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

New South Wales Supreme Court

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

HEARING DATE(S) : 17/03/05

JUDGMENT DATE : 17 March 2005

Equity Division JURISDICTION : Commercial List

JUDGMENT OF : Einstein J

DECISION : Orders made on separate question. Costs orders made.

CATCHWORDS : Costs - Related proceedings appropriate to be heard together

LEGISLATION CITED : Supreme Court Rules

CASES CITED : Precious Metals Australia Limited v Xstrata Windimurra Pty Limited & Anor [2005] NSWSC 141

Precious Metals Australia Limited (Plaintiff in 50113/04; 50003/05) Xstrata Windimurra Pty Limited (First Defendant 50113/04) PARTIES : Xstrata (Schweiz) AG (Second Defendant 50113/04; Defendant 5003/05)

FILE NUMBER(S) : SC 50113/04; 50003/05

Mr RJL McCormack (Plaintiff) COUNSEL : Mr MR Elliott (Defendants)

Piper Alderman (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendants)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

Einstein J

Thursday 17 March 2005 ex tempore Revised 17 March 2005

50113/04 Precious Metals Australia Limited v Xstrata Windimurra Pty Limited & Anor

50003/05 Precious Metals Australia Limited v Xstrata (Schweiz) AG JUDGMENT The state of the proceedings 1 The two sets of related proceedings presently before the Court for the purpose of dealing with costs and further directions were explained in the judgment delivered in the contract proceedings on 9 March 2005: see [2005] NSWSC 141 at paragraphs [4]-[13]. The guarantee proceedings 2 The proper order to be made in the guarantee proceedings is as follows: A The Court answers the question separated out for initial hearing by order made under Part 31 of the Supreme Court Rules as follows: Upon the proper construction of clause 7.7(a) of the Royalty Agreement, such Royalty Agreement being considered as a whole, Xstrata is not liable to pay or reimburse the costs, charges and expenses as incurred, and [which] may hereafter be incurred by the plaintiff ("PMA") in prosecuting action 50113 of 2004 ("Main Action") against Xwin: (1) as and when incurred and on demand (that is, before resolution of action 50113 of 2004); (2) whether or not PMA succeeds or is entitled to succeed in that action.