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

[2026] WASCA 71 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 CORAM : QUINLAN CJ VAUGHAN JA SMITH AUJ HEARD : 12 - 15, 19 - 21 AUGUST 2024 DELIVERED : 28 MAY 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 168 -- [2026] WASCA 71 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: Contract – State Agreement – Project agreements for mining project pursuant to State Agreement – Proposed mine continuation proposals under State Agreement – Whether contractual entitlement to additional tenure for purposes of proposed Mine Continuation Proposals – Express terms of project agreements – Obligation on Proponent parties under State Agreement to implement prior approved proposals and to ensure the continuous operation of the project – Obligations of reasonable assistance – Obligation of good faith – Implied terms of law and fact – Implied obligation of mutual co-operation – Whether failure to grant additional tenure in breach of express or implied terms of project agreements Legislation: Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA) Mining Act 1978 (WA) Result: Appeal dismissed Cross-appeal dismissed Category: A Representation: Counsel: First Appellant : N C Hutley SC with J H Kirkwood SC, T Maxwell & S Hartford-Davis -- 2 of 168 -- [2026] WASCA 71 Page 3 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 M Karam, D Fawcett, K S Byrne & H Cooper Second Respondent : No appearance Third Respondent : J E Shaw SC Solicitors: First Appellant : Herbert Smith Freehills Second Appellant : Herbert Smith Freehills Third Appellant : Herbert Smith Freehills First Respondent : Robinson Nielsen Legal Second Respondent : No appearance Third Respondent : State Solicitor's Office Cases referred to in decision: Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 Binningup Nominees Pty Ltd v Mirvac (WA) Pty Ltd [2021] WASCA 130 Black Box Control Pty Ltd v TerraVision Pty Ltd [2016] WASCA 219 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; (1986) 160 CLR 226 Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78; (2010) 41 WAR 23 Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603 Godecke v Kirwan (1973) 129 CLR 629 -- 3 of 168 -- [2026] WASCA 71 Page 4 Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77; (2020) 55 WAR 435 James E McCabe Ltd v Scottish Courage Ltd [2006] EWHC 538 (Comm) Jenyns v Public Curator (Qld) [1953] HCA 2; (1953) 90 CLR 113 Life Insurance Company of Australia Ltd v Phillips [1925] HCA 18; (1925) 36 CLR 60 Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825; (2015) 329 ALR 1 Mineralogy Pty Ltd v Sino Iron Pty Ltd [2013] WASC 194 Mineralogy Pty Ltd v Sino Iron Pty Ltd [2017] FCAFC 55 Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 Mummery v Irvings Pty Ltd (1956) 96 CLR 99 Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 Paciocco v Australia and New Zealand Banking Group Ltd [2015] FCAFC 50; (2015) 236 FCR 199 Pilbara Iron Ore Pty Ltd v Ammon [2020] WASCA 92 QNI Resources Pty Ltd v North Queensland Pipeline No 1 Pty Ltd [2022] QCA 169; (2022) 11 QR 648 Secured Income Real Estate (Australia) Ltd v St Martin's Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596 Servcorp WA Pty Ltd v Perron Investments Pty Ltd [2016] WASCA 79; (2016) 50 WAR 226 Seven Network Limited v News Limited [2007] FCA 1062 Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80; (2019) 55 WAR 89 Sino Iron Pty Ltd v Mineralogy Pty Ltd [2022] WASC 151 Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56 Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 4] [2021] WASC 451 Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 6] [2021] WASC 475 Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd [2010] WASCA 222; (2010) 41 WAR 318 Trans Petroleum (Australia) Pty Ltd v White Gum Petroleum Pty Ltd [2012] WASCA 165; (2012) 268 FLR 433 -- 4 of 168 -- [2026] WASCA 71 Page 5 Table of Contents Introduction and overview .......................................................................................................... 7 Historical and contractual background ..................................................................................... 11 State Agreement ................................................................................................................... 14 MRSLAs ............................................................................................................................... 17 Takeover Agreements ........................................................................................................... 28 Direct Agreement ................................................................................................................. 29 Fortescue Coordination Deed ............................................................................................... 30 Dispute over Mine Continuation Proposals and Tenure....................................................... 32 2016 MCPs ....................................................................................................................... 33 2017 MCPs ....................................................................................................................... 37 2018 Formal Tenure Request ........................................................................................... 42 2018 Request to Submit Programme of Works ................................................................ 48 Further correspondence in 2018 ....................................................................................... 49 The CITIC parties commence the primary proceedings ................................................... 50 Amendments to the Additional Tenure Request .............................................................. 51 Relief claimed in the primary proceedings ............................................................................... 58 Primary reasons ........................................................................................................................ 61 Principal findings challenged in the appeal .......................................................................... 62 Primacy of the tenure requests ......................................................................................... 63 'No consideration' issue .................................................................................................... 63 Factual findings as to the additional tenure ...................................................................... 67 Other matters relevant to the requests for additional tenure ............................................. 72 Grounds of appeal..................................................................................................................... 80 Broad overview of conclusions ............................................................................................ 81 Primacy of the tenure requests ............................................................................................. 86 Contractual terms.................................................................................................................. 88 Preliminary observations .................................................................................................. 88 'Reasonably Required' – grounds 6 and 7 ......................................................................... 90 Legal principles – contractual construction ...................................................................... 97 Continuous operation of the Project – ground 14(a) ........................................................ 99 MRSLA Implied Necessary Tenure Term – ground 14(c) ............................................. 110 Good faith and mutual co-operation – grounds 14(d), (e) and (f) .................................. 118 Reasonable assistance – ground 14(b) ............................................................................ 144 Conclusion as to the claim to additional tenure.............................................................. 148 Remaining grounds of appeal ............................................................................................. 148 -- 5 of 168 -- [2026] WASCA 71 Page 6 Conclusion as to appeal ...................................................................................................... 149 Cross-appeal ........................................................................................................................... 149 Findings challenged in cross-appeal ................................................................................... 150 Grounds of cross-appeal ..................................................................................................... 151 Cross-appeal – ground 1 ................................................................................................. 152 Cross-appeal – grounds 2 and 3...................................................................................... 154 Conclusion as to cross-appeal ............................................................................................ 156 Conclusion and orders ............................................................................................................ 156 Schedule 1 – Table of Defined Terms .................................................................................... 157 Schedule 2 – Appellant's Further Amended Grounds of Appeal ........................................... 