Noble Resources International Pte Ltd v Gloucester Coal Ltd & Anor [2021] NSWSC 346

Supreme Court New South Wales

Medium Neutral Citation: Noble Resources International Pte Ltd v Gloucester Coal Ltd & Anor [2021] NSWSC 346 Hearing dates: 01 April 2021 Date of orders: 07 April 2021 Decision date: 07 April 2021 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Further disclosure of documents ordered Catchwords: PRACTICE AND PROCEDURE – disclosure of documents – whether plaintiff should make further disclosure of documents Category: Procedural rulings Parties: Noble Resources International Pte Ltd (Plaintiff) Gloucester Coal Ltd (First Defendant) Yancoal Australia Ltd (Second Defendant) Representation: Counsel: Mr D A Hughes Mr J Hutton

Solicitors: Clayton Utz (Plaintiff) Ashurst Australia (Defendants) File Number(s): 2018/238975

Judgment 1. The plaintiff, Noble Resources International Pte Ltd ("Noble") is a commodities trader, including in coal. 2. The defendants, Gloucester Coal Ltd ("Gloucester") and Yancoal Australia Ltd ("Yancoal"), are coal miners. 3. Noble, its parent Noble Group Ltd ("Noble Group"), and Gloucester are parties to a Marketing Services Agreement ("the Agreement") made in or about July 2011. Pursuant to the Agreement, Gloucester agreed to pay Noble a "marketing fee" calculated as a percentage of the volume weighted price of certain coal described as "Export Coal". 4. The term of the Agreement continues until 31 December 2040. 5. Noble claims that Gloucester has breached the Agreement in that: 1. it has failed to make a marketing fee payment for 2014 of some US$1.5 million; 2. it has failed to make marketing fee payments or give necessary disclosures for the years 2015, 2016 and 2017, which Noble estimates ought to have approximated some US$44 million; and 3. by reason of these breaches, Gloucester has evinced an intention not to be bound by the agreement, justifying its termination and a claim by Noble for loss of bargain damages of some US$127 million. 1. The proceedings are set down for 15 days commencing 18 October 2021. 2. There has been a first round of discovery. I am dealing with the dispute concerning a second round of discovery. 3. The dispute focuses on two issues raised by Gloucester/Yancoal: 1. Gloucester's estoppel and waiver defences to Noble's claim; and 2. Gloucester's claim that an "insolvency event" has occurred concerning Noble and Noble Group such as has given rise to an entitlement for Gloucester to terminate the Agreement. 1. The parties have set out their positions concerning each disputed category in a "Redfern Schedule". In the course of argument, certain categories were agreed.