Nickel); the finance condition period expired 14 days later on 24 November 2017; there was no binding agreement varying the time for compliance to 22 November 2017; and the termination notice dated 22 November 2017 was therefore invalid.

29    Fourth, on 1 November 2021 and while Hill J's decision remained reserved, MSI commenced proceedings in this Court against Atlantic Nickel alleging breach of contract and unconscionable conduct in relation to the performance of the Sale Agreement (Federal Court Proceeding). Atlantic Nickel joined the Receivers in the Federal Court Proceeding by cross-claim, seeking compensation, an indemnity and contribution.

30    Fifth, the appeal from her Honour's decision was heard by the Court of Appeal in May 2024, with judgment (Mirabela Appeal) delivered on 30 May 2025. As noted, the Receivers' appeal was allowed in part. The Court of Appeal declared that the notice of termination validly terminated the Sale Agreement as between the Sellers and MSI. Those parties had agreed to modify the time for compliance to 22 November 2017 and were bound by the agreement. The fact that Atlantic Nickel was a party to the Sale Agreement but not the variation agreement did not affect that outcome. The Court of Appeal observed that it had not been contended at trial that the exercise of the right to terminate was precluded because of any failure to comply with the obligations to provide reasonable assistance (Mirabela Appeal at [262]). The significance of this will become apparent.

The stay applications in this Court

31    Atlantic Nickel brought its application to stay the Federal Court Proceeding on the basis that it is an abuse of process, having regard to the matters the subject of the WA Proceeding. The Receivers as cross-respondents similarly brought a stay application. The parties rely generally on the principles in UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77 (UBS v Tyne).

32    The Federal Court Proceeding is docketed to the primary judge.

33    On 24 June 2024 his Honour dismissed the stay applications: Mining Standards International Pty Ltd v Atlantic Nickel Mineracao Ltda (No 2) [2024] FCA 666 (PJ).

34    By these applications, the Receivers (as receivers of the Sellers) (QUD 370 of 2024) and Atlantic Nickel (QUD 373 of 2024) seek leave to appeal from the orders dismissing their stay applications. The applications for leave to appeal and the appeals were heard together.

35    Meanwhile, we were informed that the parties to the Federal Court Proceeding are otherwise proceeding on the basis that there will be a trial, which is provisionally listed for hearing in 2026. The primary judge refused an application for a stay pending appeal.

Key terms of the Sale Agreement

36    It is convenient to turn to the key terms of the Sale Agreement before addressing the evidence of the relevant events.

37    MSI is defined in the Sale Agreement as the 'Buyer'. Mirabela Nickel Ltd and Mirabela Investments Pty Ltd together are defined as the 'Sellers'. The Receivers were a party to the Sale Agreement. Atlantic Nickel executed the Sale Agreement some days after it was executed by the other parties, but the fact that Atlantic Nickel was a 'party' within the meaning of the Sale Agreement appears to have been accepted (as acknowledged in Mirabela Appeal at [87]). References to 'Bradesco' are to a financier/lender to Atlantic Nickel.

38    The following are key clauses of the Sale Agreement:

2.1    Conditions Precedent

Unless waived by the Buyer in its absolute discretion and in writing, the transfer of the Assets from the Sellers to the Buyer and the provision of the Consideration (excluding the Deposit) are subject to and conditional on the following conditions being satisfied:

…

(f)    execution of binding finance agreements by the Buyer for an amount equal to the Consideration [USD50million] and satisfaction of all conditions precedent under the finance agreement other than obtaining the Consent and Completion occurring under this agreement.

…

2.2    Reasonable endeavours to satisfy Conditions Precedent

(a)    Each party must use all reasonable endeavours to ensure that each Condition Precedent is satisfied as soon as practicable after the date of this agreement and in any event before the End Date.

(b)    Without limiting clause 2.2(a), the Sellers and the Company must provide all reasonable assistance requested by the Buyer to satisfy the Conditions Precedent or otherwise achieve Completion, including:

(i)    providing all reasonable access to the business and employees of the company during normal business hours; and

(ii)    facilitating access by the Buyer to Bradesco.

…

2.5    Termination

A party is entitled to terminate this agreement by notice to the other parties if it has complied with its obligations under clause 2.2 and:

(a)    the Condition Precedent is clause 2.1(f) is not satisfied by the date which is 14 days after the date of the exchange of signed copies of this agreement;

(b)    at any time before the End Date a Condition Precedent (other than in clause 2.1(f)) has become incapable of satisfaction prior to the End Date; or

(c)    at any time on and from the End Date a Condition Precedent (other than in clause 2.1(f)) has not been satisfied or waived before the End Date.

…

39    As is apparent, two conditions applied before a party was entitled to terminate by notice to the other parties.

40    First, the party had to have complied with its reasonable endeavours obligation under cl 2.2. This is central to the so-called cl 2.2 defence discussed further below, initially asserted by MSI but abandoned in the WA Proceeding, and now reagitated in the Federal Court Proceeding.

41    Second, cl 2.5(a) provided that the entitlement to terminate arose if the finance condition precedent in cl 2.1(f) had not been satisfied by the date which is '14 days after the date of the exchange of signed copies of' the agreement.

42    There were other pre-completion obligations, such as cl 2.6, which required the Sellers to use reasonable endeavours to ensure that Atlantic Nickel conducted its business materially in the ordinary course. Clause 2.6(c) also imposed obligations on Atlantic Nickel:

2.6    Carrying on of business

…

(c)    Between the date of this agreement and the earlier of Completion and termination of this agreement the Sellers and the Company must not, and must procure that any employees of the Company do not:

(i)    provide information regarding the Assets to any potential purchaser of the Assets other than the Buyer; or

(ii)    solicit any offers for the Assets from any person other than the Buyer.

43    The Receivers had the benefit of cl 9.1 of the Sale Agreement. Clause 9 provided exclusions and acknowledgements including a 'no liability' clause in relation to the Receivers. In particular MSI released the Receivers personally from all claims arising out of or in connection with or flowing from or related to the Sale Agreement (cl 9.1(b)(i)); and MSI provided a corresponding covenant not to sue the Receivers personally (cl 9.1(b)(ii)).

The events

44    Although the primary judge canvassed the facts and history in his reasons, in order to evaluate the grounds of appeal it is necessary to record some of the events and evidence relevant to them.

The initial protest by MSI, the threatened MSI proceedings and the first request for security

45    As noted, the Sale Agreement was entered into on 1 November 2017. When the finance condition precedent was not satisfied, on 22 November 2017 the Sellers and Receivers sent the termination notice (signed by Mr Tucker).

46    On 24 November 2017 MSI (by Mr Walter Milbourne, the 'director and controlling mind of MSI' (PJ [13])) informed the Receivers that it alleged cl 2.2(b) of the Sale Agreement had been breached in that reasonable assistance was not provided, invalidating the purported termination. Further allegations of objectionable conduct and failure to cooperate were included in correspondence from Russells (MSI's solicitors) to Clayton Utz (the Receivers' solicitors) dated 1 December 2017. That correspondence included the statement that:

MSI has instructed us to institute proceedings for specific performance and the necessary injunctive relief.

47    Clayton Utz responded on 4 December 2017, relevantly stating that:

Should your client take any action, whether injunctive or otherwise, it will need to provide immediate security for costs and provide the usual undertakings and security as to damages. I will provide you with an analysis of costs in due course.

48    Between December 2017 and July 2018, correspondence continued between Russells and Clayton Utz. Russells maintained the Sale Agreement remained on foot, continued to assert breaches of the obligations in cl 2.2, said that MSI would shortly issue proceedings for specific performance in the WA Supreme Court against the Receivers, the Sellers and Atlantic Nickel, and that Senior Counsel had been retained. It said MSI reserved its rights to sue for loss and damage. Russells also informed Appian of MSI's position.

49    On 27 July 2018 Clayton Utz confirmed completion of the sale to Appian. It asked when MSI would be instituting the anticipated proceedings. Clayton Utz also said that it had instructions to commence proceedings if no response was received within 72 hours.

50    On 3 August 2018 the Receivers commenced the WA Directions Proceeding.

The funding position leading up to the WA Directions Proceeding and the Draft Writ Proceeding

51    It is apparent that by that time MSI had been seeking litigation funding. On 19 December 2017 a funder known as LCM Finance informed MSI by email to Mr Milbourne that it had discussed MSI's application 'again' and its funding application would not be progressed any further.

52    Between 4 May 2018 and 16 May 2018, MSI by Mr Milbourne followed up on a funding request made to Ironbank Funding. Mr Milbourne told Ironbank he had an offer on the table, and Ironbank said that it was 'unlikely to get this one over the line'. Mr Milbourne responded by saying he had 'signed earlier this week' elsewhere when he had not heard back.

53    Correspondence from Harbour Litigation Funding suggests that offers of funding were made in November 2017 and December 2017 but not progressed, and a further offer was made on 11 May 2018 for a 'merits review' and pursuit of a claim against the Sellers and others. However, on 13 July 2018, Harbour informed MSI that its investment committee would not support reconsideration of MSI's case.

54    On 31 July 2018, Mr Stephen Russell (of Russells) spoke to a representative of a funder known as Vannin Capital. It is apparent that Vannin had been provided with a copy of an opinion from senior counsel in support of funding but more work was to be done. Funding was not obtained from Vannin.

55    It is also apparent that Mr Milbourne had approached a funder known as Woodsford Litigation Funding. By email dated 25 September 2018, Woodsford said it was reviewing the papers, but referred to the 'proposed number of defendants' and indicated reservations about adverse costs exposure. It seems that Woodsford did not agree to provide funding.

56    In summary, as at November 2018, when orders were made in both the WA Directions Proceeding and the Draft Writ Proceeding, MSI had sought funding for the proceedings it anticipated it may bring against the Sellers, the Receivers and others, but it had not secured any funding.

The scope of MSI's claims the subject of the Draft Writ Proceeding

57    In the WA Directions Proceeding, Vaughan J recorded in his reasons (Re Mirabela Nickel Ltd at [57]-[58], published on 5 November 2018) that MSI had threatened proceedings against the Receivers, the Sellers and others. His Honour noted that shortly prior to the hearing of the Receivers' application for directions, MSI had commenced the Draft Writ Proceeding which was listed before Master Sanderson, seeking leave to serve the proceeding overseas. MSI provided Vaughan J with a copy of the draft writ and statement of claim the subject of its application before Master Sanderson. The draft statement of claim included Atlantic Nickel and the Receivers as proposed defendants.

58    Justice Vaughan outlined in Re Mirabela Nickel Ltd at [68] what he saw as the substantive issues likely to arise from MSI's threatened litigation, including whether the Sellers were precluded from terminating the Sale Agreement under cl 2.5 because they had not complied with their obligation to use reasonable endeavours to ensure satisfaction of the finance condition precedent in accordance with cl 2.2.

59    His Honour made orders under s 424 of the Corporations Act that permitted the Receivers to distribute funds from the Appian sale, despite the MSI claims and the Draft Writ Proceeding. An order was also made to the effect that the Receivers were justified in defending, and causing the Sellers to defend, the proceedings 'to be commenced' by MSI as set out in the draft writ: Re Mirabela Nickel Ltd at [169].

60    The scope of the relief claimed by MSI at that point included a declaration that the Sale Agreement remained on foot, an injunction preventing completion of the sale to Appian and damages. Loss and damage were said to result from breaches of the Sale Agreement, being breaches of cl 2.2, the wrongful and premature purported termination of the Sale Agreement by issuing the termination notice, and the continuing refusal to cooperate with MSI to bring the Sale Agreement to completion. It was pleaded that the Receivers had induced the breaches of the Sale Agreement by the Sellers. In the alternative to declaratory relief and injunctions, MSI sought exemplary damages for breach of the Sale Agreement.

61    Therefore, the status of MSI's purported claims as at 5 November 2018 and its knowledge of the arguments it might raise against the Sellers, the Receivers and Atlantic Nickel were reflected in (at least) the draft writ and statement of claim provided to both Vaughan J and Master Sanderson. Master Sanderson's orders in the Draft Writ Proceeding were made only a few days later, on 8 November 2018.

The funding position between the November 2018 orders and the commencement of the WA Proceeding (May 2019)

62    On 8 November 2018 Clayton Utz wrote to Russells. It referred to the 'imminent' service by MSI of the writ, having regard to the orders of Master Sanderson; said that its clients would require 'substantial' security for costs; that public searches of MSI had been unable to identify assets in Australia; and requested, on the assumption that no litigation funding had been obtained, information as to how MSI proposed to fund the litigation.

63    On 19 November 2018, a representative sent an email to MSI regarding litigation funding from 'Therium'. The writer expressed concern with moving forward, indicating MSI's case 'will be viewed as a difficult one from a funder's perspective'.

64    Some six months passed, and the writ was not served. MSI had not secured litigation funding before the WA Proceeding was commenced.

The funding position after commencement of the WA Proceeding

65    The Receivers and Sellers commenced the WA Proceeding on 8 May 2019 seeking a declaration that the Sale Agreement had been validly terminated.

66    On 1 June 2019 Burford Capital rejected a funding application made by MSI on the basis that Burford's Investment Committee was unlikely to approve the matter for funding on the terms proposed. The refusal email said (emphasis added):

MSI currently seeks funding for its defence of a matter pending in Western Australia and then the prosecution of a potential subsequent claim (by separate action) based upon potential asserted upside from the subsequent action (that MSI may or may not bring) …

For the reasons noted above, we do not expect that Burford's Investment Committee would approve this proposed matter for funding on the terms as currently proposed. Wishing you all the best with your case.

67    This appears to be the first evidence that MSI was seeking litigation funding to pursue the WA Proceeding and 'a potential subsequent claim'.

68    On 4 June 2019 the Receivers and Sellers filed their statement of claim in the WA Proceeding.

69    On 12 June 2019 MSI secured limited litigation funding for the 'Proceeding' from Balance REV Ltd in the sum of $412,000 for fees and disbursements, plus GST, reflected in a 'Litigation Funding Agreement'.