159 -- 6 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 7 JUDGMENT OF THE COURT: Introduction and overview 1 This appeal is the latest in a long line of disputes litigated in this Court between the appellants (CITIC Ltd and its subsidiaries, Sino Iron Pty Ltd and Korean Steel Pty Ltd)1 and the first and second respondents (Mineralogy Pty Ltd and its owner and chairperson, Mr Clive Palmer).2 2 Those disputes, which now span well over a decade and have produced dozens of published decisions (both at first instance and on appeal), are what Sackville J first described as 'mega-litigation', namely civil litigation that consumes many months of court time and generates vast quantities of documentation in paper and electronic form.3 3 In addition to the usual characteristics of mega-litigation, the litigation between the present parties has been, and continues to be, conducted without regard to its cost. The parties marshal large teams of solicitors and counsel and they each have a tendency to raise each and every issue that might be thought to be arguable.4 4 This Court is, of course, duty bound to determine any dispute properly brought before it; where jurisdiction exists, access to the courts is a right.5 Nevertheless, it must be acknowledged that the burden placed on the justice system by litigation such as this, and the cost to the community caused by the diversion of its limited resources to such disputes, is becoming, if it is not already, intolerable. There must be a better way. 5 The present proceedings are no exception. Leaving aside multiple interlocutory hearings (which produced no less than 16 interlocutory judgments), the trial in this matter was conducted before Kenneth Martin J over 33 days, in the course of which 1,762 exhibits were tendered and thousands of pages of transcript produced. His Honour's 1 The first appellant, Sino Iron Pty Ltd (Sino Iron), the second appellant, Korean Steel Pty Ltd (Korean Steel) and the third appellant, CITIC Ltd (CITIC) are referred to in these reasons, collectively, as the CITIC parties (including to refer to Korean Steel and Sino Iron as the parties to the various agreements with Mineralogy). Schedule 1 to these reasons contains a list of defined terms identifying the paragraph in which the term is defined. 2 The first respondent, Mineralogy Pty Ltd (Mineralogy) and the second respondent Clive Frederick Palmer (Mr Palmer) are referred to in these reasons, collectively, as the Mineralogy parties. 3 Seven Network Limited v News Limited [2007] FCA 1062 [2] (Sackville J). 4 Sino Iron Pty Ltd v Mineralogy Pty Ltd [2022] WASC 151 [41] (Quinlan CJ). 5 Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32; (1988) 165 CLR 197, 252 (Deane J); Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77; (2020) 55 WAR 435 [396] (Quinlan CJ). -- 7 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 8 reasons for decision, which (quite understandably) were many months in the making, run to 900 pages.6 6 The appeal before this Court was equally burdensome. The CITIC parties appealed on 18 grounds (one of which was withdrawn at the hearing), many of which contained multiple sub-grounds.7 Mineralogy cross-appealed on three grounds. There were 26 appeal books, containing a total of 9,660 pages.8 The hearing of the appeal was conducted over 7 days, substantially longer than the overwhelming majority of appeals heard by this Court. 7 Nevertheless, shorn of much of its labyrinthine complexity, in our view, the primary issue and the result in this case may be fairly summarised as follows. 8 Mineralogy, Sino Iron and Korean Steel are all, along with others, parties to the Iron Ore Processing (Mineralogy Pty Ltd) Agreement (State Agreement or Agreement), a State agreement ratified by the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA). The State Agreement provides for the development and exploitation of various mining tenements the subject of the Agreement, in accordance with proposals approved by the relevant Minister in the Government of Western Australia (approved proposals). Under the Agreement, proposals to the relevant Minister must be submitted by the Company (i.e. Mineralogy), either alone or with co-proponents. 9 Three of the mining leases subject to the State Agreement (M 08/123, M 08/124 and M 08/125) (Sino Iron leases) form part of what is defined in the State Agreement as the Sino Iron Project (Sino Iron Project or Project). As part of the Sino Iron Project, broadly speaking, Sino Iron and Korean Steel hold mining rights authorising the extraction of iron ore from the Sino Iron leases. Sino Iron and Korean Steel's rights in that regard are conferred, and regulated, by a number of agreements between them and Mineralogy, including, importantly, two Mining Right and Site Lease Agreements (MRSLAs).9 6 Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56 (Primary reasons). 7 See Further Amended Grounds of Appeal, amended by leave on 14 August 2024 (Grounds of appeal). The Grounds of appeal are reproduced in Schedule 2 to these reasons. Ground of appeal 4 was withdrawn at the hearing of the appeal (Appeal ts 31). 8 The consideration of which was not assisted by the fact that the exhibits reproduced in the appeal books were not collected either chronologically or in order of exhibit number. To say that the form in which the appeal books were arranged contributed to the burden of determining the appeal is an understatement. 9 The MRSLAs have been amended at different times. Unless otherwise indicated, references to the MRSLAs in these reasons are references to the Sino Iron Mining Right and Site Lease Agreement consolidated as at -- 8 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 9 10 The MRSLAs are two largely identical agreements entered into by Mineralogy with Sino Iron and Korean Steel respectively. The MRSLAs confer on Sino Iron and Korean Steel mining rights to the Sino Iron leases and grant a sublease over an area defined in the MRSLAs as the Site Lease Area (Site Lease Area). The Site Lease Area under the MRSLAs extends beyond the Sino Iron leases and includes areas for related activities, including tailings and waste storage, and port facilities. 11 There are a number of approved proposals in relation to the Sino Iron Project, approved on various dates between 2008 and 2010. Those approved proposals authorise Sino Iron and Korean Steel to produce some 27.6 million tonnes per annum (mtpa) of magnetite iron ore concentrate as part of the Sino Iron Project.10 12 At its most basic level, the primary proceedings concerned the CITIC parties' desire to expand their operations as part of the Sino Iron Project. In pursuit of these ends, the CITIC parties prepared a number of Mine Continuation Proposals for submission to the Minister under the State Agreement for approval under that Agreement, including two draft proposals dated December 2017 (2017 MCPs).11 13 The CITIC parties sought relief in the primary proceedings compelling Mineralogy to submit the 2017 MCPs to the Minister under the State Agreement. The CITIC parties also sought orders requiring that Mineralogy agree to expand the Site Lease Area in the MRSLAs to include additional areas sought by the CITIC parties for the purposes of the 2017 MCPs (additional tenure).12 In addition to the submission of the 2017 MCPs and the grant of the additional tenure, the CITIC parties sought a variety of other relief, including the submission, by Mineralogy, of a Programme of Works to the Department of Mines, Industry Regulation and Safety (Department of Mines), for certain investigative work within the Site Lease Area (Programme of Works). 8 January 2008 (Sino Iron MRSLA) (Ex 493, GAB Vol 6: p 1692) and the Korean Steel Mining Right and Site Lease Agreement consolidated as at 22 October 2008 (Korean Steel MRSLA) (Ex 594, GAB Vol 7: p 1871). 10 Primary reasons [243] - [245]. 11 The 2017 MCPs comprise the Sino Iron Project - Mine Continuation Proposal dated December 2017 (Sino Iron 2017 MCP) (Ex 1688, GAB Vol 10: p 2958) and Korean Steel Project - Mine Continuation Proposal dated December 2017 (Korean Steel 2017 MCP) (Ex 1689, GAB Vol 10: p 3010). 12 The CITIC parties' claims in relation to the additional tenure underwent some change throughout the course of the primary proceedings. Those changes are summarised at [150] - [167] below. As the case developed the CITIC parties alleged a number of distinct tenure requests. -- 9 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 10 14 The CITIC parties' claims to the relief sought in the primary proceedings were based on a number of causes of action, including breach of contract, unconscionable conduct under the general law, estoppel and unconscionable conduct under the Australian Consumer Law. 15 Save for certain relief in relation to the Programme of Works, the learned trial judge rejected all of the CITIC parties' claims, including the relief in relation to the 2017 MCPs and the grant of the additional tenure. Central to his Honour's rejection of those claims was the learned trial judge's conclusion that the CITIC parties had no entitlement, contractual or otherwise, to the grant of the additional tenure (which his Honour referred to as an entitlement for a grant 'for no payment'). Without the additional tenure, the learned trial judge concluded, there could be no entitlement to submission of the 2017 MCPs (which were dependent upon the additional tenure). 16 The CITIC parties now appeal to this Court, in relation to its claims relating to the 2017 MCPs and the grant of the additional tenure. On appeal, the CITIC parties confined that claim to the breach of contract claim. 17 For the reasons that follow the CITIC parties' appeal must be dismissed. 18 By way of the broadest summary, we agree with the learned trial judge that, without an entitlement to, and the grant of, the additional tenure Mineralogy was not obliged to submit the 2017 MCPs. The CITIC parties' entitlement to any relief in that regard required that it have an entitlement to the additional tenure. 19 There was no express term in any agreement relied upon by the CITIC parties to the effect that Mineralogy was obliged to grant any additional tenure to Sino Iron and Korean Steel. The closest that the contractual arrangements between the parties came to such a term was a recital in each of the MRSLAs (Recital E) to the effect that: 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) 20 The CITIC parties nevertheless maintained that Mineralogy's failure to agree to the requests for the additional tenure was in breach of a number of express and alleged implied contractual terms, variously -- 10 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 11 contained in the State Agreement, the MRSLAs and a number of other agreements. The terms relied upon by the CITIC parties included obligations to act in good faith and obligations of mutual co-operation. 