KBL Mining Limited v Kidman Resources Limited & Ors [2015] NSWSC 515

Supreme Court New South Wales

Medium Neutral Citation: KBL Mining Limited v Kidman Resources Limited & Ors [2015] NSWSC 515 Hearing dates: 8 and 9 April 2015 Date of orders: 07 May 2015 Decision date: 07 May 2015 Jurisdiction: Equity Division Before: White J Decision: Refer to para [215] of judgment. Catchwords: CONTRACT – interpretation – obligation to pay "interest " on "Secured Money" - consideration of what constitutes interest – whether difference between subscription and redemption values of promissory notes issued by the plaintiff is "interest" under a related contract – "Secured Money" included money owing but not yet payable - held that, despite the strict literal meaning of the clause, the surrounding circumstances made it clear that the difference between subscription and redemption values of the notes was "interest" on "Secured Money" under the contract and no further interest was payable under the contract

CONTRACT – interpretation – contract provided that defendant company may appoint persons to investigate affairs of plaintiff if the defendant "considers that an Event of Default has occurred" – defendant served series of invalid notices alleging defaults – defendant seeking to trigger entitlement to enforce security before date for redemption of notes – defendant's director not called - whether service of notice and email sent from defendant's solicitors was sufficient evidence that the defendant considered that an Event of Default had occurred – held that the defendant had not established that it considered that an Event of Default had occurred

EQUITY – rectification – where plaintiff succeeded on its contractual interpretation argument as to interest – held that contract should also be rectified for abundant caution by inserting a new clause