SINO IRON PTY LTD -v- MINERALOGY PTY LTD [2026] WASCA 71 (S)

[2026] WASCA 71 (S) Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SINO IRON PTY LTD -v- MINERALOGY PTY LTD [2026] WASCA 71 (S) CORAM : QUINLAN CJ VAUGHAN JA SMITH AUJ HEARD : 4 JUNE 2026 DELIVERED : 4 JUNE 2026 PUBLISHED : 5 JUNE 2026 FILE NO : CACV 35 of 2023 BETWEEN : SINO IRON PTY LTD First Appellant KOREAN STEEL PTY LTD Second Appellant CITIC LIMITED Third Appellant AND MINERALOGY PTY LTD First Respondent CLIVE FREDERICK PALMER Second Respondent THE STATE OF WESTERN AUSTRALIA Third Respondent -- 1 of 16 -- [2026] WASCA 71 (S) Page 2 ON APPEAL FROM: Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA Coram : K MARTIN J Citation : SINO IRON PTY LTD v MINERALOGY PTY LTD [No 15] [2023] WASC 56 File Number : CIV 1915 of 2019 Catchwords: Practice and procedure – Application to reopen appeal – Whether court misapprehended facts or departed from common position of the parties – Costs of appeal – Special costs orders Legislation: Nil Result: Application to reopen refused Costs orders made Representation: Counsel: First Appellant : N C Hutley SC with J H Kirkwood SC, T Maxwell & S Hartford-Davis Second Appellant : N C Hutley SC with J H Kirkwood SC, T Maxwell & S Hartford-Davis Third Appellant : N C Hutley SC with J H Kirkwood SC, T Maxwell & S Hartford-Davis First Respondent : P Dunning KC with K S Byrne Second Respondent : No appearance Third Respondent : No appearance -- 2 of 16 -- [2026] WASCA 71 (S) Page 3 Solicitors: First Appellant : Herbert Smith Freehills Kramer Second Appellant : Herbert Smith Freehills Kramer Third Appellant : Herbert Smith Freehills Kramer First Respondent : Robinson Nielsen Legal Second Respondent : No appearance Third Respondent : State Solicitor's Office Cases referred to in decision: Autodesk Inc v Dyason [No 2] [1993] HCA 6; (1993) 176 CLR 300 Elliott v The Queen [2007] HCA 51; 234 CLR 38 JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [2020] WASCA 112 (S) Minister for Education v Klein [2005] WASCA 185 (S) Sino Iron Pty Ltd v Mineralogy Pty Ltd [2022] WASC 151 Sino Iron Pty Ltd v Mineralogy Pty Ltd [2026] WASCA 71 Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56 (S) Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S) -- 3 of 16 -- [2026] WASCA 71 (S) REASONS OF THE COURT Page 4 REASONS OF THE COURT: 1 On 28 May 2026 we delivered our reasons for judgment for dismissing the CITIC parties' appeal from the judgment of Kenneth Martin J in the primary proceedings and for dismissing Mineralogy's cross-appeal.1 2 Mineralogy moved for orders giving effect to the reasons for judgment. The CITIC parties, by contrast, applied to re-open the appeal on the basis that the Court had departed from a common position of the parties, without notice to the CITIC parties and on which they did not have an opportunity to be heard, and which caused the judgment to miscarry. 3 On 4 June 2026, we refused the application to re-open the appeal and made final orders in the appeal and cross-appeal, with reasons to be published. 4 These are our reasons for those orders. Re-opening 5 The jurisdiction of this Court to 're-open' a proceeding until judgment has been drawn, passed and entered is settled.2 In that regard the jurisdiction is to be exercised with caution, having regard to the public interest in the finality of litigation.3 As Mason CJ said in Autodesk Inc v Dyason [No 2]:4 [I]t must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to 1 Sino Iron Pty Ltd v Mineralogy Pty Ltd [2026] WASCA 71 (appeal reasons). These reasons should be read with the appeal reasons and use the same defined terms that are set out in Schedule 1 to the appeal reasons. 2 Elliott v The Queen [2007] HCA 51; 234 CLR 38 (Elliott v The Queen) [31] (Gummow, Hayne, Heydon, Crennan & Kiefel JJ). 3 Autodesk Inc v Dyason [No 2] [1993] HCA 6; (1993) 176 CLR 300 (Autodesk Inc v Dyason [No 2]), 303 (Mason CJ); Minister for Education v Klein [2005] WASCA 185 (S) [7] (Steytler P). 4 Autodesk Inc v Dyason [No 2], 303 (Mason CJ); Elliott v The Queen [32] (Gummow, Hayne, Heydon, Crennan & Kiefel JJ). -- 4 of 16 -- [2026] WASCA 71 (S) REASONS OF THE COURT Page 5 provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases. Did the Court misapprehend the facts and depart from a common position? 