70    The 'Proceeding' was defined as CIV1806 of 2019 (being the WA Proceeding), including any appeal.

71    The terms of the funding agreement included an exclusive option to fund 'Further Proceedings', defined to mean:

any further proceedings (except for the Proceedings), threatened proceedings or dispute resolution process in connection with the Claim.

72    The funding agreement defined 'Claim' to mean:

the claim or claims which MSI, RM [Mr Milbourne], or any entity or individual related to MSI or RM, may have against all or any of the Adverse Parties or any other party in connection with Mirabela Nickel Limited and/or the Santa Rita mine in Brazil, including any claims asserted by MSI (or RM) in the Proceedings.

'Adverse Parties' included the Receivers and the Sellers.

73    Under the funding agreement, MSI was not permitted to settle the WA Proceeding without the consent of Balance REV. Further, any 'Claim Proceeds', which included any settlement proceeds, were to be paid into trust and distributed in accordance with a 'priorities agreement'. Balance REV had a stake in the Claim Proceeds (funder shares set out in Schedule 2).

74    The option referred to in [71] above provided that Balance REV would evaluate the suitability of funding 'Further Proceedings' within 120 days after the WA Proceeding had resolved and provide MSI with notice if further funding would not be provided.

75    In accordance with a procedural requirement of disclosure, the existence of litigation funding was disclosed to the Supreme Court and the parties to the WA Proceeding on 13 June 2019.

MSI defence pleads breaches of cl 2.2 of the Sale Agreement

76    On 3 July 2019 MSI filed its defence to the statement of claim in the WA Proceeding. It made a positive plea in its defence that the termination notice was invalid. It pleaded that it was issued before the expiration of the time limit required by cl 2.5(a). It also pleaded the cl 2.2 defence; that is, that the notice was of no effect because the Sellers and Receivers failed to comply with their reasonable endeavours obligation under cl 2.2 of the Sale Agreement. It also asserted breaches of cl 2.6(c) and unconscionable or inequitable conduct by the Sellers.

Queries raised about overlap between draft writ and defence

77    MSI did not file or serve the draft writ and statement of claim the subject of the Draft Writ Proceeding despite the orders obtained from Master Sanderson. The potential remained for it to be served. Clayton Utz obtained access to the draft documents via application to the Supreme Court.

78    On 15 October 2019 Clayton Utz raised the content of the draft writ with Russells, asking whether the matters raised in the draft writ should be included in the WA Proceeding, and asking for confirmation that MSI accepted that if the Receivers obtained the relief they sought, MSI would be estopped from bringing the claims or similar claims contemplated by the draft writ, or it would be prevented from seeking to re-agitate matters relating to the validity of termination of the Sale Agreement, by reason that it would be an abuse of process to raise any defence or matters which ought properly to have been raised in the WA Proceeding in a subsequent proceeding.

79    Russells replied on 23 October 2019, stating that the WA Proceeding 'present[s] a valuable opportunity to have confined and important issues determined quickly and efficiently by the Court' and that 'the position of the parties will be substantially clarified by a determination of those issues and its speedy determination is likely to advance the resolution of the dispute which exists between the parties'. Russells stated that with those matters in mind, MSI did not intend to issue a counterclaim in the WA Proceeding and it rejected and 'declined otherwise' to 'debate the propositions' put by Clayton Utz.

80    The above exchange of correspondence came shortly before a pre-trial strategic conference, listed before Hill J on 31 October 2019.

The strategic conference

81    At the time of the strategic conference, by virtue of MSI's defence, both the cl 2.2 reasonable endeavours obligation on the part of the Receivers and Sellers and the cl 2.5(a) finance condition remained in issue on the pleadings and relevant to the validity of the purported termination, despite the absence of any counterclaim by MSI.

82    The primary judge set out in detail at PJ [59]-[66] the nature of the respective submissions made by counsel at the strategic conference and it is not necessary to repeat them in full. Of particular importance is the airing of the impact of MSI's decision not to file a counterclaim and the risk of later legal action against the Receivers.

83    The parties exchanged position papers in advance of the strategic conference. In their position paper the Receivers referred to MSI's unserved writ and statement of claim and raised the overlap in the respective proceedings (emphasis added):

There is a substantial overlap of factual and legal issues between this proceeding and the foreshadowed proceeding. Any argument with respect to Anshun estoppel could only be advanced after considering the judgment delivered in this proceeding. Even if judgment is delivered in the Receivers favour in this proceeding, the Receivers would remain in the situation where they face potential litigation either in the form of a proceeding concerning Anshun estoppel or being joined in litigation between MSI and other parties not joined to this proceeding. The practical utility in proceeding with this litigation as currently framed is substantially diminished. The Receivers' intent in seeing an end to the disputation will not be realised in such circumstances.

…

[W]hat matters for present purposes is that MSI holds a continuing intention to claim against a wider community of parties than are presently joined to these proceedings.

…

The Receivers are giving active consideration to what may be done in the circumstances. These include…seeking orders in proceedings in line with those made in Tyne (Trustee of the Argot Trust) v UBS AG [2019] FCA 628.

84    MSI's position paper did not respond to this, other than to state that the trial would involve little dispute on the primary facts and that the case would turn on the interpretation to be placed on 'largely uncontroversial facts and documents'.

85    It followed that at the strategic conference, attention turned to a 'trial on liability'. Senior counsel for MSI (Mr Zappia KC) proceeded on the basis that the trial would concern only the issue of whether the Receivers and Sellers had validly terminated the Sale Agreement. The Receivers submitted they may seek to amend the statement of claim in order to 'bring in' other matters in the absence of a counterclaim.

86    In this context, her Honour referred to the frequently acknowledged risks of split trials on liability and damages, and the following exchange with Mr Zappia proceeded (emphasis added):

Mr Zappia: This proceeding effectively will determine the issue of liability and for that reason the utility is evident, and it's evident for this reason: if we are successful on liability – that is, if we are able to resist the declaration and your Honour makes findings that the termination was not valid, that will leave only the question of relief to be determined.

…

It might leave a question of damages. In which case, presumably the receivers probably don't become involved, because it might be said that they weren't the party that was obliged to provide the asset.

Her Honour: Except in those circumstances if damages were sought – I mean, even if it wasn't – even if you didn't bring the receivers and managers in, it's almost impossible to imagine that those who appointed the receivers and managers wouldn't join them as a third party.

Mr Zappia: Your Honour, we accept – we accept that the issue in this proceeding is one of liability and what is effectively occurring is that there is a trial on liability and it is of great utility because if we fail on the question that has been raised – let's assume that your Honour were to find that the termination was valid, then that is the end of our ability to claim any relief and the court will not need to go into that complexity and we will not need to deal with other parties potentially not involved in this litigation. So that is …

Her Honour: But generally speaking, I mean, in those circumstances, where there is [a trial] on liability ahead of damages …

Mr Zappia: Yes.

Her Honour: …that's as a result of all issues being before the court and at that stage an application for an either preliminary issue or some application being brought and it being accepted that it's …

Mr Zappia: Yes.

Her Honour: …appropriate to split liability from relief, taking into account all of the comments that are made by Appeal Courts as to the dangers in courts at first instance seeking to split liability and damage.

…

There is a question as to if that is still agitated, as to whether that should either – and part of this will depend on the question as to the identity of the respective parties as to whether it's something that should be brought within these proceedings, whether if there is a present intention to commence proceedings, that those proceedings should be commenced and then listed and managed together so that if findings are required to be made that affect both proceedings, that they are dealt with.

And that is certainly a usual part of the appropriate case management and so there is that question that I think it's not necessarily a complete answer to say, well, look, you know, we need to deal with the proceedings that have been commenced, because part of this is the intention, you know, and the desire of this court and all courts to – that if there are proceedings commenced between parties that deal with an issue, will the determination of those proceedings bring the issue to an end, rather than it simply being, you know, act 1 of a multi-part production.

…

Mr Zappia: All sorts of things, but in terms of any prejudice that might be suffered by not bringing this – by not bringing all matters before the court now, if we were successful, we are the ones that are going to suffer the prejudice. This is the point that your Honour made right at the outset. If we were then to subsequently bring a proceeding, a party would have the right to come along and say, 'That is an abuse, because you ought to have sought that relief and brought – and ventilated those issues at the first hearing.' So we are the only party that would suffer prejudice in that regard and we would have reasons for saying no, there is no abuse here. It was perfectly appropriate for the court to determine the issue of liability, because if it was decided against us, then the court wouldn't have to expend resources and the parties wouldn't have to expend resources on the more complex issues of relief. And so we see great utility in that and - - -.

Her Honour: But that might be if all of the issues were in the proceedings and then a decision was made that liability would be determined first. You know, one – I mean, it's slightly simplistic to say – certainly as far as, you know, questions of issue estoppel, I accept that that is a matter that falls entirely on your side of the table.

Mr Zappia: Yes.

Her Honour: But the other thing the court has to take into account in circumstances where the plaintiffs are receivers and managers are the interests of creditors of the company, and so it's not what might otherwise – if this was a company that wasn't in external administration and it is simply two companies against each other, then that may have a greater weight to say, look, the parties have chosen to do this, but in these circumstances there are interests of third parties. I accept not parties to these proceedings, but whose interests are impacted if these proceedings or the issues aren't dealt with in a final fashion.

…

Mr Zappia: …The alternative [is] to enlarge the proceeding in relation to matters which we don't know about yet. We don't have even a draft amended statement of claim and it will fall into a big black hole almost certainly.

It won't be litigated for some time, more expensive and the parties and the court which has managed the proceeding, if I may say so with great efficiency to date, will have lost a golden opportunity, a golden opportunity to resolve a critical matter that will either resolve the proceeding once and for all or will almost certainly assist in a resolution or a potential resolution of it outside of court and the court will have lost that golden opportunity, because we don't know what is planned by the amendments.

And the third matter that I – so there is great benefit to the receivers having a trial on liability in December on this issue, and the creditors, because they will know where they stand one way or the other. And the third matter is what possible amendment can be made by my learned friend that can necessarily ventilate all the issues he wishes to ventilate. For example, if there is a claim to be brought for inducing breach of contract – that is, a third party inducing a breach of contract, how is he able to cure that through an amendment? So there is that factor to be taken into account. Now, he's aware of the other proceeding and again, I'm putting a position that we hope doesn't eventuate, but if we were to be unsuccessful, the other proceeding is wholly predicated on an invalid termination. So that falls away. Wholly predicated on it.

Yes. The tort of inducing breach of contract is premised on a breach of contract which is an invalid termination. So it's wholly predicated on it. So it's of great utility because if he [MSI] succeeds, the end of this proceeding, the end of that proceeding, and it's an early determination on a critical issue that will no doubt advance prospects of resolution.

The alternative is some large, large piece of litigation that clogs up the court list. It won't see the light of day next year. I'm really confident about that, but I will be sitting here before your Honour at some stage next year and a golden opportunity would have been missed that the court has recognised and accommodated the parties with …

…So they're the matters, your Honour. We see this as a golden opportunity, and it will be lost for all time.

87    What might properly be made of this exchange is addressed below.

88    Further communications between Clayton Utz and Russells at around this period included a letter of 30 November 2019 in which Russells relevantly said:

MSI accepts that if your clients succeed in this proceeding, that will be the end of any litigation, certainly between the current parties, in relation to the MSI Asset Sale Agreement.

89    Mr Russell deposed in an affidavit of 12 May 2022 (relied on in the stay application before the primary judge) that in the context of MSI's decision not to bring a counterclaim in the WA Proceeding (emphasis added):

MSI wished to keep the WA Proceeding simple for several reasons:

…

(ii)    Given the limited relief sought by the [Receivers and Sellers], if the conveyancing issues raised by their case were determined against MSI (so that the MSI Asset Sale Agreement was validly terminated), it appeared – particularly at the time of the strategic conference in the WA Proceeding on 31 October 2019 – that MSI would have no claims against the [Receivers and Sellers] or any other party.

Amendment of statement of claim after strategic conference

90    The Receivers and Sellers filed an amended pleading in the WA Proceeding on 9 December 2019. The amendments introduced a claim for relief based on cl 9 of the Sale Agreement by way of a declaration that the Receivers were released from all claims which MSI had articulated in its draft writ and accompanying statement of claim. But, as matters eventuated, Russells then wrote the letter of 17 December 2019 (set out below), disavowing an intention to rely on those matters 'in that form' against the Receivers.

MSI's efforts to source funding for a counterclaim

91    Despite MSI's assertion through its solicitors by the 23 October 2019 letter that it would not pursue a counterclaim, MSI discussed that prospect with funders following the strategic conference.

92    On 10 December 2019 and 11 December 2019, emails were exchanged between Russells, MSI and Balance REV about funding in relation to a counterclaim and having regard to the amended statement of claim. Mr Milbourne said he was 'inclined not to press for a counterclaim as it seems to me we can keep a narrow trial on budget and on time for a rapid resolution'. In response, Balance REV indicated that 'as discussed …presently there is no appetite at [its] end to fund any counterclaim' and that 'we have a good chance of resolving MSI's claims as part of the current proceedings'.

Application to facilitate taking evidence from MSI's financier dismissed

93    On 12 December 2019 the plaintiffs in the WA Proceeding (the Sellers and the Receivers) filed a summons seeking orders that letters of request issue to judicial authorities in Singapore to facilitate taking evidence from representatives of Trafigura Pte Lte, the entity which MSI proposed would finance the acquisition under the Sale Agreement. The application was dismissed by Hill J on 22 January 2020. It was dismissed on the basis that it was outside the scope of the relevant power in s 110 of the Evidence Act 1906 (WA): Mirabela Nickel Ltd (in liquidation) (receivers and managers appointed) v Mining Standards International Pty Ltd [2020] WASC 4 at [55] (Letter of Request decision). However, her Honour usefully summarised the pleaded case in the WA Proceeding as it stood at that time (at [18], footnotes deleted, emphasis added):

The defendant asserts that the ASA [Sale Agreement] has not been validly terminated by the plaintiffs on a number of grounds. First, the plaintiffs purported to terminate the ASA prior to the date by which the Finance Condition was required to be satisfied. Second, the parties had not entered into an agreement requiring the Finance Condition to be satisfied by 22 November 2017. Third, the plaintiffs had agreed not to terminate the ASA without giving the defendant adequate prior notice, which it failed to do. For this reason, the defendant contends that the plaintiffs were estopped from issuing the notice of termination. Fourth, the plaintiffs breached their obligations under cl 2.6(c) of the ASA by providing information to the ultimate third party purchaser and soliciting an offer for the Mirabela Assets. By reason of their alleged breach of the ASA, the defendants plead that the plaintiffs were not entitled to terminate the ASA. Finally, it is pleaded that the plaintiffs failed to comply with their obligations under cl 2.2 of the ASA and, as a consequence, were not entitled to terminate the ASA.