21 None of the express or alleged implied terms relied upon by the CITIC parties entitled Sino Iron and Korean Steel to the grant of the additional tenure. To the extent that any obligation of good faith or mutual co-operation between the parties was capable of operating so as to require Mineralogy to consider a reasonable request from Sino Iron and Korean Steel for additional tenure, those obligations were not breached in the present case and, in any event, any good faith obligation to consider such a request could not, in the circumstances that prevailed in the present case, give rise to a positive obligation to grant the additional tenure. 22 Without a contractual entitlement to the grant of the additional tenure, the CITIC parties' claims in relation to the 2017 MCPs and other relief (save for that relating to the Programme of Works) must also fail. 23 The CITIC parties' appeal must be dismissed. 24 We would also dismiss Mineralogy's cross-appeal. That cross-appeal related to the learned trial judge's orders requiring Mineralogy to submit the Programme of Works to the Department of Mines. The learned trial judge did not err in concluding that Mineralogy was obliged, by the terms of the MRSLAs and related contractual provisions, to give Sino Iron and Korean Steel reasonable assistance in obtaining government approvals. 25 In setting out the reasons for these conclusions, we commence with some of the relevant background, including the relevant contractual arrangements between the parties. Historical and contractual background 26 As noted above, Mineralogy, Sino Iron and Korean Steel are all, along with others, parties to the State Agreement, originally dated 5 December 2001.13 Sino Iron and Korean Steel are two of six 'Co-proponents' under the State Agreement (Co-proponents). 13 The State Agreement has been amended at different times. Unless otherwise indicated, references to the State Agreement in these reasons are references to the State Agreement consolidated as at 14 November 2008 (Ex 616, GAB Vol 7: p 1991). -- 11 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 12 27 At the time of their entry into the State Agreement the Co-proponents, including Sino Iron and Korean Steel, were companies owned by Mineralogy, or related entities including Mr Palmer. Mineralogy had agreements with each of the Co-proponents, which conferred rights in relation to the tenements on the Co-proponents. 28 The projects contemplated by the Agreement include mining activity in relation to 13 existing mining leases (M 08/118 to M 08/130). The Sino Iron leases (M 08/123, M 08/124 and M 08/125) are a subset of the mining leases subject to the State Agreement, which are, in turn, a subset of the total area defined by the State Agreement as 'Area A'. 29 Accordingly, while the Sino Iron Project concerns the extraction of iron ore from the Sino Iron leases, the State Agreement also contemplates that it will govern future proposals in relation to other projects, including on the other mining leases referred to in the State Agreement (namely, M 08/118 to M 08/122 and M 08/126 to M 08/130). 30 Mining rights in relation to the Sino Iron leases are conferred on Sino Iron and Korean Steel by the MRSLAs. As stated above, the MRSLAs confer on Sino Iron and Korean Steel mining rights to the Sino Iron leases and grant a sublease over the Site Lease Area. 31 When the MRSLAs were first entered into, Sino Iron and Korean Steel were still companies related to Mineralogy. Sino Iron and Korean Steel were later acquired by CITIC, through an intermediary, pursuant to Takeover Agreements entered into in 2006 and 2007 respectively (Takeover Agreements).14 Indeed it was by acquisition of all of the shares in Sino Iron and Korean Steel, that CITIC effectively invested in, and acquired an interest in, the Sino Iron Project. In that regard, it is apparent that the MRSLAs were amended at the time of the Takeover Agreements, in contemplation of those takeovers. 32 Also prior to the Takeover Agreements, Mineralogy had entered into Deeds with Sino Iron and Korean Steel, known as the Facilities Deeds (Facilities Deeds).15 The Facilities Deeds relate to the 14 The Takeover Agreements comprise the Sino Iron Takeover Agreement dated 31 March 2006 (Sino Iron Takeover Agreement) (Ex 123, GAB Vol 5: p 1434) and the Korean Steel Takeover Agreement dated 1 November 2007 (Korean Steel Takeover Agreement) (Ex 419, GAB Vol 5: p 1526). 15 The Facilities Deeds have been amended at different times. Unless otherwise indicated, references to the Facilities Deeds in these reasons are references to the Sino Iron Facilities Deed consolidated as at 21 March 2006 (Sino Iron Facilities Deed) (Ex 105, GAB Vol 5: p 1340) and the Korean Steel Facilities Deed consolidated as at 21 March 2006 (Korean Steel Facilities Deed) (Ex 102, GAB Vol 5: p 1188). -- 12 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 13 construction and use of facilities on land defined in the Facilities Deeds as the Preston Area. The Preston Area is an area originally covered by exploration licence 08/636, and includes port terminal facilities that are part of the Sino Iron Project.16 That area, at least in part, is the subject of general purpose leases under the Mining Act 1978 (WA) (Mining Act), including G08/53, G08/54, G08/63 and G08/74. 33 At the time of the takeovers, CITIC established another subsidiary CITIC Pacific Mining Management Pty Ltd (CPMM). CPMM is responsible for the management and operation of the Sino Iron Project on behalf of Sino Iron and Korean Steel. 34 Following the takeovers, in addition to the continuation of the MRSLAs, the Facilities Deeds and the Takeover Agreements, the parties entered into a number of further agreements. 35 In early 2008, Mineralogy, Sino Iron, and the China Development Bank entered into an agreement referred to as the Direct Agreement (Direct Agreement),17 which made provision for aspects of the conduct of the Sino Iron Project. 36 By deed dated 22 October 2008, Mineralogy, Sino Iron, Korean Steel and CITIC entered into the Fortescue Coordination Deed (Fortescue Coordination Deed).18 The Fortescue Coordination Deed makes further provision in relation to the conduct of the Sino Iron Project. 37 The CITIC parties relied upon express and alleged implied terms of the State Agreement, the MRSLAs, the Takeover Agreements, the Direct Agreement and the Fortescue Coordination Deed, in support of their case that Mineralogy was in breach of contract in failing to grant the additional tenure and in failing to submit the 2017 MCPs. 38 It is necessary, then, to address in more detail the terms of each of those agreements. In doing so, we will endeavour to identify the various ways in which the agreements were relied upon in the CITIC parties' pleaded case in the primary proceedings, and on appeal, in relation to the 2017 MCPs and the additional tenure. In this latter respect, we have attempted to identify the substance of the pleaded case, rather than 16 The extent of exploration licence 08/636, and thus the Preston Area, was the subject of the Federal Court's decision in Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825; (2015) 329 ALR 1 (Mineralogy (No 6)) (see at [87] (Edelman J); Annexure 3). 17 Ex 491 (GAB Vol 13: p 4485). 18 Ex 596 (GAB Vol 7: p 1933). -- 13 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 14 rehearse in full the elaborate way in which it was pleaded (in which many paragraphs and definitions were nested within a series of other paragraphs and definitions).19 State Agreement 39 As noted above, the State Agreement contemplates development in an area defined in the State Agreement as 'Area A'. Clause 5B(1) of the State Agreement provides that Area A covers 'the areas of Fortescue and Cape Preston in the Pilbara region of [Western Australia] that [Mineralogy] believes will satisfy requirements for development in the short to medium term'. 40 Area A includes all of the tenure held from time to time by Mineralogy in the area coloured red in the following plan:20 19 Indeed, the Consolidated Further Re-Amended Statement of Claim dated 30 December 2021 (Statement of Claim) employs the intriguing, but sadly not uncommon, practice of defining terms in one paragraph, never to use those definitions in any other paragraph of the pleading. 20 Plan 3, as defined in the State Agreement. -- 14 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 15 41 Relevantly, Cape Preston is at the northern-most portion of the red coloured area. The 13 existing mining leases (M 08/118 to M 08/130), including the Sino Iron leases, can be seen in a diagonal from the northeast to the southwest in the centre of the red coloured area. 42 Clause 6(1) of the State Agreement provides that Mineralogy 'either alone or with a Co-proponent' shall submit detailed proposals to the Minister for a project or projects within the meaning of the Agreement. The State Agreement defined the 'Project Proponents' in relation to each Project to be Mineralogy and any Co-Proponent or Co-Proponents (Project Proponents). 43 Clause 6(2) prescribes the information required to be included in each project proposal, including as to 'the location, area, lay-out, design, quantities, materials and time programme for the commencement and completion of construction or the provision' of a variety of matters set out in cl 6(2)(q). 44 Clause 6(3) provides: (3) The proposals constituting a Project proposal may with the approval of the Minister or if so required by the Minister shall be submitted separately and in any order as to the matter or matters mentioned in one or more of paragraphs (a) to (q) of subclause (2). 