6 The CITIC parties' application to re-open the judgment relates to a portion of the appeal reasons concerning the CITIC parties' contention that the Mining Right and Site Lease Agreements (MRSLAs) between two of the CITIC parties and Mineralogy contained an implied term to the effect that Mineralogy would grant additional tenure to the CITIC parties as they 'reasonably required'. 7 We ultimately concluded that the MRSLAs did not contain the MRSLA Implied Necessary Tenure Term.5 Relevant portion of the appeal reasons 8 As a preliminary matter as to whether the MRSLAs contained the MRSLA Implied Necessary Tenure Term, the appeal reasons addressed the express terms of the MRSLAs, as to whether they revealed a contractual intention that Mineralogy had agreed to grant additional tenure in future – that is, that there would (necessarily) be further areas added to the Site Lease Area under the MRSLAs. 9 The relevant portion of the appeal reasons is as follows:6 368 … In that regard, the CITIC parties submitted that the parties to the MRSLAs '[had] agreed all terms about future areas other than the area, including the consideration', such that the only issue contemplated by the MRSLAs was 'one about identifying that which it [i.e. future areas] will comprise'. 369 The problem with this submission is that the submission presumes (or assumes), and also suggests that the MRSLAs on their proper construction presume, that there will (necessarily) be further areas added to the Site Lease Area. 370 In our view, the terms of the MRSLAs, read as a whole, do not reflect such an objective contractual intention or purpose. The most that can be said from the terms of the MRSLAs is that they contemplated that there might be an agreement in future that granted Sino Iron and Korean Steel additional tenure. This is obviously reflected in the references to 'otherwise agreed in writing' (in cl 1.1 and cl 4.1) and in Recital E, which provides: 5 Appeal reasons [398]. 6 Appeal reasons [368] - [375] (footnotes omitted). -- 5 of 16 -- [2026] WASCA 71 (S) REASONS OF THE COURT Page 6 Mineralogy will also consider any further requests by [Sino Iron or Korean Steel] for other tenure [Sino Iron or Korean Steel] reasonably requires for the purposes of its project. (emphasis added) 371 As we have said, it is apparent from these matters that the MRSLAs contemplate that the parties might 'by agreement' extend the Site Lease Area or there might otherwise be further tenure provided to Sino Iron or Korean Steel. The MRSLAs do not, however, reveal an objective intention that this will occur or that the parties were obliged to enter into such an agreement; less still do they make provision for the circumstances in which, or the terms upon which, that might occur. 372 Nor can the CITIC parties call in aid any extrinsic surrounding circumstance known to the parties at the time of the creation of the MRSLAs, to the effect that the grant of additional tenure was inevitably going to be required for the purposes of the Project. 373 In that regard, in the primary proceedings, the CITIC parties identified a number of surrounding circumstances which they contended bore upon the construction of the MRSLAs (including as to the implication of the MRSLA Implied Necessary Tenure Term). One of those 'matters of objective context' was expressed in the following terms: The Project Agreements contemplated that the Project would necessarily comprise phases, beginning with the construction of infrastructure necessary to undertaking mining, processing and export operations, before operations moved to the production phase. Similarly, they contemplated the need for ongoing government approvals, including further approved proposals under the State Agreement, and the grant of further tenure. Such a process was necessarily iterative ... 374 In dealing with this alleged 'surrounding circumstance', the learned trial judge did not find that the project agreements contemplated the 'grant of further tenure'. To the contrary, his Honour concluded, in relation to this 'surrounding circumstance': Again, what is presented above, is essentially another argument of characterisation, rather than an assembly of fact or facts. Nevertheless, most contentions so asserted can be accepted, without real controversy. Indeed, they are relatively obvious on a plain reading of, say, the MRSLAs as Sino Iron Project documents. A necessary qualification, however, concerns the embedded argument (not of fact, but of law) that the Project Agreements (as referred) contemplate a need for 'the grant of further tenure'. That is thoroughly disputed at the trial. -- 6 of 16 -- [2026] WASCA 71 (S) REASONS OF THE COURT Page 7 Certainly as now seen, a potential future grant to be considered by Mineralogy of 'other tenure' to Sino Iron and Korean Steel – is identifiable – as the subject matter of the Recital E, in each of the Sino Iron and Korean Steel MRSLAs. But as also seen, MRSLA Recital E only addresses additional tenure as a topic for Mineralogy to 'consider' a 'request' in the future for such 'other tenure' that is 'reasonably required' – for the purposes of Sino Iron or Korean Steel's 'Project'. 