Thalanga Copper Mines Pty Ltd v Cromarty Resources Pty Ltd; Cromarty Resources Pty Ltd v Thalanga Copper Mines Pty Ltd (No 2) [2021] NSWSC 1017

Thalanga Copper Mines Pty Ltd v Cromarty Resources Pty Ltd; Cromarty Resources Pty Ltd v Thalanga Copper Mines Pty Ltd (No 2) [2021] NSWSC 1017

Thalanga failed to discharge its onus of proving that Cromarty would commence exploiting the Waterloo deposit in September 2023. Later Red River announcements showed a changed plan in which Liontown was prioritised as the next or third mine and Waterloo was placed on hold. The Court therefore could not be satisfied that Waterloo would be exploited from September 2023 and held that Thalanga's damages should not be calculated on that basis; Cromarty accepted that damages should instead be calculated on the basis that production at Waterloo would commence in 2033.

Jurisdiction
Australia
Judgment Date
13 August 2021
Procedural Posture
Equity Commercial List; Consequential Orders in Contracts/mining Tenements Proceedings / Consequential Orders Following Judgment Delivered on 4 June 2021
Outcome
Damages not to be calculated on the basis that the Waterloo deposit would be developed from September 2023.
Legal Topics
['mining Tenements' 'royalty Payable as Percentage of Net Sales Realisation' 'loss of Bargain Damages' 'commencement of Production at Mineral Deposit']
['contracts' 'mining Law' 'damages'] ['mining Tenements' 'royalty Payable as Percentage of Net Sales Realisation' 'loss of Bargain Damages' 'commencement of Production at Mineral Deposit']

Case Brief

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Procedural Posture

Equity Commercial List; Consequential Orders in Contracts/mining Tenements Proceedings / Consequential Orders Following Judgment Delivered on 4 June 2021

Legal Issues

  1. 1 ['Whether damages should be calculated on the basis that production at the Waterloo Primary deposit would commence in September 2023 and run in parallel with production from the Liontown deposit.' 'Whether Thalanga discharged its onus of showing that its proposed September 2023 production scenario was probable.']

Ratio Decidendi

Thalanga failed to discharge its onus of proving that Cromarty would commence exploiting the Waterloo deposit in September 2023. Later Red River announcements showed a changed plan in which Liontown was prioritised as the next or third mine and Waterloo was placed on hold. The Court therefore could not be satisfied that Waterloo would be exploited from September 2023 and held that Thalanga's damages should not be calculated on that basis; Cromarty accepted that damages should instead be calculated on the basis that production at Waterloo would commence in 2033.

Court Disposition

Damages not to be calculated on the basis that the Waterloo deposit would be developed from September 2023.

Orders

  • ["The parties should send the judge's Associate short minutes of orders to finalise the proceedings."]