94    Clearly, it was understood at this point that compliance by the Sellers and Receivers with the reasonable endeavours obligation under cl 2.2 remained in issue in the WA Proceeding.

The 'no proceedings' letter of 17 December 2019

95    Exchanges continued after the strategic conference in which Clayton Utz sought confirmation from Russells as to whether a counterclaim would be issued and whether MSI intended to serve the writ (relevant to Hill J's reference to proceedings potentially being heard together).

96    Relevantly, in a letter to Russells of 3 December 2019 Clayton Utz expressly asked the question:

If the Receivers succeed in this proceeding, does MSI reserve the ability to sue other parties (such as Appian or the Noteholders) in relation the MSI Sale Agreement?

97    Russells responded on 5 December 2019. They did not answer the question. They said:

We acknowledge receipt of your letter dated 3 December 2019. We do not believe that this letter raises any issue not already comprehensively canvassed in our correspondence and therefore decline to further ventilate these matters. It goes without saying that you should not assume that our non-response to any of your tendentious propositions amounts to assent.

98    Clayton Utz continued to seek confirmation via Russells of MSI's position.

99    On 17 December 2019 Russells informed Clayton Utz that:

In case it was not apparent to you from our previous correspondence, we confirm that MSI does not intend to issue proceedings against the Receivers in the form of the draft Statement of Claim [in the Draft Writ Proceeding].

Further, absent any obligation to do so, MSI hereby irrevocably undertakes to the Receivers that it will not institute any proceedings in any court of competent jurisdiction in relation to any cause of action pleaded in the [draft Statement of Claim] without giving to the Receivers care of your firm not less than 21 days' notice in writing of their intention in that regard, any such notice to be accompanied by the draft proceedings which MSI may intend to issue.

The abandonment of the cl 2.2 defence

100    On 5 February 2020 the Receivers filed a notice of appeal in relation to Hill J's dismissal of their application to obtain evidence in Singapore.

101    On 6 February 2020 Russells recommended to MSI that it abandon the cl 2.2 defence, on the condition that the appeal against the Singapore decision be dismissed by consent with trial dates for April 2020 allocated. Russells observed that a successful appeal would result in a letter of request issuing, delaying any trial.

102    In communications between Russells, MSI and Balance REV, Mr Milbourne said that subject to counsel's advice, the pleading should be abandoned because:

… maintaining the relevant defence (which is one of five of MSI's defences and which arises only if we are wrong about the 10+14≠22 construction defence) is not worth the cost and delay associated with the appeal process …

103    The likely costs of an appeal (said to be $30,000-$50,000) were also raised as a factor. Mr Milbourne noted that pursuing the defence 'may cost me 50k and require a 3+ month delay for no real utility in the case prospects overall'. Balance REV agreed with the proposed abandonment particularly to avoid delay in trial dates if the appeal were pursued. Another of MSI's counsel advised that 'it makes strategic sense to drop the defence based on non-compliance with cl 2.2'.

104    MSI filed an amended defence abandoning the cl 2.2 claim on 12 February 2020 (para 22(b) of the defence was deleted).

105    The abandonment of the cl 2.2 defence in February 2020 was significant. It had the result that the WA Proceeding continued to trial on more limited grounds than had been anticipated at the time of the strategic conference.

106    Mr Russell provided affidavits on behalf of MSI and was cross-examined before the primary judge as to the reasons why MSI abandoned that part of its defence and why it did not pursue the cl 2.2 reasonable endeavours obligation claim in the WA Proceeding that it now pursues in the Federal Court Proceeding.

107    According to the affidavits, the sole reason for amending the defence to abandon a claim under cl 2.2 was to 'preserve an early trial of the WA Proceeding'.

108    By his affidavit of 12 May 2022, Mr Russell gave evidence that in his opinion, the appeal relating to taking evidence in Singapore was very likely to delay the WA Proceeding. There would be further delay should the appeal succeed, and discovery proceedings commence internationally. Mr Russell estimated a delay of one to two years. He said that accordingly a decision was made to amend MSI's pleadings to remove any allegations in relation to cl 2.2 and the appeal relating to evidence in Singapore was discontinued. Mr Russell relevantly said:

[37]    I consulted counsel; and I gave advice to Mr Milbourne in respect of this possible delay. I received instructions from Mr Milbourne to amend the Defence to abandon reliance on the allegations that the Receivers and the Sellers had acted in breach of cl 2.2 of the MSI Asset Sale Agreement so as to disentitle them from relying on any right to terminate the agreement that may have been available to them. These amendments had the effect of removing the issues to which the WA Plaintiffs contended the overseas evidence was relevant.

[39]    The sole reasons for amending the Defence were to put an end to the possible appeal and, therefore, to secure a trial of the WA Proceedings at the earliest possible time and without the delay caused by the appeal. It was and remains my opinion, which I communicated to Mr Milbourne when seeking instructions to amend the Defence, that the defence relying on the breaches by the WA Plaintiffs of cl 2.2 of the MSI Asset Sale Agreement would probably have succeeded.

109    In a later affidavit dated 22 September 2023, Mr Russell maintained that the 'sole reason' for deleting the cl 2.2 defence was to preserve an early trial of the WA Proceeding. Mr Russell affirmed this under cross examination.

110    Mr Russell also said in his oral evidence that prior to the amendment, the WA Proceeding had been defended because of non-compliance with cl 2.2, that being 'one of the reasons why the purported termination was invalid'. Mr Russell agreed that cl 2.2 was a central element in the case brought in the Federal Court against Atlantic Nickel.

The outcome of the WA Proceeding

111    The trial proceeded before Hill J in December 2020. Her Honour identified ten issues for determination (Mirabela Trial at [35], reference to the 'Agreement' being to the Sale Agreement):

(a)    On a proper construction of the Agreement, what was the date by which the Finance Condition was required to be satisfied? (Issue 1)

(b)    Did the parties agree to extend the date for satisfaction of the Finance Condition until 22 November 2017? (Issue 2)

(c)    Is MSI estopped from denying the date the Agreement was exchanged was 1 November 2017? (Issue 3)

(d)    Did the Receivers agree to provide MSI with 24 hours' notice prior to terminating the Agreement? If so, are the receivers estopped from issuing the notice of termination? (Issue 4)

(e)    Did Mr Tucker on behalf of the plaintiffs make false and misleading statements as to whether the plaintiffs intended to terminate the Agreement and whether they were in discussions with other parties? (Issue 5)

(f)    Was the termination of the Agreement founded upon unconscionable or inequitable conduct by the Receivers by asserting a right to terminate under cl 2.5 of the Agreement which they knew or must have known to be false? (Issue 6)

(g)    Were the Receivers in breach of cl 2.6 of the Agreement? If so, did this disentitle them from exercising any right to terminate the Agreement? (Issue 7)

(h)    Was the notice of termination issued by the Receivers on 22 November 2017 valid? (Issue 8)

(i)    Did MSI elect to accept the Receivers' termination of the Agreement? (Issue 9)

(j)    Did MSI release the Receivers from any claim it might otherwise have by reason of cl 9.1 of the Agreement? (Issue 10)

112    Reasons were delivered on 3 March 2023, running to some 645 paragraphs. On 19 May 2023, orders were made dismissing the plaintiffs' claims. Her Honour found it was not necessary to determine issues 4, 5, 6 and 7 although her Honour made findings in relation to these issues (Mirabela Trial at [608]-[621], [622]-[632], [633]-[644] and [635]-[643] respectively).

113    The primary judge summarised the outcome of Hill J's decision, focusing on the scope of claims that were determined, as follows (reference to the 'ASA' being to the Sale Agreement):

[87]    In Hill J's very careful and thorough decision, her Honour held that: the ASA was entered into on 10 November 2017, when the last party executed it, such that the Finance Condition needed to be satisfied 14 days from that date; the time for satisfaction of the Finance Condition was not extended by agreement between the parties; MSI was not estopped from denying that the date on which the ASA was executed was 1 November 2017; the ASA had not been validly terminated; and MSI's request for repayment of the deposit was not an acceptance of the validity of the purported termination. In substance, the conclusion was that the notice of termination issued by the Sellers and the Receivers was not efficacious.

[88]    As a result of those conclusions, it was unnecessary for Hill J to deal with a number of additional contentions which the parties had raised. Whilst this was recognised by her Honour, some obiter observations were made in relation to several issues.

MSI foreshadows the commencement of new proceedings

114    On 13 July 2021 (well before judgment was delivered by Hill J), Russells wrote to Clayton Utz, referring to the 17 December 2019 letter and stating:

We refer to our letter to you dated 17 December 2019, in which MSI undertook, without admission and without the need to do so, not to institute any proceedings in relation to any cause of action pleaded in a certain superseded draft Statement of Claim without giving to the Receivers care of your firm not less than 21 days' notice in writing of their intention in that regard.

In discharge of that undertaking, we attach a draft originating application and statement of claim that MSI intends to institute at the appropriate time.

115    Prior to filing the originating proceeding, communications ensued between Russells and Clayton Utz, relevantly about reference to documents that were disclosed in the WA Proceeding, but Russells also contended that the Receivers had no interest in the proposed Federal Court Proceeding.

116    On 3 November 2021 Clayton Utz wrote to Russells contending, amongst other things, that MSI had strategically withdrawn its cl 2.2 defence in the WA Proceeding, but it now sought to pursue substantially identical claims in the Federal Court Proceeding. They alleged abuse of process by way of tactical manoeuvring as discussed in UBS v Tyne and the risk of prejudice to public confidence in the administration of justice through the risk of inconsistent findings. They also raised the prospect of an Anshun estoppel.

The Federal Court Proceeding

117    MSI commenced the Federal Court Proceeding on 1 November 2021.

118    The primary judge summarised the nature of the Federal Court Proceeding initiated by MSI against Atlantic Nickel in the period when the decision in the WA Proceeding remained reserved. His Honour summarised the claims in this Court as follows:

[90]    … In general terms, MSI makes claims against Atlantic Nickel for:

(a)    damages for Atlantic Nickel's breach of contract;

(b)    further or alternatively, damages for inducing a breach of contract by the Receivers and the Sellers;

(c)    further or alternatively, damages under s 236 of the Australian Consumer Law (being Sch 2 to the Competition and Consumer Act 2010 (Cth)) for contravention by Atlantic Nickel of s 21, namely the prohibition against unconscionable conduct; and

(d)    further or alternatively, damages under s 236 of the Australian Consumer Law for loss caused by Atlantic Nickel being involved in a contravention of s 21 by the Receivers and the Sellers.

…

[92]    In substance, MSI's allegations are to the effect that Atlantic Nickel, the Receivers and the Sellers failed to observe the obligations in the ASA to provide reasonable assistance to MSI or to act so as to give it the benefit of the agreed terms. It is specifically alleged that their conduct prevented MSI from securing finance to complete the purchase and, further, that they breached the obligation not to deal with third parties whilst the ASA was on foot. The pleading sets out, in some length, the terms of several letters, emails, text messages, and telephone conversations in support of the allegations.

[93]    The gravamen of the complaints made is that Atlantic Nickel breached the ASA or induced the Receivers and the Sellers to breach it in several respects. The same or similar conduct is also characterised as constituting unconscionable conduct, within the scope of s 21 of the Australian Consumer Law, by the Receivers and, especially, Mr Tucker. It is then said that Atlantic Nickel was a person involved in that unconscionable conduct or that it engaged in unconscionable conduct on its own behalf.

[94]    The substance of MSI's alleged damage is its lost opportunity to complete the ASA to acquire the Assets, and the quantum of the damage may be around USD745 million.

119    The primary judge also summarised the ensuing cross-claim by Atlantic Nickel relevantly against MSI and the Receivers:

[96]    On 13 April 2023, Atlantic Nickel filed a cross-claim in the proceedings against MSI. It also makes claims against Mr Milbourne as the second cross-respondent, and the Receivers as the third and fourth cross-respondents. In part, it seeks a declaration that there was no binding agreement constituted by the ASA or, alternatively, that the date for satisfaction of the Finance Condition was 22 November 2017. As against the Receivers, it claims damages for breach of contract and an order that the Receivers are liable to MSI for any damages for unconscionable conduct, if the cognate allegations are made good against it by MSI.

120    Against that backdrop on 9 June 2023 both Atlantic Nickel and the Receivers applied to the primary judge for orders permanently staying the Federal Court Proceeding. They also filed their notices of appeal from the decision of Hill J in the WA Proceeding on the same day.

MSI's attempts to obtain litigation funding for Federal Court Proceeding

121    MSI sought further litigation funding in the lead up to the commencement of the Federal Court Proceeding.

122    Russells made further contact with Vannin on 27 April 2021. It said that soon after Appian acquired the interests in Atlantic Nickel in July 2018, its assets were re-valued at USD795 million (we interpolate to note that this was apparently revealed by Appian in September 2020: PJ [183]). MSI invited an expression of interest to fund MSI's claim against Atlantic Nickel, noting that the WA Proceeding before Hill J was reserved and that 'whichever side fails will very likely appeal'.

123    On 12 July 2021 Russells wrote to Balance REV stating they had been 'working on the Stage 2 proceedings'.

124    This coincides with the timing of the letter from Russells to Clayton Utz of 13 July 2021 referred to above.

125    Balance REV notified MSI on 29 October 2021 that it would not fund the proposed Federal Court Proceeding, stating relevantly:

We do not share your view that the possible impending sale of the asset for c. $1BN necessitates the immediate commencement of the Further Proceedings … Even if we did share your views on urgency, we don't consider that the benefits of commencing now outweigh the significant own side costs (including security for costs) and adverse costs risks associated with commencing the Further Proceedings. We consider that the prudent course is to await judgment from the SC of WA (which should be imminent), assess the findings made in that judgment and then make any decisions regarding next steps. This is the course that we all envisaged at the time that litigation funding was sought and provided for this matter.