375 The presumption (or assumption), in the CITIC parties' submissions, that the MRSLAs on their proper construction, contemplate that there will (necessarily) be further areas added to the Site Lease Area is, accordingly, not one that can be sustained. Alleged misapprehension and departure from common position 10 The particular alleged misapprehension in the appeal reasons identified by the CITIC parties is said to be our statement, at [372], that the CITIC parties could not 'call in aid any extrinsic surrounding circumstance known to the parties at the time of the creation of the MRSLAs, to the effect that the grant of additional tenure was inevitably going to be required for the purposes of the Project'. 11 The CITIC parties contend that this paragraph departs from a common factual basis that 'there would have to be further grants of tenure during the life of the Project'.7 12 The CITIC parties rely upon the following passage from the submissions, in the appeal by the first respondent on day 4 of the appeal. Mr Dunning KC, who appeared for Mineralogy, said the following:8 Can I then turn to the MRSLAs please? There is no doubt the parties knew that to fully realise the proposals, there would have to be further grants of tenure of one sort or another during the life of the project. And such grants were in the minds of the parties when they contracted. So, it is an important background fact known to all parties the time of contracting. So, it is important to common ground. But what one takes from that commonly known feature is what is in controversy. (emphasis added) 7 Appellants' Submissions Filed Under Order 1 made on 28 May 2026 (Appellants' Further Submissions) [1]. 8 Appeal ts 332. See Appellants' Submissions dated 27 May 2026 [4]; Appellants' Further Submissions [1]. -- 7 of 16 -- [2026] WASCA 71 (S) REASONS OF THE COURT Page 8 13 While the CITIC parties did not refer to it in their submissions on the re-opening application, it should be noted that Mr Dunning immediately continued:9 It was certainly common ground at trial, and we think it is probably still common ground here, that there is no express mechanism in the MRSLAs or any other applicable contract conferring the kind of compulsory acquisition power asserted by the CITIC parties, that is, the dichotomy between a duty to grant as opposed to an obligation to consider or a duty to consider. 14 The CITIC parties noted that in their reply submissions on the appeal they had confirmed the 'common ground'.10 15 These references, the CITIC parties submit, reveal the common position from which, it is submitted, the Court departed. The CITIC parties also sought to adduce additional evidence on the application, reproducing extracts from the parties submissions before the learned trial judge to demonstrate that this 'common position' also existed at trial. Surprisingly, those extracts did not manage to find their way into the 9,600 pages of appeal books filed in the appeal. Did the Court depart from a common position? 16 We are satisfied that we have not misapprehended the position of the parties or departed from a common position. 17 In that regard it is important to understand the context in which the impugned passage of the appeal reasons appears. In context the passage is not concerned with whether the parties commonly understood that, at some point in the future, the CITIC parties would, by some means or other, require more land for the purposes of the Project, because, for example, during the life of the Project more areas for waste rock and tailings would be needed. In relation to that matter the learned trial judge found 'it is also the case that such generated waste rock and tailings would then in a physical sense, require some eventual storage areas somewhere - to accommodate storage of that derived waste'.11 18 On the contrary, the impugned passage (appeal reasons [372]) is concerned with whether it was commonly understood that Mineralogy would necessarily provide that additional land. That is, the passage is concerned with the distinction between a 'potential future grant' of 9 Appeal ts 332. 