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Supreme Court of Queensland SUPREME COURT OF QUEENSLAND CITATION: Callide Power Management P/L & Ors v Callide Coalfields (Sales) P/L & Ors; CS Energy Ltd v Callide Coalfields (Sales) P/L & Ors [2014] QSC 205 PARTIES: CALLIDE POWER MANAGEMENT PTY LTD ACN 082 468 700 (first applicant) and CALLIDE ENERGY PTY LIMITED ACN 082 468 746 (second applicant) and IG POWER (CALLIDE) LTD ACN 082 413 885 (third applicant) v CALLIDE COALFIELDS (SALES) PTY LTD ACN 082 543 986 (first respondent) and ANGLO COAL (CALLIDE) PTY LTD ACN 081 022 228 (second respondent) and ANGLO COAL (CALLIDE) NO. 2 PTY LTD ACN 004 784 454 (third respondent) CS ENERGY LIMITED ACN 078 848 745 (applicant) v CALLIDE COALFIELDS (SALES) PTY LTD ACN 082 543 986 (first respondent) and ANGLO COAL (CALLIDE) PTY LTD ACN 081 022 228 (second respondent) and ANGLO COAL (CALLIDE) NO. 2 PTY LTD ACN 004 784 454 (third respondent) FILE NO/S: BS12122/13 & BS12138/13 DIVISION: Trial 2 PROCEEDING: Application DELIVERED ON: 22 August 2014 DELIVERED AT: Brisbane HEARING DATE: 26 June 2014 JUDGE: Jackson J ORDER: On application 12122/13, the order of the Court is that: 1. Pursuant to r.171 of the Uniform Civil Procedure Rules 1999 (Qld) the following parts of the respondents’ amended defence be struck out: (i) the following words in paragraph 14: and identified in the respondents’ counterclaim (ii) the following words in subparagraph 18(a): the increased costs of mining and reduced profitability under the Coal Supply Agreement caused by the geological features encountered by the respondents in mining the Callide Mine (as defined in paragraph 7 of the respondents’ counterclaim), (iii) the following words in subparagraph 18(c): in the circumstances pleaded in paragraphs 19 to 28 and 122 of the respondents’ counterclaim (iv) the following words in subparagraph 21(b): the increased costs of mining and reduced profitability under the Coal Supply Agreement caused by the rainfall events, constituted, together with (v) the following words in subparagraph 21(d): in the circumstances pleaded in paragraphs 29 to 48 and 122 of the respondents’ counterclaim, (vi) the following words in subparagraph 28(b): the increased costs of mining and reduced profitability under the Coal Supply Agreement constituted, together with (vii) the following words in subparagraph 28(d): in the circumstances pleaded in paragraphs 62 to 105 and 122 of the respondents’ counterclaim (viii) the following words in subparagraph 30(b): the fact that the Coal Mine Owners have ceased to benefit under the Coal Supply Agreement constituted, together with (ix) the following words in subparagraph 30(d): in the circumstances pleaded at paragraphs 3 106 to 107 and 122 of the respondents’ counterclaim, (x) the following words in subparagraph 47(b): as a consequence of the change or changes in circumstances identified in the respondents’ counterclaim, (xi) the following words in subparagraph 47(ga)(i): as a consequence of the change or changes in circumstances identified in the respondents’ counterclaim. 2. The respondents be given leave to amend the defence. 3. The respondents pay the applicants’ costs of the application. On application 12138/13, the order of the Court is that: 1. Strike out the words “as a consequence of the change or changes in circumstances identified in the Respondent’s counterclaim” in the 12B of the defence 2. Strike out the words “as a consequence of the change or changes in circumstances identified in the Respondent’s counterclaim” in paragraph 12FA(1) of the defence 3. Strike out the words “in the circumstances pleaded in the respondent’s counterclaim” in paragraph13(a)(2) of the defence 4. Respondents pay the applicant’s costs of the application CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – DEFAULT OF PLEADING – where the coal supply contract between the parties provided a process for amendment by agreement upon a “Change Event” occurring – where the contract stipulated that notice of a “Change Event” must be given – where the applicants challenge the validity of the respondents’ notice of Change Event – where, in defending the validity of the notice and counterclaiming that the contract is void for frustration, the respondents allege the occurrence of the facts relied upon as constituting the relevant event or events in the notice of the Change Event –– whether the relevant paragraphs should be struck out as unnecessary, or tending to prejudice or delay the fair trial of the proceeding Uniform Civil Procedure Rules 1999 (Qld), r 166(4), r 171 A v Ipec Australia Ltd & Anor (1973) VR 39, cited Dey v Victorian Railways Commissioners (1948-1949) 78 CLR 62, cited Knowles v Roberts (1888) 38 Ch D 263, cited Rassam v Budge (1893) 1 QB 571, cited 4 COUNSEL: In proceeding BS12122/13 P O’Shea QC, with D O’Brien QC, for the applicants In proceeding BS12138/13 T O’Sullivan QC, with J O’Regan, for