126    A further brief and invitation to make a funding proposal was sent to Vannin on 31 October 2021 which was rejected on 8 November 2021.

127    On 9 November 2021 Russells wrote to Omni Bridgeway following up on a brief that had apparently been provided.

128    MSI did not obtain further funding until 31 March 2022 when it entered into a funding agreement with Omni Bridgeway.

Overlap of subject matter of proceedings

129    Following the appeal hearing, the Court asked the parties to provide an agreed schedule of pleadings to illustrate the alleged overlap across the claims made by MSI in each of the proposed statement of claim in the Draft Writ Proceeding (23 October 2018), the WA Proceeding (fourth amended defence, particulars of defence and rejoinder) and the Federal Court Proceeding (amended statement of claim dated 18 March 2022). The parties were unable to agree as to whether there was relevant equivalence between certain parts of the pleadings, but the task that was undertaken provided some assistance.

130    The schedule informed a number of matters, including (first) the knowledge of MSI as to its potential claims against Atlantic Nickel and the Receivers, both prior to and at the time of the WA Proceeding, evidenced by the Draft Writ Proceeding and the WA Proceeding defence respectively; (second) the potential for inconsistent findings; and (third) the extent to which the Federal Court Proceeding disclosed allegations made by MSI about the conduct of the Receivers that reveal the likelihood that Atlantic Nickel would have joined the Receivers in that proceeding, as it subsequently did.

131    Based on the schedule, six categories of overlap may be identified. The summary does not purport to be a complete analysis of all allegations and underlying facts, but reveals clear themes as to the claims relied upon in both the WA Proceeding and the Federal Court Proceeding and the underlying conduct of the Receivers and Sellers relied upon by MSI.

Sellers' premature termination of the Sale Agreement (cl 2.5)

132    The premature termination dispute (cl 2.5(a)) was determined in the WA Proceeding and by the Court of Appeal and remains pleaded in the Federal Court Proceeding.

133    In the Federal Court Proceeding, although MSI only sues Atlantic Nickel directly, it maintains an allegation that the Receivers and the Sellers breached the Sale Agreement by purporting to terminate it under cl 2.5(a):

(a)    prior to the time for compliance with the finance condition; and

(b)    at a time when the Receivers and Sellers had not complied with their cl 2.2 obligations.

Breaches of reasonable endeavours clause (cl 2.2)

134    The Draft Writ Proceeding pleading included a claim that the Receivers and Sellers were not entitled to, or were estopped from, issuing a valid termination notice, because they were in breach of their cl 2.2 obligations.

135    As discussed above, until 12 February 2020, in its WA Proceeding defence MSI asserted the alleged termination was invalid because the notice was issued prior to the time for compliance with the finance condition under cl 2.5(a) and because the Sellers and Receivers failed to comply with their obligations under cl 2.2. Particulars relied upon included failure by the Receivers and Sellers to assist MSI to have access to Atlantic Nickel's mine site, financier, information and documents; the Receivers and Sellers hindering MSI from obtaining such access; and the conduct of the Receivers and Sellers in discouraging noteholders from agreeing to provide finance to MSI and encouraging them to await a better offer from Appian. These claims were deleted by the 12 February 2020 amendment.

136    The Court of Appeal did not address any question of compliance with the cl 2.2 reasonable endeavours obligation as it was not in issue at first instance (after 12 February 2020) or on appeal.

137    In the Federal Court Proceeding, the centrality of cl 2.2 of the Sale Agreement and the alleged involvement of the Receivers is apparent. MSI maintains a claim against Atlantic Nickel of breach of the cl 2.2 reasonable endeavours obligation, and asserts that prior to the date of exchange of counterpart Sale Agreements, Atlantic Nickel by its conduct inhibited the ability of MSI to satisfy the finance condition and achieve completion. The content of Atlantic Nickel's reasonable endeavours obligation is said to be informed by the conduct in the preceding period of both Atlantic Nickel and the Receivers. MSI alleges the Receivers inhibited its ability to satisfy the finance conditions of the Sale Agreement, including by breaching the obligation in cl 2.2(b) of the Sale Agreement to provide MSI with access to Bradesco, and by providing advice to the noteholders that falsely represented the date for satisfaction of the finance condition and inducing them to authorise the Receivers to terminate the Sale Agreement.

138    MSI also pleads that the Receivers and Sellers breached the cl 2.2 obligations by 'a campaign of pressure' on the part of the Receivers in relation to the date for finance approval, and inhibited the efforts of MSI to satisfy the finance condition and to achieve completion under the Sale Agreement. MSI pleads that the Receivers and Sellers breached the Sale Agreement by purporting to terminate the Sale Agreement at a time when they had not complied with their cl 2.2 obligations.

Breaches of 'no solicitation' clause (cl 2.6(c))

139    In the Draft Writ Proceeding, MSI pleaded that after its execution, the Receivers and Sellers repudiated the Sale Agreement by soliciting and negotiating with Appian and providing information to it, in breach of cl 2.6(c) of the Sale Agreement.

140    In the WA Proceeding, MSI relied on effectively the same alleged conduct by the Sellers in pleading in its defence that the Sellers were in breach of cl 2.6(c).

141    In the Federal Court Proceeding, MSI pleads that Atlantic Nickel breached cl 2.6(c) by providing financial information to Appian. It also pleads that the Receivers breached cl 2.6(c) by providing information relevantly to Appian about MSI's non-compliance with the finance condition precedent and the status of the Sale Agreement.

Allegations of inducing breach of contract

142    MSI pleaded in the Draft Writ Proceeding that the Receivers procured and induced the Sellers and Atlantic Nickel to breach the Sale Agreement.

143    In the WA Proceeding, prior to its deletion by the 12 February 2020 amendment, MSI pleaded that the Sellers and Receivers hindered MSI from satisfying the finance condition precedent and asserted that they had not complied with their cl 2.2 obligations.

144    In the Federal Court Proceeding, MSI pleads that Atlantic Nickel induced the alleged breaches of contract by the Receivers and Sellers (and MSI relies on the conduct of the Receivers relating to matters such as statements about the contractual period for satisfaction of the finance condition and the purported date for valid termination, communication of the purported date to others, communications with Appian, and inhibiting MSI in its efforts to obtain finance).

Allegations of unconscionable and inequitable conduct contrary to s 21 Australian Consumer Law (ACL)

145    The WA Proceeding included allegations that the termination of the Sale Agreement was invalid because it was founded on unconscionable or inequitable behaviour in that the Sellers falsely asserted a right to terminate (including based on an incorrect assertion as to the date for compliance with the finance condition precedent), and that the Receivers and Sellers falsely represented to MSI that they had not received competing offers or were engaged in competing bids.

146    In the Federal Court Proceeding, MSI pleads that Atlantic Nickel engaged in a pattern of conduct which in all the circumstances was unconscionable and contravened s 21 of the ACL. Although the allegation is brought against MSI, it relies in part on the conduct of the Receivers (see also [236]-[237] below).

Relief claimed

No overlap relating to relief

147    In the WA Proceeding, MSI was a defendant and brought no counterclaim.

Claims for exemplary damages

148    The Draft Writ Proceeding pleading included a claim for exemplary damages against all defendants (Atlantic Nickel, the Receivers and the Sellers), based on a 'contumelious disregard' for MSI's rights.

149    A similar claim is made against Atlantic Nickel in the Federal Court Proceeding. It is alleged that Atlantic Nickel, in procuring and inducing breaches by the Receivers and Sellers of the Sale Agreement, was high-handed, malicious and its conduct constituted conscious wrongdoing in circumstances of 'contumelious disregard of MSI's rights'.

Other relief

150    In the Draft Writ Proceeding, MSI sought a range of relief (such as specific performance) that was not available after completion of the Appian sale.

151    However, relief was also sought in relation to breaches by premature termination (cl 2.5), the breaches of the reasonable endeavours obligation (cl 2.2) and the breaches of the no-solicitation clause (cl 2.6(c)), together with the allegations of inducement of breach of contract. As against the Receivers, MSI sought damages, including exemplary damages, for procuring or inducing breach of contract on the part of the Sellers and Atlantic Nickel.

152    In the Federal Court Proceeding, MSI seeks damages from Atlantic Nickel including damages for the contraventions of s 21 of the Australian Consumer Law and for breach of contract and for inducing the breaches of contract by the Receivers and Sellers, including the alleged breach by premature termination (cl 2.5), breaches of the reasonable endeavours obligation (cl 2.2) and breach of the no-solicitation clause (cl 2.6(c)).

153    Atlantic Nickel seeks contribution from the Receivers. It seeks in the prayer for relief, and on the assumption that the allegations in the statement of claim are established, compensation for Atlantic Nickel's loss resulting from the Receivers' unconscionable conduct; an indemnity in relation to any of Atlantic Nickel's liability to MSI; and an order for contribution having regard to the relative culpability of the Receivers and Atlantic Nickel for any loss suffered by MSI.

Primary judge's determination of stay application

154    The primary judge considered the principles examined in the authorities, and in particular the decisions in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507; UBS v Tyne; Robinson v Deep Investments Pty Ltd [2018] FCAFC 232; and Lantrak: PJ [99]-[120].

155    His Honour found that:

(a)    The pre-hearing conduct of the parties in the WA Proceeding was such that all that was effectively in dispute at trial was the efficacy of the Receivers' purported termination of the Sale Agreement, and no party could have proceeded on the basis that MSI had brought all the claims it might bring for damages arising out of the Sale Agreement: PJ [133];

(b)    Atlantic Nickel was not a party to the WA Proceeding. MSI was responding to a narrow claim brought by the Receivers and was prepared to do so fully. However, in that context it had no cause to litigate as against the Receivers. At no time did it permit the Receivers or the Sellers to believe that all disputes concerning the Sale Agreement were to be resolved by the WA Proceeding: PJ [135];

(c)    Prior to the trial MSI withdrew reliance on cl 2.2 by way of the amended defence, and did so because it was only 'conditionally relevant' and because it sought to advance the action: PJ [131], [137];

(d)    MSI could have made a cross-claim against Atlantic Nickel in the WA Proceeding but this would have greatly complicated and delayed the resolution of what was otherwise a five-day hearing about the Receivers' declaratory relief. MSI's chosen course was defensible and transparent: PJ [138]-[140]. Although claims for damages relating to conduct which MSI said prevented it from completing the Sale Agreement were not wholly dependent upon whether the Receivers validly terminated it, it was not unreasonable for MSI to seek to have the Receivers' determination issue resolved as a matter of priority: PJ [148]-[149];

(e)    MSI had a general overarching reason not to bring a cross-claim in the WA Proceeding against Atlantic Nickel or others, being that it was not in a financial position to do so. Mr Russell, MSI's solicitor, gave evidence to that effect: PJ [140]-[142], [150]-[161];

(f)    MSI did not have the financial resources to commence and prosecute its claims relating to non-completion of the Sale Agreement until about the time the Federal Court Proceeding was commenced: PJ [162];

(g)    Financial inability to commence proceedings is relevant and can in some circumstances provide a reasonable excuse for the purposes of the doctrine of abuse of process. UBS v Tyne was not concerned with a case where a party was forced by lack of means to choose one course rather than another: PJ [164]. There was no deliberate holding back by MSI of a claim for forensic advantage: PJ [169];

(h)    Transparency of an intention to pursue litigation in the future lessens the likelihood of later proceedings amounting to an abuse of process. The Receivers and the Sellers were alive to the possibility that the WA Proceeding would not resolve all issues in dispute in relation to the Sale Agreement: PJ [178];

(i)    It was not clear on the materials that it would have been apparent to MSI that if instituted, the Receivers would be joined in the Federal Court Proceeding. It was not suggested that MSI knew of the nature of any relationship between the Receivers and Atlantic Nickel at the time that regulated their rights and liabilities: PJ [180]-[181];

(j)    The circumstances in which the parties acted evolved over time. Although MSI was not initially (and for an ongoing period) in a financial position to pursue claims arising from non-completion of the Sale Agreement, facts came to light to the effect that the Receivers had retained some $38 million in Australia, suggesting to MSI that perhaps the Receivers might be amenable to a settlement. Further, Appian, which had purchased Atlantic Nickel for around USD65 million revealed in September 2020 that it had revalued the net present value of the mine at USD795 million. As a result, Mr Russell considered that there were good prospects that litigation funding might become available. MSI's decision to issue the Federal Court Proceeding in November 2021 was therefore not 'a tactical decision designed to thwart the efficient administration of justice' but a product of those circumstances, and so a matter that did not weigh in favour of there being an abuse: PJ [182]-[186];

(k)    The risk of some inconsistency in findings is not determinative of an abuse. A risk of inconsistent judgments is of greater concern. Having considered the authorities (including as to Anshun estoppel), the task to be undertaken was to ascertain whether MSI seeks to secure a finding in the Federal Court Proceeding which is inconsistent with a finding that was fundamental to the findings which supported Hill J's reasons in the WA Proceeding: PJ [190]-[194];

(l)    Of the ten issues identified by Hill J as relevant to the WA Proceeding, it had been necessary for her Honour to determine only six. There was nothing in the scope of MSI's claims which would seek conflicting determinations in this Court: PJ [200];

(m)    Many of the alleged findings of fact made by Hill J said to give rise to a risk of inconsistency were obiter. Obiter statements in reasons for judgment will not suffice to raise an issue estoppel (citing Aavelaid v Dental Board of New South Wales (Unreported, NSWCA, 16 October 1998) (Mason P, Meagher and Beazley JJA) and the authorities referred to therein). However, abuse of process is necessarily wider than issue estoppel. Re-litigation of findings in initial proceedings that were not necessary for its determination may be considered an abuse, particularly if the conduct is thereby oppressive. It would be difficult to identify oppression unless there is re-litigation of numerous obiter findings that substantially form the basis of the second proceeding: PJ [206]-[207];