10 Appeal ts 578. 11 Primary reasons [903]. -- 8 of 16 -- [2026] WASCA 71 (S) REASONS OF THE COURT Page 9 tenure and a necessary (or inevitable) grant of future tenure by Mineralogy. Given that Mineralogy's alleged obligation was the whole point of the appeal, it might have been thought that the CITIC parties would have read and understood [372] of the appeal reasons in that way. 19 In any event, [372] of the appeal reasons should not be read in isolation, but must be understood in the context in which it appears, both as to the preceding paragraphs and the paragraphs that immediately follow. Indeed the paragraphs that immediately follow (commencing 'In that regard') specifically identify the particular surrounding circumstance relied upon by the CITIC parties, to which [372] of the appeal reasons is directed. It concerned whether there was a surrounding circumstance known to the parties that there would be 'the further grant of tenure' under the Project Agreements. 20 In those paragraphs ([373] to [374]), the appeal reasons identify the particular surrounding circumstance concerned, and the learned trial judge's conclusions in relation to that particular alleged surrounding circumstance (at Primary reasons [907] to [911]). 21 In their submissions in support of re-opening, the CITIC parties stated: 'Whilst the passages at J[907]-[911] are not contrary to the common position … the common position is a contextual factor that undermines the interpretation of the Project Agreement adopted by the CA on the basis of those passages'.12 This, with respect, demonstrates that the appeal reasons did not depart from the 'common position'. That is because 'the passages at J[907]-[911]' are the only alleged surrounding circumstance or common position that the impugned passage is referring to. It was not referring to the 'common position' that at some point in the future, the CITIC parties would, by some means or other, require more land (or as the learned trial judge put it 'some eventual storage areas somewhere'). 22 At the hearing of re-opening application, the CITIC parties submitted that [373] to [374] of the appeal reasons (referring to Primary reasons [907] to [911]) 'are not concerned with the fact, they're concerned with the meaning of the agreement'.13 That submission overlooks the fact that the matter dealt with in [372] was nevertheless what the CITIC parties identified as an objective surrounding circumstance and was responding to that alleged objective surrounding 12 Appellants' Further Submissions [12]. 13 Appeal ts 670. -- 9 of 16 -- [2026] WASCA 71 (S) REASONS OF THE COURT Page 10 circumstance. It was not dealing with some other 'commonly known fact'. 23 As is clear from the context, the appeal reasons at this point were dealing with the distinction between whether the parties commonly understood that Mineralogy would (necessarily) expand the Site Lease Area in the future and whether it might do so. This distinction is the very distinction appearing in Mineralogy's submissions in the appeal (but not referred to in the CITIC parties' application) of 'the dichotomy between a duty to grant as opposed to an obligation to consider or a duty to consider' (see [13] above). 24 The significance of that distinction was that it addressed the premise in the CITIC parties' case on appeal that the MRSLAs, on their proper construction, contained an agreement by Mineralogy not only to consider, but to grant, additional tenure. 25 This is apparent from the passage of the appeal reasons that immediately follows:14 376 Once this is appreciated, a number of the CITIC parties' contentions fall away. 377 The CITIC parties, for example, submitted: [B]y cl 4.2, Mineralogy has agreed to accept a payment of $5,000 'in consideration of' the grant of a sublease over the whole of the Site Lease Area (as defined) including over such further areas as may 'otherwise be agreed in writing'. This is not an 'agreement to agree', because the reference in Recital E to 'reasonably requires' supplies the objective criterion against which, in case of dispute, the further areas to be 'agreed in writing' can be determined by a Court. In Sweet & Maxwell Ltd v Universal News Services Ltd [1964] 2 QB 699, the English Court of Appeal held that an agreement for a lease which was to contain 'such other covenants and conditions as shall be reasonably required' by the lessor was sufficiently certain to be a concluded contract for a lease and was capable of specific performance. Sweet & Maxwell was cited with approval by the High Court in Godecke v Kirwan (1973) 129 CLR 629. 