45 Clause 7 of the State Agreement requires the Minister to consider each proposal submitted under cl 6 and, subject to certain provisos either: (a) approve of the proposal without qualification or reservation; or (b) defer consideration of or decision upon the same until such time as the Project Proponents submit a further proposal or proposals in respect of some other of the matters mentioned in subclause (2) of Clause 6 not covered by the said proposal; or (c) require as a condition precedent to the giving of his approval to the said proposal that the Project Proponents make such alteration thereto or comply with such conditions in respect thereto as he thinks reasonable 46 Clause 7(6) provides, under the heading 'Implementation of proposals': (6) In respect of each proposal hereunder the Project Proponents in relation thereto shall subject to and in accordance with the EP -- 15 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 16 Act and any approvals and licences required under that Act implement the approved proposals in respect of the Project in accordance with the terms thereof and subject to marketing arrangements and reasonable maintenance and operational shut down requirements the Project Proponents shall ensure continuous operation of the Project. 47 Clause 8 of the State Agreements provides, in relation to 'Additional proposals': (1) If Project Proponents at any time during the continuance of this Agreement desire to significantly modify expand or otherwise vary their activities carried on pursuant to this Agreement in relation to a Project beyond those activities specified in the approved proposals relating to that Project they shall give notice of such desire to the Minister and within 2 months thereafter shall submit to the Minister detailed proposals in respect of all matters covered by such notice and such of the other matters mentioned in paragraphs (a) to (q) of subclause (2) of Clause 6 as are applicable to the Project and as the Minister may require. (2) The provisions of Clause 6 and Clause 7 (other than subclauses (5)(a), (6) and (7)) shall mutatis mutandis apply to detailed proposals submitted pursuant to this Clause with the proviso that the Project Proponents may withdraw such proposals at any time before approval thereof or, where any decision of the Minister in respect thereof is referred to arbitration, within 3 months after the award by notice to the Minister that they shall not be proceeding with the same. The Project Proponents shall subject to and in accordance with the EP Act and any approvals and licences required under that Act implement approved proposals pursuant to this Clause in accordance with the terms thereof. 48 Clause 29 of the State Agreement required Mineralogy to provide certain warranties at the time of the submission of any proposals. Clause 29 provides: Where any proposals submitted under this Agreement provide for the provision by the Company to Project Proponents of any works plant or facilities or the use thereof or access to or use of any lands granted to the Company hereunder or existing mining leases or further mining leases, the Company shall warrant to the State at the time of submission of those proposals that agreement has been reached between the Company and the Project Proponents in relation thereto for the purpose of the implementation of those proposals by the Project Proponents. 49 The CITIC parties also pleaded that the State Agreement contained two implied terms, namely: -- 16 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 17 (a) that 'Mineralogy would act in good faith in the performance of the State Agreement and in the implementation of approved proposals thereunder' (State Agreement Implied Good Faith Term);21 and (b) that 'Mineralogy would co-operate and do all that was necessary on its part to enable Sino Iron and Korean Steel to have the benefits and perform the obligations conferred and imposed on them by the State Agreement and approved proposals thereunder' (State Agreement Implied Co-operation Term).22 50 The CITIC parties pleaded at trial, and maintain on appeal, that Mineralogy's failure to submit the 2017 MCPs was in breach of cl 7(6) of the State Agreement,23 and the State Agreement Implied Co-operation Term.24 51 The CITIC parties pleaded at trial, and maintain on appeal, that Mineralogy's failure to agree to the additional tenure requests was in breach of cl 7(6) and cl 8(2) of the State Agreement,25 the State Agreement Implied Good Faith Term26 and the State Agreement Implied Co-operation Term.27 MRSLAs 52 The MRSLAs are two largely identical agreements entered into by Mineralogy with Sino Iron and Korean Steel respectively. The recitals to the MRSLAs are in the following terms:28 RECITALS A. Mineralogy is the registered holder of the Mining Leases (defined below). 21 Statement of Claim [53]. While this description of the alleged implied term suffices for present purposes, the content of the pleaded implied term was considerably more elaborate. 22 Statement of Claim [54]. Again, while this description suffices for present purposes, the pleaded implied term went further. 23 Statement of Claim [23(e)], [36] - [37], [141(d)], [145], [166]; Ground of appeal 3(c)(i). 24 Statement of Claim [54], [142(b)], [146], [167]; Ground of appeal 3(c)(v). While the Statement of Claim also pleaded the State Agreement Implied Good Faith Term in this context, it was not relied upon in Ground of appeal 3(c). 25 Statement of Claim [23(e)], [36] - [37], [151(d)], [153], [168]; Ground of appeal 14(a). 26 Statement of Claim [53], [147], [147A], [147B], [150A], [152(a)], [154], [154A], [154B], [168], [169], [169C]; Ground of appeal 14(f). 27 Statement of Claim [54], [147], [147A], [147B], [150A], [152(b)], [154], [154A], [154B], [168], [169], [169C]; Ground of appeal 14(e). 28 The recital and clauses reproduced below are taken from Sino Iron MRSLA. The Korean Steel MRSLA is in the same terms, save that the references to 'Sino' are references to 'Korean'. -- 17 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 18 B. The Mining Leases contain deposits of Magnetite Ore. C. Mineralogy has agreed to grant to Sino a right to mine Magnetite Ore from a designated Mine Area within the Mining Leases, up to the Total Extraction Limit. D. Sino proposes to construct Processing Facilities for processing Magnetite Ore mined from the Mine Area into Iron Ore Concentrates, Pellets and HBI. Mineralogy has agreed to grant to Sino a Site Lease over a designated Site Lease Area within the Mining Leases, for the construction and operation of Sino's Processing Facilities. E. Mineralogy will also consider any further requests by Sino for other tenure Sino reasonably requires for the purposes of its project. (emphasis added) 53 The MRSLAs confer on each of Sino Iron and Korean Steel a mining right to the Sino Iron leases (Mining Right) and grant a sublease over the Site Lease Area. 54 The mining right in the MRSLAs is conferred by cl 3, which provides: 3. GRANT OF MINING RIGHT 3.1 Mine Area The Mine Area is all the area comprised in Mining Leases 08/123 to 08/125 inclusive, or as amended from time to time in accordance with this Agreement. 3.2 Grant of Mining Right Subject to this Agreement, Mineralogy hereby grants to Sino, in relation to the Mine Area, the following rights (collectively 'Sino's Mining Right'), namely the right: (a) to exclusively use and occupy the Mine Area for 24 months from the date hereof subject to the use of any other party to which Sino may consent, but only in accordance with the terms of this Agreement and for the purpose of exploring for and mining Magnetite Ore; (b) to carry out or participate in, establishing a Mine within the Mine Area for mining Magnetite Ore; (c) to carry out or participate in, Mining Operations, for mining and extracting Magnetite Ore from the Mine Area; -- 18 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 19 (d) to take a quantity of all Magnetite Ore mined from the Mine Area, up to the Annual Extraction Limit in any Operating Year, and up to the Total Extraction Limit over the Term of Sino's Mining Right, for processing through Sino's Processing Facilities into Products which shall never exceed a total of 12 million tonnes a year as provided in this Agreement. 3.3 Reservations, terms and restrictions Sino's Mining Right is granted subject to the reservations, terms, conditions and restrictions contained in: (a) this Agreement; (b) the State Agreement; (c) the Mining Leases; and (d) applicable Legal Requirements. 3.4 Duration of Sino's Mining Right Subject to any earlier termination of Sino's Mining Right under this Agreement, Sino's Mining Right will continue in force until such time as Sino has taken its Total Extraction Limit from the Mine Area. 55 The Site Lease Area under the MRSLAs extends beyond the Sino Iron leases and includes areas for related activities, including tailings and waste storage, and port facilities. 'Site Lease Area' is defined in cl 1.1 of the MRSLAs as follows: Site Lease Area means the area within the Tenements, described in Clause 4.1, or otherwise agreed in writing between Mineralogy and Sino. 56 Clause 4 of the MRSLAs, in turn, provides: 4. GRANT OF SITE LEASE 4.1 Site Lease Area The Site Lease Area comprises each of the areas outlined in red in the plan attached to this Agreement as Annexure 1, situated within the Mining Leases, General Purposes Leases, Mining Leases 08/264, 08/265 and 08/266 and Miscellaneous Licence 08/20 or as otherwise agreed in writing between Mineralogy and Sino. -- 19 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 20 4.2 Grant of Site Lease In consideration of the payment of $5000 from Sino to Mineralogy (the receipt of which is hereby acknowledged by Mineralogy), Mineralogy grants a sublease over the Site Lease Area (Site Lease), for the following purposes: (a) to construct and commission Sino's Processing Facilities including water desalination, upon the Site Lease Area; (b) to process Magnetite Ore taken by Sino from the Mine Area through Sino's Processing Facilities for the production of Iron Ore Concentrate and Pellets in accordance with the terms of this Agreement and the law of Western Australia; (c) to maintain, repair, replace, extend, modify, utilise and operate Sino's Processing Facilities; (d) for the above purposes, to enter upon the Site Lease Area and to exercise within the Site Lease Area all of the rights and interests of Mineralogy as the holder of the Mining Leases, General Purpose Leases, Mining Leases 08/264, 08/265 and 08/266 and Miscellaneous Licence 08/20 referred to in clause 2.1; and (e) subject to completion of the Korean Steel Takeover Agreement, to allow Korean Steel and any other company acquired pursuant to the China Project Option Agreement to occupy the Site Lease Area and to exercise the rights granted to Sino under this Agreement in respect of the Site Lease Area as if it were a party to this Agreement. 