(n)    Because Atlantic Nickel was not a party in the WA Proceeding, the consequence of re-litigation against it is not the concern. Rather, the concern is that the Receivers, as cross-respondents, have to confront issues they say have already been determined, and so there remains the potential for overlap and inconsistency: PJ [207];

(o)    Consideration of Hill J's conclusions on central determinations on other matters (such as estoppel) does not reveal that MSI's claims in this Court seek inconsistent determinations: PJ [208]-[214];

(p)    Examination of the 'minutiae of the stay applicants' claims' as to overlap and inconsistency rested on a comparison of the pleaded cases, and did not identify or articulate what the real contests of fact might be or how they were determined in the WA Proceeding: PJ [215]-[216];

(q)    Nor were particular allegations of inconsistency either established, relevant or related to obiter findings that were fundamental to Hill J's decision: PJ [217]-[232];

(r)    In contrast to the circumstances of UBS v Tyne and Robinson, MSI is not attempting to relitigate anything that was fundamental to Hill J's judgment, and no relevant overlap or inconsistency arises: PJ [237];

(s)    There was no inappropriate tactical manoeuvring on the part of MSI. Although taken alone, the apparent duplicity of MSI's conduct in threatening to bring the proceeding the subject of the Draft Writ Proceeding (which included allegations of wrongful conduct) and then failing to in fact commence them might be seen as inappropriate tactics, the 'impersonation of an entity eager to litigate to protect its interest' was designed to extract a settlement at a time when MSI was financially unable to enforce its rights by litigation: PJ [242]-[247];

(t)    Similarly, MSI's withdrawal of a claim based on cl 2.2 of the Sale Agreement by way of the amended defence was explicable on the basis that MSI wished to expedite the hearing of the WA Proceeding 'given that it had no funds to do anything else', and such conduct did not evidence inappropriate tactics: PJ [253]. Nor did it attract the principles of Anshun estoppel: PJ [256]-[268]; and

(u)    Other miscellaneous allegations of abuse of process were not made out, including: the alleged narrowing of issues before Hill J by revocation of leave to issue proceedings out of the jurisdiction; the bringing of the Federal Court Proceeding in circumstances where the joinder of the Receivers was 'inevitable'; and other specific claims of unjustifiable oppression based on re-litigating the events of the relevant three week period in 2017 when the Sale Agreement was negotiated and terminated: PJ [269]-[285].

156    The primary judge concluded that whilst MSI's proceedings in this Court raise some factual matters and issues that arose in the WA Proceeding, none of the circumstances warrant preventing MSI from now agitating its claims in the Federal Court Proceeding.

Leave to appeal

157    There should be leave to appeal. Both the refusal of a stay and the grant of a stay have serious consequences for a party. Whilst the submissions (and grounds) refer at times to Anshun and issue estoppel, there is no doubt that the central question for determination is whether the Federal Court Proceeding is an abuse of process. There can be only one correct answer to that question. The grounds of appeal indicate sufficient doubt about the decision of the primary judge which together with the serious consequences for either party of the outcome justify the grant of leave.

Categories of grounds of appeal

158    Atlantic Nickel and the Receivers cumulatively raise 11 grounds of appeal. It is convenient to group them into six categories that reflect common themes. Atlantic Nickel addressed the grounds together in its submissions.

1 – Public interest not properly considered (Atlantic Nickel ground 1)

159    Atlantic Nickel allege that the primary judge erred by failing to find that the public interest in the timely and efficient conduct of civil litigation was such that, having regard to the competing public and private interests, the conduct of MSI was an abuse of process in the sense explained in UBS v Tyne.

2 – Likely that Receivers would be joined in Federal Court Proceeding (Atlantic Nickel ground 2, Receivers ground 2)

160    The appellants allege the primary judge erred in failing to find that the commencement or continuation of the Federal Court Proceeding was an abuse of process in circumstances where it was likely or foreseeable that the Receivers would be joined in that proceeding, or the proceeding became an abuse when the Receivers were in fact joined.

161    They allege the primary judge erred in failing to find that the circumstances, having regard to the position of the Receivers, constituted inappropriate tactical manoeuvring.

3 – Limitations on litigation funding and impecuniosity insufficient basis to excuse finding of abuse (Atlantic Nickel grounds 1, 3 and 4, Receivers ground 1)

162    The appellants allege that the primary judge erred in law and in fact in holding that the financial inability of MSI to pursue in the WA Proceeding the claims now pursued in the Federal Court Proceeding provided an explanation or defence such that no abuse of process arose. Atlantic Nickel also allege the primary judge erred in finding both that the Receivers were aware of MSI's lack of funding and that any knowledge on the part of the Receivers in that regard was relevant.

4 – Risk or likelihood of conflict in findings (Atlantic Nickel ground 7, Receivers ground 3)

163    It is alleged that the primary judge erred in finding that no abuse of process arose out of potential inconsistencies, in circumstances where his Honour should have found that the commencement of the Federal Court Proceeding created a risk or likelihood of inconsistent findings as to substantive issues of fact by the two courts.

5 – No proper disclosure of intention to pursue litigation (Receivers ground 2, Atlantic Nickel grounds 5, 6)

164    Atlantic Nickel alleges that the primary judge erred in finding that a reference by senior counsel at a strategic conference to the WA Proceeding resolving questions of 'liability' was a shorthand reference to resolving the limited question of the validity of the termination notice, when, correctly understood, the statement was to the effect that the WA Proceeding would likely resolve all questions of any liability of the Receivers and Atlantic Nickel to MSI. Atlantic Nickel contends that the primary judge ought to have found, by what was said at the strategic conference and by MSI later withdrawing its defence based on cl 2.2 of the Sale Agreement, that MSI communicated an intention that it did not intend to bring further claims against the Receivers or Atlantic Nickel based upon such breach.

165    The Receivers refer to the tactical manoeuvring of MSI in this regard, and the forensic decision to withdraw the cl 2.2 defence.

6 – Non-compliance with cl 2.2 barred by Anshun estoppel (Receivers ground 4)

166    The Receivers allege that the primary judge erred in law and in fact in finding that MSI's claim of non-compliance with cl 2.2 in the Federal Court Proceeding was barred by Anshun estoppel, when his Honour should have found that it was so closely connected with the WA Proceeding as to have made it unreasonable not to have raised it in that proceeding.

Principles

167    The leading decision on abuse of process is UBS v Tyne. The plurality (Kiefel CJ, Bell and Keane JJ) stated at [1] that either of two conditions enlivens the court's power to permanently stay proceedings as an abuse of process, namely 'where the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute'.

168    Whether conduct rises to the level of an abuse of process is a determination that requires consideration of all the circumstances. It involves a merits-based judgement, taking account of public and private interests, and it is not possible to formulate hard and fast rules to determine whether on particular facts abuse is to be found: Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 at 31; and UBS v Tyne at [7].

169    This determination of the circumstances includes taking account of the procedural law of this Court: UBS v Tyne at [34]. In particular, s 37M of the Federal Court Act, read with s 37N, requires the parties to a civil dispute to conduct a proceeding in a manner consistent with the overarching purpose of the Court's civil practice and procedure provisions, which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. The overarching purpose has various objectives including the efficient use of the judicial and administrative resources available for the purposes of the Court, the efficient disposal of the Court's overall caseload and the disposal of all proceedings in a timely manner: UBS v Tyne at [34].

170    The timely, cost-effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute: UBS v Tyne at [38].

171    Although a party has a right to bring proceedings, in doing so choices are made as to what claims are made and how they are framed: UBS v Tyne at [38], citing Aon at [112].

172    In some circumstances the bringing of a claim which should have been litigated in an earlier proceeding will be an abuse of process, even if no estoppel would be made out: UBS v Tyne at [43].

173    Vexation or oppression may be seen by requiring a party to deal again with claims that should have been resolved in other proceedings. Oppression is found not only in delay and increased costs. 'At its core is the vexation of being required to deal again with claims that should have been resolved in the [earlier] proceedings': UBS v Tyne at [58].

174    Whether claims 'should' have been brought is not to be determined solely by reference to the interests of the parties to the action – there is a public interest in the timely and efficient administration of civil justice: UBS v Tyne at [70] (Gageler J).

175    The staged conduct of litigation must be viewed carefully. As the plurality in UBS v Tyne said at [59]:

For the Federal Court to lend its procedures to the staged conduct of what was factually the one dispute prosecuted by related parties under common control with the attendant duplication of court resources, delay, expense and vexation, was likely to give rise to the perception that the administration of justice was inefficient, careless of costs and profligate in its application of public monies.

176    An abuse of process may be seen even where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to the earlier proceeding, nor the privy of such a party: UBS v Tyne at [43] (plurality), [63] (Gageler J), citing Tomlinson at [26]; and Robinson at [149].

177    The courts should not be expected to indulge parties who engage in tactical manoeuvring that impedes the just, quick and efficient resolution of litigation: UBS v Tyne at [45]. To do so would be to ignore the progress in the conduct of modern litigation brought about by Aon and Tomlinson: UBS v Tyne at [45].

178    We also note what was said in Stuart v Goldberg Linde (a firm) [2008] 1 WLR 823, although in the context of the Civil Procedure Rules 1998 (UK). The claimant had commenced a second proceeding in respect of the same transaction for which he had already recovered damages. Ultimately, the Court of Appeal was not persuaded that an abuse of process had occurred on the facts. However, in the course of delivering judgment, Sir Anthony Clarke MR said (at [96]):

For my part, I do not think that parties should keep future claims secret merely because a second claim might involve other issues. The proper course is for parties to put their cards on the table so that no one is taken by surprise and the appropriate course in case management terms can be considered by the judge. In particular parties should not keep quiet in the hope of improving their position in respect of a claim arising out of similar facts or evidence in the future. Nor should they do so simply because a second claim may involve other complex issues. On the contrary they should come clean so that the court can decide whether one or more trials is required and when. The time for such a decision to be taken is before there is a trial of any of the issues. In this way the underlying approach of the Civil Procedure Rules, namely that of co-operation between the parties, robust case management and disposing of cases, including particular issues, justly can be forwarded and not frustrated.

179    In Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty Ltd [2008] VSC 405 Beach J endorsed the 'force of much that is said' by Sir Anthony Clarke MR (at [61]).

180    The reference to 'coming clean' for the purpose of case management echoes the approach to civil litigation endorsed by the Court of Appeal in Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [160]-[163] (Allsop P, Beazley and Campbell JJA), which emphasises the need for clarity, precision, the illumination of issues and openness in the conduct of litigation and in all aspects of engagement in the court's processes, and the responsibility of parties and their legal representatives to assist the court in this regard.

Analysis of particular matters relevant to the appeal

What was the position as to litigation funding?

181    From at least 19 December 2017 to May 2019 MSI sought litigation funding relating to the proceedings the subject of the Draft Writ Proceeding. The alleged breach of the cl 2.2 reasonable endeavours obligation formed part of that threatened proceeding, as Vaughan J observed.

182    The fact that the Receivers had raised the prospect of security for costs is unsurprising, in light of MSI being a corporate entity with an apparent absence of assets within Australia.

183    It is unsurprising that after such a period of time, with proceedings still threatened but the writ unserved, on 8 May 2019 the Receivers brought matters to a head by issuing proceedings. After all, the Receivers no doubt had obligations to the secured creditors and others, and they were not in the position of a litigant who might otherwise sit back and wait for events to unfold. Nor could they readily take steps to bring the receivership to an end with threats of litigation persisting.

184    It is also apparent from the Burford letter that, by at least 1 June 2019, MSI had considered and sought funding of staged litigation, seeking funding for the WA Proceeding 'and then the prosecution of a potential subsequent claim'.

185    As the 12 June 2019 Balance REV letter indicates, MSI secured funding for stage 1 (the WA Proceeding) with Balance REV securing an option for funding of stage 2, being any further proceedings against the Receivers, Sellers or any other party, 'including any claim asserted in the WA Proceeding'.

186    When MSI filed its defence, it expressly invoked each of cl 2.5(a), cl 2.2 and cl 2.6. It was able to assert those matters as defendant without risk of a security for costs application. Nor did the funding agreement constrain the kinds of defences it could bring.

187    MSI's further communications with Balance REV in December 2019 about funding a counterclaim in the WA Proceeding revealed that Balance REV had no appetite to do so, and it considered there was a good chance MSI's claims would be resolved in the WA Proceeding. The communications, objectively viewed, indicate that cost, delay and utility were all relevant to the decision not to proceed with a counterclaim. It can be accepted that costs and the inability to secure funding for a counterclaim were significant factors in the decision.

188    From at least April 2021, after the trial but before Hill J's judgment, MSI sought stage 2 funding from litigation funders. Balance REV declined. A brief for funding from Omni Bridgeway was sent in November 2021 and funding offered in March 2022.

189    These communications clearly reveal that MSI contemplated staged litigation from at least June 2019 and raised it with potential funders. Decisions about MSI's approach to the litigation took into account the position of litigation funders, as the Balance REV counterclaim emails objectively indicate.

190    The effect of litigation funding on when and what parts of claims might be pursued should not be minimised. So much is revealed by the 2-stage approach referred to by Mr Russell with prospective litigation funders. It was (one) mechanism by which funding for the matters the subject of the Draft Writ Proceeding might be obtained but in a staged manner. This was no doubt a course calculated to assist MSI. It also facilitated the litigation funders in managing their own risk. Viewed alone, such forensic decisions were open to MSI. However, in the context of court proceedings, such decisions cannot be viewed alone, as we will turn to below.

What was conveyed at the strategic conference?

191    By the date of the strategic conference, the Balance REV funding was in place. MSI had indicated it would not file a counterclaim, but had raised a number of allegations of wrongdoing primarily against the Receivers in its defence.

192    Because some claims had been foreshadowed by MSI against the Receivers (and others) but were not brought into the WA Proceeding by its defence, Clayton Utz had transparently raised in its position paper the issue of potential future litigation, the risk of being joined to such litigation and the practical utility of the proceeding before Hill J being diminished. MSI did not engage with these matters in its position paper.