378 As can be seen, this submission treated the words in Recital E as if they created an entitlement to tenure 'reasonably required' by 14 Appeal reasons [376] - [379] (footnotes omitted). -- 10 of 16 -- [2026] WASCA 71 (S) REASONS OF THE COURT Page 11 the CITIC parties. In that sense they beg the very question as to whether the MRSLAs, as a whole, contain such an entitlement. The analogy in this submission with an agreement for a lease is inapposite. Unlike a case in which a lease is agreed, subject to such covenants and conditions as are reasonably required, there is (in the MRSLAs) no extant 'agreement' for the expansion of the Site Lease Area, only the recognition that there might be such an agreement in the future. 379 To speak of 'settled terms' (such as consideration) of an agreement for such future areas makes no sense, unless there is an entitlement to such an agreement. For this reason, as they presume an obligation on the part of Mineralogy to 'agree' to the grant of additional tenure, grounds 1 and 2 have not been made out. 26 The distinction between will and might in the context of the parties' common understanding of the prospect of Mineralogy providing additional tenure may be a subtle one, but it is real, nonetheless. 27 The appeal reasons did not depart from the common factual position alleged by the CITIC parties. The appeal reasons at [372] related to a different matter. There having been no departure from any common position of the parties, the CITIC parties were not denied procedural fairness. 28 We should also note that Mineralogy, in its submissions in opposition to the re-opening application, also denied that the 'common position' asserted by the CITIC parties was established. They submitted that '[t]he 'common position' the CITIC Parties purport to invoke was no more than an observation that, to fully realise the proposals, further grants of tenure 'of one sort or another' may be required'.15 It is not necessary to address that issue because, as we have explained, the appeal reasons at [372] did not concern the 'common position' upon which the re-opening application was based. Did the judgment in any event miscarry? 29 For completeness, we would observe that, in the event that we did misapprehend the parties' position in relation to the relevant surrounding circumstances, it would not have affected our decision in any material respect. 30 In particular, even if it had been contemplated by the parties that there would be further grants of tenure, by Mineralogy, we would still 15 First Respondent's Submissions Filed Under Order 1 made on 28 May 2026 [14] - [17]. -- 11 of 16 -- [2026] WASCA 71 (S) REASONS OF THE COURT Page 12 conclude, for the reasons given at [382] to [396] of the appeal reasons, that, on the proper construction of the MRSLAs, 'the grant of any additional tenure by Mineralogy to the CITIC parties would be a matter to be determined, if at all, by the agreement of the parties acting in good faith but in accordance with their own commercial interests'.16 31 That is the basis upon which the appeal reasons address the other contractual obligations including the obligation of good faith and mutual cooperation. 32 We therefore refused the application to re-open the appeal. 33 Orders were therefore made dismissing the appeal and the cross-appeal, in accordance with the appeal reasons. Costs 34 We also dealt with the issue of the costs of the appeal and the cross-appeal. 35 The parties filed competing minutes of orders in relation to costs prior to the hearing on 28 May 2026, following receipt of an advance copy of the appeal reasons. They each accepted that the CITIC parties should be ordered to pay Mineralogy's costs of the appeal and that Mineralogy should be ordered to pay the CITIC parties' costs of the cross-appeal. The differences between the parties related to the special costs order sought under s 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA). 36 Before addressing the special costs orders sought by the parties, we address a preliminary matter. On 4 June 2026, having dismissed the appeal and cross-appeal, Mineralogy advised the Court, for the first time and contrary to its Minute of Proposed orders filed prior to 28 May 2026, that it wished to seek programming order for an application, by Mineralogy, for indemnity costs. Apparently the parties had previously corresponded in relation to such application but had not so informed the Court. 