4.3 Reservations, terms and restrictions The Site Lease is granted subject to the reservations, terms, conditions and restrictions contained in: (a) this Agreement; (b) the State Agreement; (c) the Facilities Deed; (d) the Mining Leases; and (e) applicable Legal Requirements including Government Approvals. -- 20 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 21 4.4 Duration of Site Lease (a) Subject to any earlier termination of the Site Lease under this Agreement, the Site Lease will continue in force for the duration of Sino's Mining Right or any other Mining Right held by Korean Steel or a company acquired under the China Project Option Agreement, and thereafter for so long as is necessary to allow Sino, Korean or any such other company to complete processing of Magnetite Ore which has been taken by Sino from the Mine Area pursuant to the relevant Mining Right, provided that such additional period will not exceed 6 months unless otherwise agreed by Mineralogy. (b) Mineralogy may agree to extend the Site Lease on such terms as may be agreed. 4.5 Exclusive possession (a) Subject to this Agreement, Sino shall be entitled to exclusive occupation of the Site Lease Area. (b) Notwithstanding its right of exclusive possession, Sino will permit common carrier pipelines, roads and similar such facilities to deliver and transit over such Site Lease Area in accordance with approved Project Proposals under the State Agreement. 4.6 Condition of Site Lease Area (a) Sino will accept the Site Lease Area on an 'as is' basis. Mineralogy shall not be required to make any changes, alterations, additions, improvements or repairs in, on or about the Site Lease Area. (b) Mineralogy makes no covenants or warranties in relation to the condition of the Site Lease Area including the soil and subsoil, or as to the suitability of the Site Lease Area for Sino's Processing Facilities. 4.7 Ownership of Sino's Project Facilities As between Mineralogy and Sino, all of the Processing Facilities installed or constructed by Sino within the Site Lease Area will be and remain the sole property of Sino and Sino will be entitled, subject to Mineralogy's consent (which may not be unreasonably withheld) to remove any fixtures constructed on the Site Lease Area. -- 21 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 22 57 Annexure 1 to the MRSLAs, depicting the Site Lease Area in red is as follows:29 29 It should be noted that the actual alignment of the common use corridor (particularly to the west of the portion of the Site Lease Area forming part of G 08/53) is different to that depicted in the Site Lease Area in the MRSLAs. The different orientation can be seen in the first of two maps forming part of a General Arrangement Map Deed between Mineralogy, Sino Iron and Korean Steel dated 22 October 2008 (General Arrangement Map Deed) (Ex 595, GAB Vol 7: p 1929). The learned trial judge concluded that the General Arrangement Map Deed conferred upon Sino Iron and Korean Steel rights to a 'wedge' of G 08/53 between the Site Lease Area and the realigned common use corridor (Primary reasons [2254] - [2275]). There is no appeal from that finding and it is otherwise of no consequence for the purposes of the appeal. -- 22 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 23 58 A number of observations as to the Site Lease Area are appropriate at this point. As can be seen, the Site Lease Area is a subset of Area A under the State Agreement (depicted at [40] above). In particular, to the west of the north-south infrastructure corridor, the Site Lease Area includes the Sino Iron leases (M 08/123, M 08/124 and M 08/125) but not the other mining leases to the north and south of the Sino Iron leases (namely, M 08/118 to M 08/122 and M 08/126 to M 08/130). The Site Lease Area also includes the entirety of three miscellaneous licences (M 08/264, M 08/265, M 08/266), the entirety of general purpose lease G 08/54 and a portion of general lease G 08/53.30 59 It can also be seen in Annexure 1 to the MRSLAs, the Site Lease Area does not include the common use port, sub-station, fuel farm and infrastructure corridors, including the corridor between the Sino Iron leases and the port at Cape Preston. Those common use areas are depicted in grey and are the subject of cl 12 of the MRSLAs, which provides: 12. ACCESS LICENCE AND FURTHER RIGHTS 12.1 Access Licence (a) Mineralogy agrees to grant to Sino a non-exclusive right ('Access Licence') to enter upon and use specified access routes and areas within the Project Area ('Access Areas') for purposes necessary or incidental to the development and operation of Sino's Project, including for the purposes of: (i) having access to, from and within the Mine Area, the Site Lease Area and in between any of those areas; (ii) locating pipelines, crushing facilities, transmission lines, conveyors and other infrastructure; (iii) temporary storage of materials; (iv) any other matter, other than accommodation of Sino's workforce, incidental and ancillary to but necessary and convenient; and 30 The 'wedge' referred to in fn 29 created by the General Arrangement Map Deed forms part of general purpose lease G 08/53. -- 23 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 24 (v) access to the areas and facilities to be located in the areas coloured in solid grey on the plan attached to this Agreement as Annexure 1. (b) Mineralogy will use reasonable endeavours to make available areas reasonably requested by Sino. Mineralogy is not obliged to make available any area as an Access Area if to do so would breach Mineralogy's obligations to another party or if to do so would unreasonably interfere with another Project or other operations within Sino's Project Area. (c) Mineralogy may from time to time impose conditions upon Sino's access to or use of any Access Area. Sino will comply with such conditions at its cost. (d) Sino will be responsible for constructing all improvements upon the Access Areas as are necessary to enable Sino to use the Access Areas for the purposes for which they were made available to Sino. (e) Sino must comply with the terms of the Facilities Deed in relation to its facilities and improvements within the Access Areas. (f) Unless an Access Area that is intended to be used for vehicular access uses an existing road, Sino will be responsible for the constructing and maintaining all necessary roads within the Access Area and obtaining all necessary Government Approvals. Otherwise, Sino will be responsible for keeping Access Areas reasonably clear of vegetation and accessible for repairs and maintenance, where applicable, of infrastructure located thereupon. (g) Mineralogy may require Sino to change any Access Area if the existing Access Area would interfere with Mineralogy's and/or third party's ability to carry out mining and related activities within Sino's Project Area. (h) The Access Licence will commence on the date of this Agreement and will continue for the duration of the Site Lease, and thereafter for so long as Sino continues to have a requirement for the Access Licence in order to complete its obligations on the Mine Area and the Site Lease Area with regard to Remediation Work. (i) The Access Area shall be accessible by: -- 24 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 25 (i) Sino, Mineralogy, other Mining Right Holders and any third parties authorised or granted access rights over the same areas by Mineralogy; and (ii) by the public, if Mineralogy so decides or the parties are so required pursuant to the State Agreement. 60 In exchange for the mining rights under the MRSLAs, Sino Iron and Korean Steel are obliged, by cl 8, to pay royalties to Mineralogy, as defined in the MRSLAs to include 'Royalty Component A' and 'Royalty Component B'.31 61 Clause 15 of the MRSLAs (MRSLAs Express Government Approvals Terms) provides: 15. GOVERNMENT APPROVALS AND LEGAL REQUIREMENTS 15.1 Government Approvals (a) Sino will be responsible for obtaining all Government Approvals required to implement Sino's Project and to carry out Sino's Activities, including approvals from the Minister of proposals for Sino's Project submitted under the State Agreement or any Act. (b) Sino must comply strictly with the terms and conditions of all Government Approvals. (c) Mineralogy will, at Sino's cost, give Sino assistance in obtaining Government Approvals under this clause. 62 Sino's Project is defined in the Schedule as: The mining and extraction of Magnetite Ore from the Mine Operations Area and the processing of that Magnetite Ore, through Sino's Processing Facilities within the Site Lease Area, into Products as provided in this Agreement. 63 Clause 37 of the MRSLAs provides: 31 The CITIC parties' liability to pay Royalty Component A and Royalty Component B were the subject of significant litigation in this Court. The liability of Sino Iron and Korean Steel to pay Royalty Component A was the subject of this Court's decision in Mineralogy Pty Ltd v Sino Iron Pty Ltd [2013] WASC 194. The liability to pay Royalty Component B was the subject of Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340 and Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80; (2019) 55 WAR 89. Mineralogy was substantially successful in those particular disputes. -- 25 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 26 37. NATURE OF RELATIONSHIP 37.1 Several Liability The obligations of the Mine Participants in relation to Mining Operations, to each other and to third parties will be several in proportion to their respective shares under this Agreement, and will not be joint or joint and several. 