193    Her Honour was astute to the risks that were foreshadowed by the nature and scope of the defence as it then stood. Her Honour foreshadowed the risk for the Receivers of being joined to further proceedings. Her Honour raised the prospect of splitting the issues of liability and damage but with all issues before the Court at the time of any application. Her Honour raised the potential for other intended proceedings being commenced and listed together.

194    In this context, the dialogue with the Court included important statements by experienced senior counsel for MSI to the effect that it wished to proceed on the matters then before the Court, because such a course would determine liability and quickly, including (if the termination were valid) claims of inducement to breach the Sale Agreement. Extracts are highlighted at [86] above.

195    Viewed objectively, it was senior counsel's submission that if her Honour were to find that the termination of the Sale Agreement had been valid, then everything else would fall away, and it would be the end of MSI's ability to claim relief and the Court would not need to deal with other parties or other complexities. Relief would still be on the table if the termination was determined to be invalid. Mr Russell's evidence referred to at [89] above is consistent with this.

196    To have utility in resolving liability, both the Receivers' and Sellers' cl 2.2 reasonable endeavours obligation (if relied upon) and the cl 2.5 finance condition precedent terms had to be addressed. There was little point in the Court dealing with only one or other of those issues that affected the entitlement to issue the termination notice, if both issues remained live.

197    At the time of the strategic conference, MSI advanced both. It invoked each of cl 2.5(a), cl 2.2 and cl 2.6 in its defence. Senior counsel's submissions as to liability and utility were made in this context.

198    As at December 2019 each of cl 2.5(a), cl 2.2 and cl 2.6 remained live in the proceeding and were referred to by her Honour in the Letter of Request decision (see [93] above).

199    However, in February 2020 the cl 2.2 defence was deleted from MSI's defence.

200    If it was deleted such that MSI would no longer seek to rely upon it, then the WA Proceeding had utility and the task for the Court was reduced. Whether the termination notice validly terminated the Sale Agreement would be determined by resolving the cl 2.5(a) timing issue.

201    This timing issue was resolved in both Mirabela Trial and Mirabela Appeal. Although these decisions address more than that single issue, it is the timing issue that is central.

202    If, however, despite deleting it, MSI is now permitted to resuscitate the substance of the cl 2.2 defence and pursue it in separate proceedings (even if indirectly) and argue that the termination of the Sale Agreement was invalid, then MSI invites an inconsistent finding on a pivotal point. A real question would arise as to the utility and value of the time, effort and court resources expended in both Mirabela Trial and Mirabela Appeal.

What was the reason given for the withdrawal of the cl 2.2 defence?

203    The evidence indicates that lack of funding was a significant reason why MSI decided not to issue a counterclaim in the WA Proceeding. However, the position in relation to its decision to withdraw the cl 2.2 defence is different. The evidence emphasised that the decision to withdraw it was to avoid delay (acknowledged by the primary judge at [251]).

204    We have set out Mr Russell's evidence about the reason for deleting the cl 2.2 defence, and his evidence that it was to reduce delay in the resolution of the WA Proceeding: this was the 'sole reason'. We have also referred to counsel's advice that it made 'strategic sense' to do so. We also note in this regard that MSI had funding in place at the time the cl 2.2 defence was withdrawn.

205    However, the primary judge said at [156] that 'to a degree' MSI's inability to prosecute all that it wished to due to a lack of funding was emphasised by its withdrawal of the cl 2.2 defence, and that 'the evidence firmly established' that it withdrew that defence as a consequence in part of the costs associated with defending an appeal from Hill J's Letter of Request decision.

206    It can be accepted that costs and delay are to some extent inter-related. However, Mr Russell's evidence was very clear that the cl 2.2 defence was withdrawn to avoid delay.

207    MSI submitted that the Receivers and Atlantic Nickel are bound by the primary judge's finding (at [158]) that MSI would have caused claims to be advanced as a counterclaim had funding been available. That is a different point. The context of that finding is the counterclaim, and not the subsequent decision to withdraw the cl 2.2 defence.

208    MSI also submitted that there was a procedural fairness issue in permitting Atlantic Nickel to depart from particular findings of the primary judge when (in its submission) they were not challenged by the appeal grounds. We have carefully considered this submission, but do not accept it. This is a rehearing, but in any event it was apparent from the grounds of appeal (and in particular from Atlantic Nickel's written reply submissions at [5]-[6]) that the primary judge's conclusions as to funding or delay as reasons for amending the defence were contested.

209    Accepting Mr Russell's evidence about delay, there is another delay that must be considered. The effect of purporting to reduce the risk of delay for the purpose of resolving the WA Proceeding must be measured against the consequence that (on its case) having removed the cl 2.2 defence, the validity of the termination would not be resolved. This consequence was known to MSI. Even if the Receivers succeeded in the WA Proceeding on the cl 2.5 timing issue, MSI anticipated a second stage of proceedings which inevitably kept the cl 2.2 issue alive. Resolution of other issues affecting the validity of the termination would simply be deferred and delayed, not resolved.

Did MSI signal to the Receivers the prospect of future litigation and its content?

210    Prior to the strategic conference the Receivers tried on a number of occasions to seek confirmation from MSI about the scope of litigation it had threatened or intended to pursue going forward. Clayton Utz raised this in its letter to Russells of 15 October 2019. It foreshadowed an estoppel claim if MSI sought to raise matters in a later proceeding which should have been raised in the WA Proceeding. The response from Russells was that it would not be filing a counterclaim but it declined to engage with the propositions raised by Clayton Utz.

211    Clayton Utz raised this issue again in the position paper for the strategic conference. MSI's position paper did not engage with the matters raised.

212    Although the primary judge considered that MSI had made its position about further proceedings 'pellucid' at the strategic conference, senior counsel for MSI at that strategic conference submitted that the liability relating to the termination notice would be resolved by the WA Proceeding, and as events transpired (with the deletion of the cl 2.2 defence and the commencement of the Federal Court Proceeding), that is not what happened.

213    Objectively, the correspondence subsequent to the strategic conference referred to indicates that the Receivers did not consider MSI's position was clear.

214    After the strategic conference, Russells indicated in its letter to Clayton Utz of 30 November 2019 that the WA Proceeding would end the current litigation 'between the current parties'.

215    Clayton Utz continued to seek confirmation of MSI's position. In the letter to Russells of 3 December 2019 Clayton Utz expressly asked whether, if the Receivers succeeded in the WA Proceeding, MSI reserved the ability to sue other parties in relation to the Sale Agreement. As noted above, Russells responded on 5 December 2019 but did not answer the question.

216    The letter of 17 December 2019 from Russells to Clayton Utz at first blush might be thought to provide some indication about limiting future litigation. But read carefully, acknowledging (as Hill J did) the likelihood of the Receivers being joined to any proceeding about the Sale Agreement, the letter is not transparent and is not forthcoming. It speaks only of refraining from bringing proceedings against the Receivers or bringing proceedings 'in the form of the draft statement of claim'. Being given 21 days' notice if a different form of claim might issue is hardly giving an indication of intention. It discloses nothing more than a risk that MSI might proceed against other parties in a way that might affect the Receivers so that they may need to prepare an injunction or stay application at some point. Nor does MSI anticipate by the letter that it may abandon the cl 2.2 defence, but continue to rely on it if it brought any action in the future.

217    Having regard to the documentary evidence, the Receivers were concerned about the risk of separate proceedings that might involve them and sought to have all issues introduced into the WA Proceeding by counterclaim or concurrent separate proceedings. They knew what was said by MSI at the strategic conference before the trial judge about the WA Proceeding resolving liability. They were entitled to take that into account. Even so, it is objectively apparent that they were concerned about the potential for further litigation which might raise matters claimed in the Draft Writ Proceeding to be brought directly or indirectly against them, and made those concerns known to MSI, but MSI did not illuminate the position for them. Atlantic Nickel submitted that MSI was not frank or transparent in this regard.

218    The cl 2.2 defence was withdrawn on 12 February 2020. Despite its withdrawal, nothing was said by Russells to Clayton Utz about any intention to preserve the cl 2.2 claims relating to the Receivers and Sellers and include them in subsequent litigation.

219    We do not consider that before or after it deleted its cl 2.2 defence, MSI signalled to the Receivers the prospect of further litigation against other parties in which it would reagitate claims about the conduct of the Receivers and Sellers, including both the cl 2.2 and cl 2.5 claims. Those were claims that were likely to result in the Receivers' joinder. There was no such intimation (a point made by Gageler J about Mr Tyne's conduct in UBS v Tyne at [76]). It was incumbent on MSI to raise such matters and seek case management directions: Robinson at [118]. There was a lack of transparency in this regard. Such conduct also informs assessment of the Receivers' position that the cl 2.2 defence should have been included in the hearing of the WA Proceeding, the allegation of tactical manoeuvring and MSI's assertion that the Receivers should have undertaken self-help measures (discussed at [268] below).

220    We also note that despite what was said at the strategic conference about the significance of the outcome in the WA Proceeding to questions of liability, MSI did not await an outcome from the trial judge before instituting the Federal Court Proceeding. No evidence as to why this course was taken was identified.

Abuse of process

221    We have reached a different conclusion to that of the primary judge on whether the Federal Court Proceeding is an abuse of process. We have concluded that it is, for the following reasons.

Overlap and inconsistent findings

222    We accept that the subject matter of the WA Proceeding and the Federal Court Proceeding do not overlap completely as in UBS v Tyne. However, there does not need to be a complete overlap in order for there to be an abuse of process: Lantrak at [327]. Risks of inconsistency and other matters such as the vexation of a litigant may well arise even with incomplete overlap, and in this case they do.

223    The facts that underpin both proceedings are neither separated in time nor substance: Lantrak at [315]. They concern a confined three-week period preceding the issue of the termination notice.

224    The overlap based on the respective pleadings has been summarised at [129]-[146] above. What is apparent from that exercise is that the content of significant parts of the claims and impugned conduct overlap, insofar as they relate to the premature termination of the Sale Agreement (cl 2.5); allegations of breaches of the reasonable endeavours clause by the Receivers and Sellers (cl 2.2); allegations of breaches of the 'no solicitation' clause (cl 2.6(c)); allegations against Atlantic Nickel of inducing breaches of contract by the Sellers and Receivers; and allegations of unconscionable and inequitable conduct that relate to the implementation of the Sale Agreement.

225    Particularly in relation to the causes of action that plead and rely on the alleged premature termination of the Sale Agreement, the Court of Appeal declaration has since crystallised the very real potential for an inconsistent finding. Although the primary judge was alive to the potential that an appeal might be upheld, the declaration has since been made.

226    The parties made a number of submissions about the effect of the Court of Appeal's declaration on this appeal.

227    Atlantic Nickel and the Receivers submitted that MSI seeks to relitigate an important point as to whether the Sale Agreement was validly terminated by the termination notice, a point on which it has failed. The Receivers contend that so much is apparent from (at least) MSI's reliance in the Federal Court Proceeding on the alleged breach by the Receivers and Sellers of cl 2.5(a) of the Sale Agreement by premature termination; their reliance on the alleged breach by the Receivers and Sellers by executing the Appian sale agreement; the alleged adoption by Atlantic Nickel of the conduct of the Receivers' and Sellers' breach and its own repudiation of the contract after receipt of the purported termination notice; the Receivers' and Sellers' alleged contraventions of s 21 of the ACL by purporting to terminate under cl 2.5(a) before any right of termination had arisen (asserting Mr Tucker purported to terminate it by exercise of the Sellers' right of termination); and MSI's claim that it lost the opportunity to complete the Sale Agreement. The Receivers contend that these pleadings and relief are all inconsistent with the Court of Appeal's decision. Notably, the Receivers submitted, MSI pleads in the Federal Court Proceeding that because of the alleged contravening conduct of the Receivers and Atlantic Nickel, it suffered loss and damage, namely the loss of the opportunity to complete the Sale Agreement and become the owner of the relevant assets. The Receivers say that the value of the pleaded loss of opportunity assumes the termination of the Sale Agreement was invalid, contrary to the Court of Appeal's determination.

228    It is to be recalled that MSI seemingly maintained at the strategic conference that if the Sale Agreement had been validly terminated, then it has no further claim based on inducing a breach of contract. It pursues such a claim in the Federal Court Proceeding. MSI approaches the Court of Appeal decision by distinguishing conduct prior to the issue of the termination notice and the actual issue of the notice. It contends that it may properly pursue claims against Atlantic Nickel that are based on conduct of the Receivers and Sellers that occurred prior to the termination of the Sale Agreement, and that damages claims for the breaches caused by such conduct are not dependent upon whether or not the Sale Agreement was validly terminated. It also focuses on the different parties to the respective proceedings, relying on the fact it did not sue Atlantic Nickel in the WA Proceeding; it did not rely in the WA Proceeding on a claim the Receivers or Sellers were precluded from terminating the Sale Agreement because of their breaches of cl 2.2 (after amending its claim); and it does not (directly) pursue the Receivers or the Sellers in the Federal Court Proceeding. It contends that the Court of Appeal decision does not affect its claims or this appeal.

229    We consider the risk of a number of inconsistent findings arises and such risk has been heightened having regard to the Court of Appeal's declaration. Whether an inconsistency may arise in each circumstance raised by the Receivers is not decisive: there is clearly a real risk of inconsistent findings that tends to bring the administration of justice into disrepute. MSI in its submissions fails to fairly acknowledge that the allegations involving the Receivers are not limited to the circumstances of the timing of the issue of the termination notice, but extend the factual inquiry into the Receivers' conduct over the relevant three-week period.

230    However, MSI also submitted in its supplementary submissions following the Court of Appeal decision that:

The appropriate course for MSI to address inconsistencies between its case in the Federal Court and the WASCA Decision is to amend its pleadings in response to the Receivers' contentions … to bring its pleading in line with the WASCA Decision with respect to termination of the ASA. If, contrary to MSI's primary contention, the Full Court were of the view that the Federal Court Proceedings should not involve any issues as to the Receivers' compliance with cl 2.2, then the appropriate course is for MSI to amend the [amended statement of claim] in respect of allegations of breach of cl 2.2 by the Receivers. MSI's claims can otherwise continue, unaffected by any risk of conflicting findings with the WASCA Decision.