37 We therefore heard from junior counsel for Mineraology as to the basis for the proposed application for indemnity costs with a view to determining whether such an application was reasonably arguable. Counsel identified a number of paragraphs of the appeal decisions in relation to which we concluded that the CITIC parties contentions' were 16 Appeal reason [397]. -- 12 of 16 -- [2026] WASCA 71 (S) REASONS OF THE COURT Page 13 rejected and to references in the appeal reasons critical of the conduct of the CITIC parties. The latter included references to the conduct of the CITIC parties, not the appeal proceeding itself, but in relation to the events the subject of the litigation.17 38 We were not satisfied that there was a reasonably arguable basis for indemnity costs. As we observed in the appeal reasons, the parties to this appeal conduct their voluminous litigation without reference to its cost and have a tendency to raise each and every issue that might be thought to be arguable.18 As Quinlan CJ observed in Sino Iron Pty Ltd v Mineralogy Pty Ltd [2022] WASC 151:19 The parties can, of course, spend as much as they wish on legal costs. Nevertheless, in litigation of this type, it is extremely difficult to make any real assessment as to whether one party has 'by its conduct unnecessarily increased the cost of the litigation', when the parties appear to be prepared to conduct the litigation with very little reference to its cost. It also rather lessens the extent to which an order for indemnity costs can operate as any sort of sanction to mark the Court's disapproval of unreasonable conduct. To the contrary, an order for indemnity costs in a case such as this could well have the opposite effect. To order indemnity costs (where 'everything is included unless it is driven out by the words of exclusion'), might legitimately be seen as lending the Court's imprimatur to the conduct of litigation without reference to cost, or as indicating that, for some litigants, the Court will leave it to the parties to determine what is 'reasonable' (subject only to the residual power of the taxing officer to be positively satisfied that some particular amount had been unreasonably incurred). 39 We turn then to the special costs orders. 40 First, Mineralogy sought special costs orders in relation to its costs of the appeal only, whereas the CITIC parties submitted that any special costs orders ought to apply mutually to both the costs with respect to the appeal and the cross-appeal. We accept the CITIC parties' submissions in that regard; the same basis for costs recovery should apply to each of the costs orders. 41 Secondly, Mineralogy sought an order that the limits be removed for the maximum hourly daily rates for counsel fees under the relevant costs determinations. The CITIC parties, on the other hand, submitted 17 For example the references to appeal reasons [450] and [488] (appeal ts 686). 18 Appeal reasons [3]. 19 Sino Iron Pty Ltd v Mineralogy Pty Ltd [2022] WASC 151 [44] - [45] (Quinlan CJ). -- 13 of 16 -- [2026] WASCA 71 (S) REASONS OF THE COURT Page 14 that a ceiling of up to double the maximum allowance daily rates be allowed, consistent with the orders made by the learned trial judge.20 42 We are satisfied, in accordance with the well-established criteria in relation to s 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA) and its predecessors,21 that it is appropriate for a special costs order to be made in this regard. In our opinion, the rates in the determinations are inadequate because of the unusual difficulty, complexity or importance of the matter. 43 We would not, however, order that the limits be removed entirely, nor indeed that it is appropriate to double the maximum limits allowed under the determinations. In our view, consistent with previous decisions of this Court, the maximum limits for counsel should be increased by 50%.22 In that regard, we do not agree with the learned trial judge, at least as far as the appeal was concerned, that the case presented 'wholly unique and almost unconquerable dimensions and complexities'.23 In our assessment, the complexity wrought by the approach taken by the parties to this dispute is comparable to that taken by many other parties to what we described in the appeal reasons as 'mega-litigation'. In that regard, the interests of justice include the need to keep the costs of litigation generally within reasonable bounds and, as we have said, the Court should not lend its imprimatur to the conduct of litigation without reference to cost.24 44 We reach the same conclusion in relation to the determination allowed in relation to time and total costs for solicitors. 