37.2 No Partnership Nothing in this Agreement will make a Mine Participant the partner of any other Participant nor constitute any Mine Participant the agent or legal representative of any other or create any fiduciary relationship between them. 37.3 No authority to act on behalf of another Participant No Participant will have any authority to act on behalf of any other Participant, except as expressly provided in this Agreement. Where a Mine Participant acts on behalf of any other without authority, such Participant will indemnify the other from any losses, claims, damages and liabilities arising out of any such act. 37.4 Good faith Mineralogy and each Mine Participant will act in good faith towards one another in relation to the performance of this Agreement. 37.5 No restriction on other business This Agreement does not restrict in any way the freedom of a Mine Participant to conduct as it sees fit any business or activity outside the scope of the Mining Operations, without any accountability to the other Mine Participants. 64 In addition to these express terms, the CITIC parties pleaded that the MRSLAs contained a number of implied terms. 65 First, the CITIC parties pleaded that the MRSLAs contained an implied term requiring Mineralogy to grant additional tenure in certain circumstances (MRSLA Implied Necessary Tenure Term), as follows:32 There are, and were at all relevant times, terms of each of the Sino Iron MRSLA and the Korean Steel MRSLA that Mineralogy would: 32 Statement of Claim [52]. -- 26 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 27 (a) not unreasonably withhold its agreement to grant access to, and/or use of, such tenure within the Mineralogy Tenements as Sino Iron and/or Korean Steel reasonably require from time to time for the purposes of the Sino Iron Project; and (b) not unreasonably refuse to take steps reasonably required by Sino Iron and/or Korean Steel from time to time to enable them to exercise rights to access, and/or use, tenure within the Mineralogy Tenements for the purposes of the Sino Iron Project. 66 Secondly, the CITIC parties pleaded that the MRSLAs contained implied terms of good faith and mutual co-operation, namely: (a) that 'Mineralogy would act in good faith in the performance of the MRSLAs and such other agreements relating to the Sino Iron Project as existed, and as were amended from time to time' (MRSLA Implied Good Faith Term);33 and (b) that 'Mineralogy would co-operate and do all that was necessary on its part to enable Sino Iron and Korean Steel to have the benefits and perform the obligations conferred and imposed on them by the MRSLAs' (MRSLA Implied Co-operation Term).34 67 The CITIC parties pleaded at trial, and maintain on appeal, that Mineralogy's failure to submit the 2017 MCPs was in breach of cl 15.1 of the MRSLAs35 and the MRSLA Implied Co-operation Term.36 68 The CITIC parties pleaded at trial, and maintain on appeal, that Mineralogy's failure to agree to the additional tenure requests was in breach of cl 37.4 of the MRSLAs,37 the MRSLA Implied Necessary 33 Statement of Claim [49]. This description suffices for present purposes. The full content of the MRSLA Implied Good Faith Term was pleaded in similar terms to the State Agreement Implied Good Faith Term. 34 Statement of Claim [50]. Again, while this description suffices for present purposes, the pleaded implied term went further, in similar terms to the State Agreement Implied Co-operation Term. 35 Statement of Claim [47], [141(a)], [145], [166]; Ground of appeal 3(c)(iii). 36 Statement of Claim [50], [142(b)], [146], [167]; Ground of appeal 3(c)(v). While the Statement of Claim also pleaded the MRSLA Implied Good Faith Term in this context, it was not relied upon in Ground of appeal 3(c). 37 Statement of Claim [48], [147], [147A], [147B], [150A], [152(a)], [154], [169], [169C]; Ground of appeal 14(d). -- 27 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 28 Tenure Term,38 the MRSLA Implied Good Faith Term39 and the MRSLA Implied Co-operation Term.40 Takeover Agreements 69 The Takeover Agreements provide for the acquisition, through an intermediary company, by CITIC of all of the shares in Sino Iron and Korean Steel from Mineralogy and related entities. Pursuant to the Sino Iron Takeover Agreement, all of the shares in Sino Iron were purchased for $US215,000,000 and, pursuant to the Korean Steel Takeover Agreement, all of the shares in Korean Steel were purchased for $US200,000,000. 70 In addition to providing for the sale and purchase of the shares in Sino Iron and Korean Steel, the Takeover Agreements contain covenants in relation to the 'Project'. 71 The 'Project' is defined in each of the Takeover Agreements as:41 Project means the development of a mine or mines to mine Magnetite Ore in Area A, and the establishment of or obtaining access to, and operation of, further processing and related infrastructure needed to process Magnetite Ore into concentrate, pellets or HBI, by the Company. 72 In that context, each of the Takeover Agreements also recognises and makes provision in relation to defined 'Project Agreements', which relevantly include, inter alia, the MRSLAs and the Facilities Deeds.42 73 The Takeover Agreements, in turn, include the following relevantly identical covenant (Takeover Agreements Assistance Terms):43 Mineralogy shall provide such reasonable assistance as CITIC or the Company reasonably request, and at CITIC's cost, to progress development of the Project. This assistance may include: 38 Statement of Claim [52], [147], [147A], [147B], [150A], [151(a)], [153], [154A], [154B], [168], [169], [169C]; Ground of appeal 14(c). 39 Statement of Claim [49], [147], [147A], [147B], [150A], [152(a)], [154], [154A], [154B], [168], [169], [169C]; Ground of appeal 14(f). 40 Statement of Claim [50], [147], [147A], [147B], [150A], [152(b)], [154], [154A], [154B], [168], [169], [169C]; Ground of appeal 14(e). 41 Sino Iron Takeover Agreement, cl 19.1; Korean Steel Takeover Agreement, cl 19.1. 42 Sino Iron Takeover Agreement, cl 19.1; Korean Steel Takeover Agreement, cl 19.1. 43 Korean Steel Takeover Agreement, cl 7.3(e). The equivalent clause in the Sino Iron Takeover Agreement (cl 7.3(i)) is identical, save that it refers to Mineralogy as 'the Company'. -- 28 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 29 (i) making available information about the Project as developed by Mineralogy, any studies or plans prepared approvals which have been obtained; and (ii) providing employees of Mineralogy or other companies controlled by Mineralogy, on secondment to the Company on terms agreed between Mineralogy and the Company. 74 The CITIC parties also pleaded that the Takeover Agreements contained two implied terms, namely: (a) that 'Mineralogy would act in good faith in the performance of each of the Takeover Agreements' (Takeover Agreements Implied Good Faith Term);44 and (b) that 'Mineralogy would co-operate and do all that was necessary on its part to enable Sino Iron, Korean Steel and CITIC to have the benefits and perform the obligations conferred and imposed on them by the Takeover Agreements' (Takeover Agreements Implied Co-operation Term).45 75 The CITIC parties pleaded at trial, and maintain on appeal, that Mineralogy's failure to submit the 2017 MCPs was in breach of the Takeover Agreements Assistance Terms46 and the Takeover Agreements Implied Co-operation Term.47 76 The CITIC parties pleaded at trial, and maintain on appeal, that Mineralogy's failure to agree to the additional tenure requests was in breach of the Takeover Agreements Assistance Terms,48 the Takeover Agreements Implied Good Faith Term49 and the Takeover Agreements Implied Co-operation Term.50 Direct Agreement 77 The Direct Agreement, between Mineralogy, Sino Iron, and the China Development Bank, concerns the interests of the China 44 Statement of Claim [56]. Again, the content of the pleaded implied term was considerably more elaborate. 45 Statement of Claim [57]. Again, the pleaded implied term went further. 46 Statement of Claim [55], [141(b)], [145], [166]; Ground of appeal 3(c)(iv). 47 Statement of Claim [57], [142(b)], [146], [167]; Ground of appeal 3(c)(v). While the Statement of Claim also pleaded the Takeover Agreements Implied Good Faith Term in this context, it was not relied upon in Ground of appeal 3(c). 48 Statement of Claim [55], [147], [147A], [147B], [150A], [151(c)], [153], [169], [169C]; Ground of appeal 14(b). 49 Statement of Claim [56], [147], [147A], [147B], [150A], [152(a)], [154], [154A], [154B], [168], [169], [169C]; Ground of appeal 14(f). 50 Statement of Claim [57], [147], [147A], [147B], [150A], [152(b)], [154], [154A], [154B], [168], [169], [169C]; Ground of appeal 14(e). -- 29 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 30 Development Bank, as agent of financiers of the Sino Iron Project, including step-in rights of the Bank in the event of default. 78 In addition to the express terms of the Direct Agreement, the CITIC parties pleaded that the Direct Agreement contained two implied terms, namely: (a) that 'Mineralogy would act in good faith in the performance of the Direct Agreement' (Direct Agreement Implied Good Faith Term);51 and (b) that 'Mineralogy would co-operate and do all that was necessary on its part to enable Sino Iron to have the benefits and perform the obligations conferred and imposed on them by the Direct Agreement' (Direct Agreement Implied Co-operation Term).52 79 At trial, the CITIC parties relied upon an express term of the Direct Agreement in support of their case that Mineralogy was in breach of contract in failing to grant the additional tenure and in failing to submit the 2017 MCPs.53 The grounds of appeal do not rely upon a breach of any express terms of the Direct Agreement. 80 At trial, and on appeal, the CITIC parties pleaded that Mineralogy's failure to submit the 2017 MCPs was in breach of the Direct Agreement Implied Co-operation Term.54 81 The CITIC parties pleaded at trial, and maintain on appeal, that Mineralogy's failure to agree to the additional tenure requests was in breach of the Takeover Agreements Implied Good Faith Term55 and the Takeover Agreements Implied Co-operation Term.56 Fortescue Coordination Deed 82 The Fortescue Coordination Deed, between Mineralogy, Sino Iron, Korean Steel and CITIC, was entered into to confirm the manner in 51 Statement of Claim [60]. Again, the content of the pleaded implied term was more elaborate. 