231    However, if MSI wished to amend its pleading after the Court of Appeal decision and ask this Court to take such amendments into account on the appeal, it could and should have pursued that course. It might be that MSI is suggesting that any stay should be in part, rather than of the whole proceeding, or pending amendments. However, it has not proffered any amended statement of claim, and does not address the cross-claim against the Receivers. It does not set out precisely how its pleading might be amended in a manner that would avoid inconsistency or other vexing of the Receivers. It does not explain how a cross-claim could be avoided.

232    There are other risks of inconsistent findings that inform whether the Federal Court Proceeding is an abuse of process, but they can be dealt with briefly, as the declaration has eclipsed them in terms of degree of risk.

233    Such other risks arise because although the cl 2.2 defence was withdrawn, allegations about wrongdoing on the part of the Sellers and Receivers during the relevant window remained part of the WA Proceeding. They included allegations of false and misleading statements, unconscionable and inequitable conduct.

234    In particular, Atlantic Nickel referred to issues 5, 6 and 7 in the WA Proceeding, addressed in Mirabela Trial at [622]-[643]. These issues were raised as defences before Hill J to the validity of the termination, and all are re-agitated by the statement of claim in the Federal Court Proceeding. They are:

(a)    that the Receivers and Sellers made false and misleading statements as to whether they intended to terminate and were in discussions with other parties (issue 5);

(b)    that the alleged termination was founded upon certain unconscionable or inequitable conduct by the Receivers and Sellers asserting a right to terminate under cl 2.5 which was false (issue 6); and

(c)    that the Receivers were in breach of cl 2.6(c) by dealing with the Appian purchasers (issue 7).

235    MSI failed before Hill J on each of these defences. Her Honour's findings were not determinative of the outcome. That does not mean they are to be dismissed as inconsequential. A trial judge will generally give careful consideration to whether they should make findings necessary for the disposition of the remaining issues in a proceeding in case they are subsequently held to be wrong and their resolution becomes necessary on appeal. This increases the judicial fact-finding and time required for the primary judgment, but tends to minimise the risk of remitters or re-hearings. See generally the obligations on a primary judge as summarised by Emerton JA in Braham v ACN 101 482 580 Pty Ltd [2018] VSC 575 at [268]-[272].

236    As to issue 5 (Mirabela Trial at [622]-[632]), Hill J was required to consider allegations including when and whether Mr Tucker made statements about whether the Receivers were in discussions with other parties; whether and when Mr Tucker made misleading statements as to his intention to terminate the Sale Agreement on any particular date or at all; the content of statements about whether there were other offers on the table and whether they were misleading; the timing and content of statements about communications with Appian. Her Honour was obliged to make findings of fact in considering these claims. Her finding was that Mr Tucker did not make misleading or deceptive statements as alleged. Similar allegations are made about Mr Tucker's conduct in the amended statement of claim in the Federal Court Proceeding (e.g., [88], [144 I and J], [145]).

237    As to issue 6 (Mirabela Trial at [633]-[634]), her Honour noted the overlap with matters relied upon to support a claim that Mr Tucker engaged in false and misleading conduct and determined that for similar reasons the conduct was not unconscionable or inequitable. Similar allegations of unconscionable conduct are made about the conduct of the Receivers and Sellers in the amended statement of claim in the Federal Court Proceeding (e.g., [98], [107], [108]).

238    As to issue 7 (Mirabela Trial at [635]-[643]), Hill J noted the issue was the subject of argument and submissions. Her Honour said as to cl 2.2:

[637]    It is clear from the text of the clause that in order to terminate the Agreement, three things were required: first, a notice in writing to the other parties to the Agreement; second, compliance with the obligations under cl 2.2 of the Agreement; and third, one of the matters in (a), (b) or (c) applying. The clause did not require compliance with any other clause of the Agreement, including cl 2.6.

[638]    For these reasons, even if the Receivers were in breach of cl 2.6(c), it did not prevent them from exercising any right to terminate the Agreement.

239    In considering whether the Receivers and Sellers had breached their obligations under cl 2.6, her Honour was obliged to consider matters such as the extent to which the Sale Agreement permitted communications with Appian, whether communications between the Receivers and Appian evidenced the Receivers and Sellers 'entreating' or 'urging' Appian to make an offer, and whether documents that were provided to Appian relevantly constituted information within the meaning of the Sale Agreement. Her Honour found that there was no breach by the Receivers and Sellers of the cl 2.6 obligations. Similar allegations are made about breaches of cl 2.6 in the amended statement of claim in the Federal Court Proceeding (e.g., [109], [136]).

240    The primary judge considered that findings on such issues were obiter and were insufficient to raise an issue estoppel. However, as the primary judge acknowledged, the fact that findings on such issues have been made is not irrelevant to the question of oppression.

241    Abuse of process is inherently broader and more flexible than estoppel: Tomlinson at [25]. We also note the observation of Jackman J in Lantrak that the risk of inconsistent findings is not assessed solely by reference to the substantive issues of fact but may extend to findings on matters of credibility of witnesses: at [327].

242    Court resources have already been utilised addressing the identified issues. More importantly, the Receivers were obliged to deal with each of those issues in the WA Proceeding. Because they have been joined and because of the way those matters are relied upon again in the Federal Court Proceeding, the Receivers must deal with them again. They are therefore vexed, not just in relation to the termination notice issue the subject of the declaration, but more broadly in relation to matters they have already addressed in the WA Proceeding, and as to which a Court has indicated they would have succeeded.

243    The inevitable consequence for the Receivers in the circumstances of this case is oppressive. To address the matters that have been addressed or, in the case of cl 2.2, should have been addressed in the WA Proceeding is to vex them, as that expression is understood in this context.

Clause 2.2 defence should have been maintained in the WA Proceeding

244    We consider that the cl 2.2 defence (or any counterclaim that relied upon it) should have been maintained in the WA Proceeding, so that all elements that informed the validity of the termination notice (including allegations against the Receivers and Sellers) were dealt with: UBS v Tyne at [43]. Clause 2.2 is a major plank of MSI's claim in the Federal Court Proceeding about the invalidity or nature of the 'purported' termination notice. The allegation that there was a breach of contract by the 'purported' termination by the Receivers and Sellers relies on both the cl 2.5(a) finance condition and the alleged non-compliance with the Receivers' and Sellers' obligations under cl 2.2. And Mr Russell conceded the centrality of cl 2.2 to the Federal Court Proceeding (see [110] above).

245    The asserted reason for its deletion does not counter the effect of the decision on other parties and court resources, and reveals evident problems. A short-term avoidance of delay may have been a sound aspiration, but as became apparent by the proceeding in this Court, it was not abandoning but only deferring consideration and resolution of the cl 2.2 issue. Contrary to the primary judge's finding (at [156]), as a result of the withdrawal of the cl 2.2 defence, the 'central issue in dispute' (whether the termination was valid) was not determined because MSI continued to assert in separate proceedings that the Receivers and Sellers breached the cl 2.2 reasonable endeavours obligation.

246    It was particularly incumbent on MSI to clarify its position in light of what was said by its senior counsel at the strategic conference. Given what had been said about the trial determining liability, the withdrawal of the cl 2.2 defence conveyed the impression that MSI abandoned reliance on (at least) matters relating to the Receivers' and Sellers' cl 2.2 obligations. If that were not the case, even if MSI intended to rely on it only in separate litigation against other parties, MSI should have disclosed that fact because of the obvious risk to the Receivers of a cross-claim. Whilst parties may generally make decisions without disclosing their litigation strategy, parties (and their lawyers) remain subject to the statutory duties referred to in UBS v Tyne, and must strive to meet the expectations of disclosure and frankness required in the modern litigation culture.

247    It follows that we respectfully do not agree with the primary judge's assessment of what was conveyed at the strategic conference, and regardless, we emphasise the fact that the cl 2.2 defence was deleted after the strategic conference. This step undermined much of what was said by senior counsel at the strategic conference about resolving liability against the Receivers.

248    Deferring the resolution of the cl 2.2 issues and maintaining them in the Federal Court Proceeding gives rise to questions as to the utility of the WA Proceeding. A decision that parts of a claim might be excised but reagitated at a different time is a case management decision to be made by a court, taking into account the allocation of the resources of the court, not a decision to be made by a party (Robinson at [117]-[118]; UBS v Tyne at [80]) or because of the interests of a litigation funder.

Funding

249    MSI, in resisting any suggestion of abuse of process, submitted in effect that it was entitled to proceed in a staged manner having regard to its financial position.

250    We have referred to the statement of Lord Bingham in Johnson v Gore Wood about the broad merits-based approach which takes account of public and private interests above. To cite the passage fully (at 31, emphasis added):

It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim.

251    The primary judge found that MSI's 'then financial inability' to litigate its claims explained its conduct, such that it did not engage in inappropriate tactical manoeuvring: PJ at [247]-[248].

252    A number of matters are relevant for context. MSI attempted to obtain litigation funding for the Draft Writ Proceeding, apparently without success. MSI was able to retain lawyers and bring the Draft Writ Proceeding. MSI was able to secure litigation funding for the defence of the WA Proceeding (initially capped at $412,000), and had such funding in place when it filed the defence asserting the cl 2.2, cl 2.5 and cl 2.6 claims. As a defendant, no risk as to providing security for costs in order to pursue those defences arose. The evidence does not suggest that MSI declined to file a counterclaim solely for financial reasons, although it was no doubt an important aspect relevant to the decision-making. The emails of 10 December 2019 and 11 December 2019 (at [92] above), which post-date Russells informing Clayton Utz that MSI did not propose to file a counterclaim, are relevant in this regard.

253    There is no evidence that the Receivers knew of MSI's financial position once Balance REV was on board as funder; the notification of funding filed in the Supreme Court provides no detail of the terms of funding.

254    Even if one accepts that MSI made forensic decisions based on its then financial capacity or access to litigation funding, it does not follow that there is no abuse of process. Forensically defensible decisions from the perspective of a litigant do not thereby prevail over the public interest. Instead, the correct approach, in accordance with UBS v Tyne, is to have regard to the proper balance of private and public interests.

255    Accepting that a litigant's financial circumstances are not irrelevant, it ought not be the case that a litigant directs the case management or progress of a proceeding having regard to their financial position. After all, 'it is commonplace for litigants to have difficulties in affording the cost of litigation but lack of means cannot stand as an excuse for abuse of process': Manson v Vooght [1999] BPIR 376 at 389, cited in Johnson v Gore Wood at 29.

256    Similarly, it ought not be the case that a litigation funder in effect directs (by proxy) the case management or progress of a proceeding based on its position at any particular time (having regard to risk appetite, strategy and so on) as to whether it might fund a claim, whether at all, in part, or later. There is support for this view in Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operation Pty Ltd (In liq) [2009] NSWCA 104 (Ipp JA, Tobias and McColl JJ agreeing) at [81]-[82].

257    The evidence in this case provides an example of the different interests and strategies that a litigation funder may bring to bear. Balance REV in fact declined to endorse the issue of the Federal Court Proceeding when asked, suggesting that the better course was to await the outcome of the WA Proceeding ([125] above).

258    The cultural shift in the conduct of civil litigation to which Gordon J referred in UBS v Tyne (at [125]) obliges the courts and the wider profession to take into account issues such as resourcing, costs and delay. Having regard to both private and public interests, such obligations are unlikely to be met if limited court resources are allocated to facilitate a second proceeding because a party has challenging financial circumstances and for that reason seeks to stage or fragment proceedings over time. The interests of other litigants must be considered. There may be circumstances where such a course can be supported but they would be the exception.

259    In UBS v Tyne, Mr Tyne as trustee commenced proceedings in the Federal Court to pursue claims against UBS where the trust had discontinued claims against UBS before the NSW Supreme Court (UBS v Tyne at [1]-[4]). Mr Tyne perceived forensic benefits in 'holding back' the trust's claims in the Supreme Court having regard to costs and the time-consuming nature of the proceeding. Mr Tyne faced straitened financial circumstances (UBS v Tyne at [105], [154]) but that did not assist him. The plurality found that Mr Tyne's own interests in minimising his forensic burden and costs did not excuse tactical manoeuvring. The plurality observed that there would be duplication of resources, increased costs and delay in resolving disputes. Gageler J stated that Mr Tyne's explanation was not unreasonable gauged solely by the trust's interests. However, having regard to UBS's interests and the public interest in the timely and efficient administration of justice, it was an insufficient explanation for why the trust's claims were held in abeyance rather than pursued in the Supreme Court so that all relevant issues could be determined (UBS v Tyne at [80]). It was not appropriate that Mr Tyne 'take upon himself' such a decision, having regard to private and public interests (UBS v Tyne at [81]).

260    Returning to Johnson v Gore Wood, the circumstances are distinguishable. Mr Johnson's financial predicament was caused by the respondent's negligence. In this case it was not asserted that financial inability to litigate claims was caused by any breach of duty on the part of the Receivers or Atlantic Nickel. And regardless, accepting that financial circumstances may be relevant, they must be considered together with all the circumstances and having regard to other private and public interests, consistent with UBS v Tyne.

261    We do not consider that MSI's position, to the extent it was based on financial circumstances, the absence of litigation funding, the terms of litigation funding or the preferences of litigation funders, properly explained why the cl 2.2 defence was not pursued in the WA Proceeding, at the time that many other contentions that related to the termination of the Sale Agreement and the alleged conduct of the Receivers and Sellers were maintained by MSI's defence (as is apparent from the number and complexity of matters addressed by Hill J).

262    It was not reasonable for such financial matters to direct how the litigation proceeded when the interests of the Receivers and the public were taken into account. The Receivers and Sellers did not acquiesce in any staged approach: PJ [286].

263    The Receivers are left vexed in that they have to deal again with matters they have already addressed in the WA Proceeding and incur the costs and delays in resolution. The outcome of the forensic decisions that may have favoured MSI is that matters that should have been addressed in the WA Proceeding were not. Absent a stay, there will be duplication of resources in that matters that have already received attention in the Supreme Court (and Court of Appeal) will again receive attention in this Court. This outcome is not consistent with the timely and efficient administration of justice. It is not consistent with the overarching purpose of civil practice and procedure set out in s 37M of the Federal Court Act.