45 Next, Mineralogy sought an order allowing costs under the category item 35 ('Other work') of Table B of the relevant costs determinations. It did not, however, identify any 'Other work' relevant to the appeal that would not otherwise be dealt with by the relevant items in the costs determinations. Nor, when asked, was counsel for Mineralogy able to identify any such 'Other Work'. There was therefore no basis for such an order. 46 Finally, Mineralogy sought an order allowing claims in relation to travel and accommodation under category item 36 ('Disbursements') of 20 Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56 (S). 21 See Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S) [11] - [16] (Buss P, Murphy & Beech JJA). 22 See e.g. JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [No 2] [2020] WASCA 112 (S) [11(b)] (Buss P, Beech and Vaughan JJA). 23 Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56 (S) [80] (Kenneth Martin J). 24 Sino Iron Pty Ltd v Mineralogy Pty Ltd [2022] WASC 151 [20], [45] (Quinlan CJ). -- 14 of 16 -- [2026] WASCA 71 (S) REASONS OF THE COURT Page 15 Table B of the relevant costs determinations. The effect of such an order would provide a complete indemnity in relation to travel and accommodation expenses, in circumstances in which the relevant determination make specific provision (in item 37) for travel expenses. No basis to depart from the costs determination in that respect was identified. Final orders 47 The final orders in the appeal and cross-appeal were as follows: 1. The appeal in CACV 35 of 2023 is dismissed. 2. The cross-appeal in CACV 37 of 2023 is dismissed. 3. The Appellants pay the First Respondent's costs of the appeal (including any reserved costs) to be taxed if not agreed and that special costs orders be made under section 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA) that the First Respondent's costs of the appeal/s be taxed: (a) by reference to a ceiling of up to 150% of the maximum allowable hourly and daily rates for Senior Counsel and Junior Counsel fixed under Table A of the Legal Profession (Supreme Court and District Courts) (Contentious Business) Determination 2022 (WA) and under Table A of the Legal Profession (Supreme Court and District Courts) (Contentious Business) Determination 2024 (WA); and (b) by reference to a ceiling of up to 150% of the maximum allowances for time and total costs or by the classification of the experience of the fee earner under the items of Table B of the Legal Profession (Supreme Court and District Courts) (Contentious Business) Determination 2022 (WA) and Table B of the Legal Profession (Supreme Court and District Courts) (Contentious Business) Determination 2024 (WA). 4. The Cross-Appellant pay the costs of the cross-appeal of the First Respondent by Cross-Appeal, Second Respondent by Cross-Appeal and Third Respondent by Cross-Appeal (Respondents by Cross-Appeal) to be taxed if not agreed and that special costs orders be made under section 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA) that the Respondents by Cross-Appeal's costs of the cross-appeal be taxed: -- 15 of 16 -- [2026] WASCA 71 (S) REASONS OF THE COURT Page 16 (a) by reference to a ceiling of up to 150% of the maximum allowable hourly and daily rates for Senior Counsel and Junior Counsel fixed under Table A of the Legal Profession (Supreme Court and District Courts) (Contentious Business) Determination 2022 (WA) and under Table A of the Legal Profession (Supreme Court and District Courts) (Contentious Business) Determination 2024 (WA); and (b) by reference to a ceiling of up to 150% of the limits imposed for time and total costs or by the classification of the experience of the fee earner under the items of Table B of the Legal Profession (Supreme Court and District Courts) (Contentious Business) Determination 2022 (WA) and Table B of the Legal Profession (Supreme Court and District Courts) (Contentious Business) Determination 2024 (WA). I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia. JN Principal Associate to the Hon Chief Justice Quinlan 5 JUNE 2026 -- 16 of 16 --