52 Statement of Claim [61]. Again, the pleaded implied term went further. 53 Being cl 3.4.3: Statement of Claim [58]. 54 Statement of Claim [61], [142(b)], [146], [167]; Ground of appeal 3(c)(v). While the Statement of Claim also pleaded the Direct Agreement Implied Good Faith Term in this context, it was not relied upon in Ground of appeal 3(c). 55 Statement of Claim [60], [147], [147A], [147B], [150A], [152(a)], [154], [154A], [154B], [168], [169], [169C]; Ground of appeal 14(f). 56 Statement of Claim [61], [147], [147A], [147B], [150A], [152(b)], [154], [154A], [154B], [168], [169], [169C]; Ground of appeal 14(e). -- 30 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 31 which Sino Iron and Korean Steel would carry out and coordinate their respective activities under the Sino Iron Project. 83 Clause 4.1 of the Fortescue Coordination Deed made the following provision in relation to proposals under the State Agreement: 4.1 Proposals under State Agreement (a) Each of Sino Iron and Korean are responsible for complying with proposals which are submitted and approved under the State Agreement, regardless of whoever is the Co-Proponent (as that term is defined in the State Agreement). (b) Each Sino Iron and/or Korean will, in relation to the Project, prepare further proposals for submission to the Minister under Clause 6 of the State Agreement as required to further progress and implement the Project. All proposals for submission under the State Agreement will be prepared by Sino Iron and/or Korean and will be subject to the approval of Mineralogy (which shall not be unreasonably withheld). In accordance with the terms of the State Agreement, proposals to be submitted under the State Agreement will be submitted jointly by Mineralogy and Sino Iron and/or Korean. 84 The CITIC parties also pleaded that the Fortescue Coordination Deed contained two implied terms, namely: (a) that 'Mineralogy would act in good faith in the performance of' the Fortescue Coordination Deed (FCD Implied Good Faith Term);57 and (b) that 'Mineralogy would co-operate and do all that was necessary on its part to enable Sino Iron, Korean Steel and CITIC to have the benefits and perform the obligations conferred and imposed on them by' the Fortescue Coordination Deed (FCD Implied Co-operation Term).58 85 While, at trial, the CITIC parties relied upon cl 4.1 of the Fortescue Coordination Deed, the grounds of appeal do not repeat that reliance. 57 Statement of Claim [45]. Once again, the content of the pleaded implied term was more elaborate. 58 Statement of Claim [46]. Again, the pleaded implied term went further. -- 31 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 32 86 However, both at trial, and on appeal, the CITIC parties pleaded that Mineralogy's failure to submit the 2017 MCPs was in breach of the FCD Implied Co-operation Term.59 87 The CITIC parties pleaded at trial, and maintain on appeal, that Mineralogy's failure to agree to the additional tenure requests was in breach of the FCD Implied Good Faith Term60 and the FCD Implied Co-operation Term.61 Dispute over Mine Continuation Proposals and Tenure 88 We turn now to the dispute giving rise to the primary proceedings. 89 As we observed at the commencement of these reasons, there are a number of approved proposals in relation to the Sino Iron Project, approved under the State Agreement on various dates between 2008 and 2010. Those approved proposals include:62 (a) a Sino Iron Pellet Proposal, approved on 2 May 2008; (b) a Sino Iron Concentrate Proposal approved on 22 June 2009; (c) a Korean Steel Concentrate Proposal approved on 11 June 2009; (d) a Second Sino Iron Concentrate Proposal approved on 6 January 2010; and (e) a Second Korean Steel Concentrate Proposal approved on 6 January 2010. 90 As the learned trial judge found, these approved proposals, taken together, envisaged and permitted a combined production of 27.6 mtpa of magnetite iron ore concentrate by Sino Iron and Korean Steel as part of the Sino Iron Project.63 59 Statement of Claim [46], [142(b)], [146], [167]; Ground of appeal 3(c)(v). While the Statement of Claim also pleaded the FCD Implied Good Faith Term in this context, it was not relied upon in Ground of appeal 3(c). 60 Statement of Claim [45], [147], [147A], [147B], [150A], [152(a)], [154], [154A], [154B], [169], [168], [169C]; Ground of appeal 14(f). 61 Statement of Claim [46], [147], [147A], [147B], [150A], [152(b)], [154], [154A], [154B], [168], [169], [169C]; Ground of appeal 14(e). 62 Primary reasons [243]. 63 Primary reasons [245]. -- 32 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 33 2016 MCPs 91 The genesis of the dispute in the primary proceedings was the CITIC parties' desire to expand their operations by means of additional approved proposals. 92 In 2016, the CITIC parties developed draft proposals for that purpose, which included proposed activities on a 'footprint' that extended beyond the existing approved proposals and beyond the Site Lease Area in the MRSLAs. 93 For example, an internal presentation prepared by CPMM in October 2016 identifying proposed options referred to the fact that Mineralogy held tenure over areas not included in the Site Lease Area (including general purposes leases G08/63 and G08/74).64 That presentation included the following: Land use tenure required additional waste rock landforms and TSF associated with Mining. Mineralogy issue as tenement holder. 94 CPMM also liaised with the Department of State Development in relation to its future development of the Sino Iron Project. 95 In that regard, by letter dated 14 November 2016, the Deputy Director General of the Department of State Development advised CPMM (on behalf of the CITIC parties), in relation to a meeting on 2 November 2016:65 During the meeting CITIC presented a conceptual map that identified land outside its currently approved footprint within Area A where it wishes to locate expanded Tailings Storage Facilities (TSF) and Waste Rock Facilities. … In respect to the land requirements outside the currently approved footprint as identified in the Mineralogy Expansion Proposal (MEP) areas CITIC will be required to: • Obtain agreement with Mineralogy Pty Ltd as the underlying tenure holder; … … 64 Exhibit 1960 (GAB Vol 10: p 3132). 65 Exhibit 1959 (GAB Vol 10: p 3119). -- 33 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 34 I would like to stress that the Minister responsible for the Agreement can only consider proposals where the underlying tenure has been secured. … With regard to the Agreement submission process, clause 8(1) 'Additional proposals' is applicable and again, submissions made to the Minister for consideration would need to be jointly submitted by the applicable Project Proponents. 96 Following this, the CITIC parties engaged with Mineralogy in relation to the additional proposals it had prepared. 97 In that regard, by letter dated 9 December 2016, CPMM (on behalf of Sino Iron and Korean Steel) wrote to Mineralogy requesting that it submit two additional proposals to the Minister under cl 8 of the State Agreement.66 The two proposals, which related to the mining rights of Sino Iron and Korean Steel respectively (2016 MCPs)67 were broadly described by CPMM as follows:68 The key changes proposed by the Mine Continuation Proposals are to: (a) increase: (i) the mine pit area and volume; (ii) the tailings storage facility capacity; (iii) the waste rock dump capacity; (iv) the port stockyard capacity; and (b) allow for the development of two new infrastructure corridors; (c) allow the location of the port construction village site to be used for a permanent accommodation village; and (d) allow for the relocation of the Fortescue River mouth access road. The Mine Continuation Proposals will not increase the mining, processing or tailings production rates of the Project. 98 It is not necessary to refer to the content of the 2016 MCPs in detail, as they were ultimately superseded by the 2017 MCPs. 66 Primary reasons [269]; Ex 1379 (GAB Vol 9: p 2753). 67 Ex 1380 (GAB Vol 9: p 2755) and Ex 1381 (GAB Vol 9: p 2773). 68 Primary reasons [269]; Ex 1379 (GAB Vol 9: p 2753). -- 34 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 35 99 The correspondence between the parties in relation to the 2016 MCPs, however, provides important context for understanding the claim, in the primary proceedings, to the additional tenure. 100 In that regard it is apparent from the 2016 MCPs, which included a conceptual layout of the development envelope proposed by those proposals,69 that (consistent with correspondence from the Department of State Development referred to at [95] above) the development envelope extended into parts of Area A under the State Agreement that were beyond the Site Lease Area in the MRSLAs. 101 Despite that correspondence from the Department of State Development, neither the letter from CPMM, nor the 2016 MCPs, expressly acknowledged that the proposed development envelope extended beyond the Site Lease Area. Mineralogy, nevertheless, recognised that to be the case. In its response by letter dated 23 December 2016, Mineralogy stated, inter alia:70 I refer to the above. Mineralogy Pty Ltd (Mineralogy) has entered into commercial arrangements with other companies in respect of the land that your purported proposals relate to. We would refer you to clause 12.1(b) of the Mining Right and Site Lease Agreements (MRSLAs). Consequently, no land the subject of your correspondence and attachments will be made available to Sino Iron Pty Ltd (Sino) or Korean Steel Pty Ltd (Korean). No commercial agreement has been entered into or discussed with Mineralogy in respect of such areas. Commercial terms and conditions must be agreed between the parties prior to any involvement with the State Government as the State Government will not interfere with the commercial negotiation between the parties. … We remind you the title to the lease area your companies seek is owned by Mineralogy and protected by the State Agreement. If you want to move this matter forward Mineralogy is happy to enter into commercial discussions with your companies or to receive proposals on the commercial consideration you attend [sic] to pay Mineralogy or others for their rights. However until such time as your companies can comply with the terms of the existing MRSLAs and settle all litigation the attractiveness of Mineralogy dealing with your company is limited. 