264    We reject MSI's contention that Atlantic Nickel's submissions on the appeal were to the effect that 'people who can't afford to should not litigate'. There was no suggestion by Atlantic Nickel that parties should be shut out from access to the court for that reason alone. Rather, its position was that there should not be unilateral forensic decision-making by a party (or funder), based on a financial position that pertains at any particular time, which affects the case management and fair-resolution of a trial, without disclosure to the parties and without seeking appropriate case management directions from the court.

265    Further, the role of litigation funders should not be ignored in this assessment. It is necessary to keep in mind who the real decision makers are and who, apart from the actual litigant, has an interest in the outcome of a proceeding. If the impecuniosity of the actual litigant at the time of the initial proceedings is relevant to whether later proceedings constitute an abuse of process, the positions and decisions of entities who stand behind the litigant and stand to benefit from its success are also potentially relevant.

266    To the extent that limited financial resources caused MSI to narrow its case and refrain from filing a counterclaim in the WA Proceeding, that was the consequence of commercial decisions by its funder (Balance REV), which had a stake in any claim proceeds and an exclusive option to fund further proceedings. There is no suggestion that Balance REV was constrained by a shortage of funds; it was making strategic decisions in its own interests. As matters transpired, Balance REV did not fund MSI in the Federal Court Proceeding and is not therefore directly involved in the proceeding alleged to constitute an abuse. Meanwhile, the current funder (Omni Bridgeway) appears, on the evidence, not to have been one of those approached by MSI in its attempt to fund the WA Proceeding. There is therefore no individual funder who can be said to have orchestrated the holding back of part of MSI’s claim in the WA Proceeding and the advancing of that claim later. However, it is not irrelevant that MSI’s conduct of the WA Proceeding was determined by the commercial decisions of a well-resourced entity (Balance REV) to which it had contractually bound itself. The funding agreement between MSI and Balance REV entitled the latter to both an option to fund further proceedings and a share of any amount recovered in such proceedings even if it did not fund them (cl 3.6(c)). The fact that an entity which stands to benefit from the success of MSI’s claims in the Federal Court Proceeding could have funded the pursuit of those claims in the WA Proceeding, but chose not to, diminishes the force of MSI’s funding difficulties as an explanation for its conduct.

Other matters

'Tactical manoeuvring'

267    We consider there was tactical manoeuvring (as that expression is used in UBS v Tyne at [45]; and Lantrak at [327]), revealed by the statements made at the strategic conference, the refusal to candidly inform the Receivers whether it was intended to pursue other claims raised in the Draft Writ Proceeding outside of the WA Proceeding, the amendment to the defence, the failure to inform the Receivers that despite their deletion the cl 2.2 claims were to be pursued separately, and the failure to disclose that proceedings might be pursued without awaiting the outcome of the trial in the WA Proceeding.

Self-help

268    It is not to the point that the Receivers potentially 'could have done something' in the WA Proceeding, such as seeking negative declarations or, after the cl 2.2 defence withdrawal, seeking orders permitting the amendment to the defence on terms preventing reagitating the matters the subject of the deleted pleading. It is perhaps easy to assert such steps could have been taken with the benefit of hindsight. Given the lack of certainty as to MSI's position, and absent appropriate disclosure or clarification of MSI's intentions, we would not accept that an obligation was imposed on the Receivers to make such an application to the Supreme Court: Lantrak at [323]. As the plurality said in UBS v Tyne at [56]:

An abuse of process is no less an abuse because the party adversely affected might have, by greater diligence in its own interests, prevented the abuse.

Relevance of MSI as a defendant

269    Nor are we persuaded that the fact that MSI was a defendant, rather than a plaintiff, in the WA Proceeding has any particular significance in the circumstances of this case. MSI referred to Henley v Bloom [2010] EWCA Civ 202; [2010] 1 WLR 1770, in which it was said that it may be 'more difficult' to argue an action by a claimant is an abuse where they were 'simply a defendant' in an earlier action involving the same parties (at [33]). That may be so, but it will depend on the particular circumstances and the issues involved, and leaves open for consideration the nature of the role of the parties in the earlier action.

270    It is important to have regard to the substance of the threatened and actual proceedings between the parties. It was MSI that threatened proceedings in which the allegations about the termination of the Sale Agreement and the conduct of the Sellers and Receivers were made. It went so far as to draft a statement of claim and obtain leave to serve the writ. It was only after a period of asking and waiting for the writ to be served that the Receivers instituted the WA Directions Proceeding and ultimately the WA Proceeding. The WA Proceeding was in effect commenced defensively, in an attempt to resolve claims that MSI was threatening but not acting upon.

271    MSI invoked in its defence many of the matters it had pleaded in the draft statement of claim. This was no mere 'bare denial' defence (and nor would that have been appropriate). It was a defence that pleaded positive allegations. MSI was obviously entitled as a defendant to jettison some of those allegations and run a narrower case, but it does not follow that it was entitled to expect that decision to have no consequences for its position in the future. In all of the circumstances, we do not think it avails MSI to rely on its formal status as a defendant in the WA Proceeding to require breach of a different threshold before its conduct might constitute an abuse of process. The facts and circumstances are to be considered as a whole.

Consequence for Receivers of action against Atlantic Nickel

272    MSI submitted that by the Federal Court Proceeding, claims are brought against Atlantic Nickel for the first time, and Atlantic Nickel cannot be vexed. That does not resolve the abuse of process claim insofar as Atlantic Nickel is concerned. The likely consequence of cross-claims for joint or coordinate liability is 'an important consideration' and can constitute abuse of process in that it brings the administration of justice into disrepute: Robinson at [149]-[152].

273    It was highly likely, if not inevitable, having regard to the subject matter of the Federal Court Proceeding, that Atlantic Nickel would join the Receivers. MSI's pleading against Atlantic Nickel has led to the joinder of the Receivers as cross-respondents where their alleged liability for contravening cl 2.2 and cognate obligations must be determined. Indeed, MSI pleads in the Federal Court Proceeding that the chief financial officer of Atlantic Nickel acted under the direction of the Receivers. It is pleaded that Atlantic Nickel allegedly acted at the Receivers' direction in relation to the sale and termination of the Sale Agreement.

274    That a cross-claim has been brought simply confirms what was already readily anticipated. It follows, in our view, that in all the circumstances the Federal Court Proceeding against Atlantic Nickel is an abuse of process.

Anshun estoppel

275    Ground 4 of the Receivers’ notice of appeal raises the question of whether, had MSI brought a further claim directly against it, such claim would be barred by an Anshun estoppel. Relatedly, the question arises as to whether claims that would have been estopped can be brought indirectly against the Receivers in the claim brought by MSI against Atlantic Nickel.

276    The initial question is whether MSI could advance its claim based on cl 2.2 in light of the manner in which it conducted the WA Proceeding: see generally Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; and Tomlinson.

277    In summary, Anshun estoppel arises where the claim was so connected to the subject matter of the first proceeding as to make it unreasonable, in the context of that proceeding, for the claim not to have been raised in it: Anshun at 602; and Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; (2016) 259 CLR 212 at [27].

278    It is a common law right which arises between parties to a proceeding as a consequence of how the proceeding was conducted, so as to affect the scope of future proceedings between them: Tomlinson at [22].

279    The foundation of Anshun estoppel lies in concepts of what constitutes fair behaviour between the parties, rather than institutional considerations concerning the finality of judicial determinations. What is ultimately required is 'a value judgment to be made referable to the proper conduct of modern litigation': Champerslife Pty Ltd vManojlovski [2010] NSWCA 33; 75 NSWLR 245 at [3] (Allsop P).

280    The 'unreasonableness' of having omitted to raise a claim in the first proceeding must flow, substantially if not wholly, from the closeness of its connection with the subject matter of that proceeding: Champerslife at [3].

281    Where 'special circumstances' exist, a party may be permitted to raise an issue in subsequent proceedings despite it being unreasonable for it not to have been raised in earlier proceedings: Henderson v Henderson (1843) 67 ER 313 at 319; and Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242; 146 FCR 10 at [38].

282    The primary judge held MSI was not estopped from raising non-compliance with cl 2.2 in the Federal Court Proceeding for three reasons (at [263]-[268]):

283    First, his Honour said that MSI’s reliance on cl 2.2 in the WA Proceeding was for the purpose of negating the conclusion that the Receivers had acquired a right to terminate the Sale Agreement. In the Federal Proceeding, it is relied on against Atlantic Nickel more broadly to allege that Atlantic Nickel breached the Sale Agreement, or induced the Receivers' and Sellers' breach of the Sale Agreement or engaged in unconscionable conduct.

284    Second, and related to the first, his Honour referred to the fact that Atlantic Nickel was not a party to the WA Proceeding. His Honour concluded that if Atlantic Nickel was joined by way of cross-claim, MSI would have faced an application for security for costs, and the cross-claim would have severely delayed the hearing.

285    Third, his Honour considered that MSI had removed reliance on cl 2.2 so that the WA Proceeding could occur quickly, and without substantial expenditure.

286    The Receivers submitted that the subject matter of the WA Proceeding was whether the termination of the Sale Agreement by the Receivers was valid. The issue of non-compliance with cl 2.2 was closely connected with that subject matter; non-compliance would have disentitled the Receivers from issuing a notice and so affected the validity of the termination, even if the time for termination had been reached. It was necessary to pass through the gateway of cl 2.2 and cl 2.6 in order to terminate.

287    In those circumstances, the Receivers submitted, for MSI to have declined to pursue an issue that could have affected the validity of the termination was plainly unreasonable. It abandoned the cl 2.2 defence for its own forensic reasons and must live with its choices: Lantrak at [327]; and Fairfield Pastoral Holdings as the trustee of the Piney Ridge Trust v Van Niekerk [2025] FCAFC 25 at [54]. It was an issue that 'properly belonged' in the WA Proceeding: Fairfield Pastoral Holdings as the trustee of the Piney Ridge Trust v Van Niekerk [2023] FCA 1185 at [55]. As Mr Russell said in his oral evidence, prior to the amendment, the WA Proceeding had been defended because of non-compliance with cl 2.2, that being 'one of the reasons why the purported termination was invalid'.

288    MSI's conduct did not involve simply holding back a claim, but pleading it by way of a positive defence and then withdrawing it for its own purpose. For the reasons given above at [244]-[248]], we consider it unreasonable that the cl 2.2 defence was not run in the WA Proceeding. Nor are we satisfied that there are special circumstances such that, despite this conclusion, MSI should be permitted to raise the cl 2.2 defence in a claim against the Receivers. In the circumstances in which the cl 2.2 defence was withdrawn, we would have found that a claim brought directly against the Receivers in separate proceedings raising or relying on a breach of the Receivers' and Sellers' cl 2.2 obligations would be precluded by Anshun estoppel.

289    There may be occasions where a party that was not a party to the first proceeding can assert Anshun estoppel: see the discussion in Solak v Registrar of Titles [2011] VSCA 279 at [67]-[71]. However, it is not necessary for Atlantic Nickel to establish that it can separately assert an Anshun estoppel in this case in order to establish abuse of process. As discussed, Robinson supports Atlantic Nickel's submission that MSI ought not be able to indirectly raise the matters previously raised against the Receivers (and withdrawn) by way of a claim against Atlantic Nickel. The circumstances of both the Receivers and Atlantic Nickel may be considered having regard to principles of abuse of process and the position of third parties discussed in Robinson, rather than by regard only to the more limited operation of an Anshun estoppel. However, Anshun does have some relevance: the conclusion that the Receivers could rely on Anshun estoppel as an answer to any direct claim against them, together with the near inevitability that Atlantic Nickel would seek to protect its position by cross-claiming against them, tends to confirm that the Federal Court Proceeding is an abuse of process.

290    Whilst we would have found that an Anshun estoppel would have arisen in any direct claim brought against the Receivers, we prefer to resolve the question insofar as Atlantic Nickel is concerned by reference to abuse of process principles.

Conclusion

291    We have come to the conclusion that the use of the Court's procedures to commence the Federal Court Proceeding against Atlantic Nickel occasions unjustifiable oppression to the Receivers and serves to bring the administration of justice into disrepute, enlivening the power to grant a stay, as those conditions are described in UBS v Tyne at [1]. In relation to Atlantic Nickel's own position, for the reasons given and applying the reasons in Robinson, the use of the Court's procedures to commence the Federal Court Proceeding against Atlantic Nickel serves to bring the administration of justice into disrepute.

292    We have therefore respectfully come to a contrary conclusion to that of the primary judge. This is in no small way because of the subsequent event of the Court of Appeal's declaration together with the fact that MSI pursues findings inconsistent with that declaration. It is also because of the consideration that should be given to the public interest when considering the funding issue; the need for transparency in relation to the cl 2.2 defence withdrawal, being a unilateral tactical forensic decision by MSI which affected the case management of a trial; the view that the cl 2.2 defence should have been addressed in the WA Proceeding having regard to all the circumstances, including the importance of determining the validity of the termination of the Sale Agreement; and the consideration of these matters having regard to s 37M and s 37N of the Federal Court Act.

293    And returning to the somewhat overlapping formal categories, we would uphold the appeal grounds referred to in categories 1, 2, 3 and 4. It is not necessary to formally deal with the remaining categories. We have in any event addressed the scope of what was said at the strategic conference, the effect of the withdrawal of the cl 2.2 defence and the Anshun argument in the context of the other grounds, noting that all the facts and circumstances inform the assessment of abuse of process.

294    It follows that there was error in failing to find that the Federal Court Proceeding was an abuse of process. Leave to appeal is granted, both appeals are allowed, and there should be a stay of the proceeding QUD 355 of 2021. The respondent should pay the applicants' costs of both the applications for leave to appeal and the appeals, although we will afford the parties the opportunity to make submissions in that regard should different costs orders be sought.

295    There will be orders accordingly.

Associate:

Dated:    17 October 2025