the applicants D Clothier QC, with SJ Webster, for the respondents in both proceedings SOLICITORS: In proceeding BS12122/13 Johnson Winter Slattery for the applicants In proceeding BS12138/13 Corrs Chambers Westgarth for the applicants Gilbert and Tobin Lawyers for the respondents in both proceedings Jackson J: [2] These are the reasons for orders I made in these two proceedings on 26 June 2014. [3] These two proceedings are managed together on the Commercial List because they raise nearly identical issues. Each stems from a long term coal supply agreement (“CSA”) between the owners and operators of a coal mine and their sales company, the seller, on the one hand and the owners and operators of a power station and their management company, the buyer, on the other hand.1 In proceeding 12122/13, the subject contract relates to a mine known as known as the Callide Coalfields and the Callide C Power Station. In proceeding 12138/13, the contract relates to a mine known as the Callide Mine and the Callide B Power Station. [4] Each CSA was originally made on 11 May 1998 and was for an initial term of ten years, to be followed by four successive option terms of five years. An obvious risk in relation to a long term CSA as between a coal miner and a power generator is that the operating conditions and the market conditions of either the coal industry or power generation industry may change in such a way as to affect the profitability of the operation conducted by the seller or buyer. Each of the CSAs contained a clause intended to meet some such contingencies in cl 12 as follows: “12.1 Principles (a) Each Party acknowledges and agrees: (i) subject to Clause 12.1(a)(ii), the Coal Mine Owners and the Buyer have an expectation of benefiting under this Agreement; (ii) subject to Clause 12.1(a)(iii), each Party supports the process of review set out in this Clause 12 to ensure both the Coal Mine Owners and the Buyer remain competitive in relation to their respective industries; and 1 In these reasons, having regard to the full terms of the contracts, I use “buyer” and “seller” slightly inaccurately. But I do so to make the expression of the reasons simpler. 5 (iii) during the Initial Term, the competitive position of the Power Station relative to other power stations operating in the Power Station’s industry in Queensland as at the Effective Date should be restored, having regard to the viability of the Coal Mine Owners’ mine in its industry. (b) Each Party agrees that circumstances may change during the Term of this Agreement which may require the terms of this Agreement to be reviewed to ensure those terms remain consistent with the principles set out in Clause 12.1(a). 12.2 Five Year Review Meeting During this Agreement, the Parties must: (a) convene a meeting of the Parties within 30 days of the fifth anniversary of the Commercial Load Date for Unit 1; (b) at that meeting, review the consistency of the operation of this Agreement against the principles set out in Clause 12.1(a); (c) within 14 days of that meeting, exchange all data which the Parties hold which is relevant to reviewing the consistency of the operation of this Agreement against the principles set out in Clause 12.1(a); and (d) use their best endeavours to review the consistency of the operation of this Agreement against the principles set out in Clause 12.1(a) without 90 days of that meeting. 12.3 Change Events (a) A ‘Change Event’ is a change in circumstances which has, or will have, a material effect on the competitiveness of either the Coal Mine Owners or the Buyer (in the reasonable opinion of a Party) in relation to the industry in which it operates, and includes, without limitation: (i) the Commercial Load Date of Unit 2 occurring more than 18 months after the Effective Date; (ii) if the Buyer reasonably demonstrates, by the elimination of other relevant factors, that there is a change in coal prices being paid by other power stations. The Parties acknowledge that the Buyer must reasonably demonstrate, by the elimination of other relevant factors, that there is a material adverse change in the competitive position of the Power Station which is due to changes in coal prices being paid by other power stations, before the Parties will be obliged to review this Agreement against the principle set out in Clause 12.1(a)(iii). 6 (iii) major changes to working conditions within the coal mining industry, including, without limitation, advances in technology which were not foreseen at the date of this Agreement; (iv) a demonstrated (by the Seller) increase in the long term (being at least five years) trend in electricity price occurring during the whole or any part of any period when an EMI is not operative; and (v) a change in governmental policy, or a change in a law or regulation, relating to environmental standards and compliance with those standards.
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