Precious Metals Australia Limited v Xstrata Windimurra Pty Limited & Anor; Precious Metals Australia Limited v Xstrata (Schweiz) AG [2005] NSWSC 220

Precious Metals Australia Limited v Xstrata Windimurra Pty Limited & Anor; Precious Metals Australia Limited v Xstrata (Schweiz) AG [2005] NSWSC 220

Upon interpretation of clause 7.7(a) of the Royalty Agreement, Xstrata is not liable to pay or reimburse PMA’s costs for the action against Xwin as they are incurred or prior to resolution of action 50113/04, nor regardless of success. The Court made an order on the separate question accordingly. Directions were given for both related proceedings to be heard together, and costs were awarded to Xstrata (Schweiz) AG as the successful party on the separate question.

Jurisdiction
Australia
Judgment Date
17 March 2005
Procedural Posture
Equity Commercial Proceedings / Determination of Costs and Directions on Separate Question
Outcome
Orders made on separate question and costs; security for costs ordered; related proceedings to be heard together.
Legal Topics
['costs' 'indemnity' 'security for Costs' 'related Proceedings' 'construction of Contract Clauses']
['equity' 'commercial Law'] ['costs' 'indemnity' 'security for Costs' 'related Proceedings' 'construction of Contract Clauses']

Case Brief

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Procedural Posture

Equity Commercial Proceedings / Determination of Costs and Directions on Separate Question

Legal Issues

  1. 1 ['Whether Xstrata is liable under clause 7.7(a) of the Royalty Agreement to pay or reimburse PMA for costs incurred in prosecuting action 50113/04 as and when incurred or regardless of outcome' "Whether declaration should be made regarding Xstrata's indemnity for PMA's costs if PMA is successful" 'Appropriate orders as to costs and security for costs in related proceedings']

Ratio Decidendi

Upon interpretation of clause 7.7(a) of the Royalty Agreement, Xstrata is not liable to pay or reimburse PMA’s costs for the action against Xwin as they are incurred or prior to resolution of action 50113/04, nor regardless of success. The Court made an order on the separate question accordingly. Directions were given for both related proceedings to be heard together, and costs were awarded to Xstrata (Schweiz) AG as the successful party on the separate question.

Court Disposition

Orders made on separate question and costs; security for costs ordered; related proceedings to be heard together.

Orders

  • ['Court answered separate question: Xstrata not liable for costs as and when incurred or regardless of success as per Royalty Agreement clause 7.7(a).' 'Order that PMA pay the costs of Xstrata (Schweiz) AG of the summary judgment motion and of the separate question determination on a party party basis.' "Order that...