69 Ex 1382 (GAB Vol 9: p 2791). The conceptual layout in the 2016 MCPs was the same as that for the 2017 MCPs (reproduced at [110] below), save that the size of the additional development at Port Preston depicted in the 2017 MCPs was reduced. 70 Ex 1387 (GAB Vol 9: p 2792 - 2793). -- 35 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 36 102 The correspondence between the parties continued throughout 2017. Included in that correspondence were statements by Mineralogy to the effect that consideration of any proposal was subject to the proponents having proper tenure. On 9 June 2017, for example, Mineralogy wrote to CPMM stating, inter alia:71 Notwithstanding the above, any proponent of a proposal must have proper tenure to land to be considered. Mineralogy has not received any commercial proposal from any CITIC Company to acquire rights to use or occupy any Land or leases owned by Mineralogy. 103 In its response to this correspondence CPMM did not address, or indeed acknowledge, Mineralogy's position that it was necessary for the parties to enter into commercial discussion in relation to additional tenure. CPMM's letter of 30 June 2017, for example, was silent on the matter of tenure and simply advised that Mineralogy was obliged to submit the 2016 MCPs.72 104 Similarly, on 10 July 2017, the solicitors for the CITIC parties wrote to Mineralogy a letter of demand, requiring Mineralogy to submit the 2016 MCPs.73 Mineralogy's response, by letter dated 17 July 2017, included the following:74 No Tenure The fact of the matter is that your client's expansion proposals are sought to be carried out on land they do not own or have any tenure. We have noted that your clients have not commenced any negotiations to acquire tenure. Your client must have tenure for land upon which it seeks an approval or seeks that our client be a proponent of any proposal. 105 The response from the CITIC parties' solicitors, dated 31 July 2017, did not directly address Mineralogy's position in relation to tenure. It said:75 We note that in the time since our letter of 10 July, Mineralogy has not approved our clients' Mine Continuation Proposals, which were provided to your client on 9 December 2016. Our clients do not consider that there is utility in engaging in further correspondence in relation to the matters raised in your letter of 17 July. Our clients 71 Ex 1478 (GAB Vol 9: p 2825). Similar statements in relation to 'additional land and tenure' appear in a subsequent letter from Mineralogy to CPMM dated 21 June 2017 (Ex 1480; GAB Vol 9: p 2827). 72 Ex 1483 (GAB Vol 9: p 2830). 73 Ex 1487 (GAB Vol 21: p 7349). 74 Ex 1492 (GAB Vol 21: p 7354). 75 Ex 1503 (GAB Vol 21: p 7358). -- 36 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 37 disagree with the contents of that letter and note that the letter fails to address the various breaches of the Project Agreements or contraventions of law asserted in our letter of 10 July. 106 Thereafter, the parties reached a stalemate for a period of time in relation to the 2016 MCPs. In other correspondence in late 2017, Mineralogy and the CITIC parties traded allegations and counter-allegations that each was in breach of the MRSLAs and the State Agreement, in relation to the 2016 MCPs and other matters.76 107 It should be noted that during this entire period Mineralogy and the CITIC parties remained in a substantial dispute in relation to the CITIC parties' liability to pay Royalty Component B under the MRSLAs. On 24 November 2017, Kenneth Martin J delivered judgment in those proceedings in Mineralogy's favour.77 2017 MCPs 108 Ultimately, by letter dated 18 December 2017, CPMM (on behalf of Sino Iron and Korean Steel) provided Mineralogy with revised draft proposals, being the 2017 MCPs, requesting Mineralogy to submit those proposals to the Minister under the State Agreement.78 109 A useful summary of the developments proposed by the 2017 MCPs can be found in Appendix B of each of the 2017 MCPs:79 [T]his Proposal is seeking approval for the extension or alteration of Project infrastructure within Area A, including as follows: • extension of the mine pit to the west within existing mining leases M08/123, M08/124 and M08/125; • increase to tailings capacity within mining leases M08/264, M08/265 and M08/266 (current location of approved Stages 1 and 2 TSF) and onto additional tenements within Area A including G08/53, G08/63 and G08/74; • increase to waste storage capacity within mining leases M08/266, M08/123, M08/124 and M08/125 (approved waste 76 See Ex 1537 (GAB Vol 21: p 7365); Ex 1539 (GAB Vol 21: p 7366); Ex 1543 (GAB Vol 21: p 7368); Ex 1544 (GAB Vol 21: p 7370); Ex 1545 (GAB Vol 21: p 7371). 77 Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340. There was no challenge to CITIC's obligation to pay Royalty Component B in the subsequent appeal, the decision in relation to which was delivered on 21 May 2019: Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80; (2019) 55 WAR 89. 78 Ex 1687 (GAB Vol 9: p 2956). 79 This extract is taken from the Sino Iron 2017 MCP (Ex 1688, GAB Vol 10: p 2958). The equivalent part of the Korean Steel 2017 MCP is relevantly identical (Ex 1689, GAB Vol 10: p 3010). -- 37 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 38 rock landforms) and onto additional tenements within Area A including general purpose leases G08/54 and G08/63; • increase to capacity of existing stockpiles and associated infrastructure at the Terminal situated within general purpose lease G08/52; • construction of two new infrastructure corridors: O one of which will extend from the north‐south road across general purpose lease G08/53 and G08/74 to the airstrip (located outside of Area A), for the purposes of providing transport and potentially power and water supply infrastructure to the airstrip; and O the other of which will extend from mining lease M08/123 and/or M08/124 across general purpose lease G08/63 (broadly adjacent to miscellaneous licence L08/20), to connect existing power and water supply facilities authorised by the Approved Proposals to facilities outside of Area A; • the use of the Port Construction Village (described within the Approved Proposals and approved within general purpose lease G08/53) as a permanent accommodation village; and • relocation of the existing FRR to allow continued and safe public access to the Fortescue River mouth. This Proposal does not seek to alter the mining, processing and tailings production rates detailed within the Approved Proposals. This Proposal is limited to addressing the constraints which are contained in the existing Approved Proposals as a result of those proposals being prepared on the limited basis of a five year mine plan. The object of this Proposal is to ensure continuous operation of the same Project. 110 The development envelope contemplated by the 2017 MCPs was depicted in the following plan included in each of the 2017 MCPs:80 80 See Ex 1688 (GAB Vol 10: p 2989); Ex 1689 (GAB Vol 10: p 3041). -- 38 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 39 111 It will be apparent that the development envelope contemplated by the 2017 MCPs (i.e. the areas principally coloured light blue) extend beyond the Site Lease Area in the MRSLAs (see [57] above) in a number of respects. Those areas included: -- 39 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 40 (a) the new Tailings Storage Facility (TSF) and Waste Rock Dump (WRD) on general purpose lease G08/63, to the east of mining leases M08/124 and M08/125 and to the south of general purpose lease G08/54;81 (b) the 'crescent-shaped area' on general purpose lease G08/74 to the east of general purpose lease G08/53, and mining lease M08/265, also forming part of a New TSF;82 (c) the expanded area at the port on general purpose lease G08/52;83 (d) the two new infrastructure corridors depicted in a generally east-west direction:84 (i) to the north of the New TSF extending in general purpose lease G08/74; (ii) from mining lease M08/123 along the part of general purpose lease G08/74; (e) the area (depicted in green) as the 'Approved Construction Camp for Operations';85 (f) the relocation of the Fortescue River Road, which was proposed to be relocated to the southern boundary of mining lease M08/123 and general purpose lease G08/63;86 and (g) a number of crossovers on the north-south infrastructure corridor between the Sino Iron leases and general purposes leases G08/54 and G08/63. 112 Each of these additional areas had also been identified as part of the development envelope in the 2016 MCPs. Notwithstanding their inclusion in the 2017 MCPs, CPMM's letter of 18 December 2017 did not address, or even refer to, Mineralogy's issue with the fact that the CITIC parties did not have tenure in relation to the additional areas. Nor did the 2017 MCPs themselves refer to that issue. 81 Referred to in the second and third dot points in the extract at [109] above. 82 Referred to in the second dot point in the extract at [109] above. 83 Referred to in the fourth dot point in the extract at [109] above. 84 Referred to in the fifth dot point in the extract at [109] above. 85 Referred to in the sixth dot point in the extract at [109] above. 86 Referred to in the seventh dot point in the extract at [109] above (see also description of proposed relocation at Ex 1688 (GAB Vol 10: p 2982); Ex 1689 (GAB Vol 10: p 3034). -- 40 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 41 113 By letter dated 21 December 2017, the Director General of the Department of Jobs, Tourism, Science and Innovation advised Mineralogy that the 2017 MCPs were in a form that they could, if submitted, be considered by the Minister for State Development. The letter requested that Mineralogy consider submitting the 2017 MCPs.87 114 By letter of the same date (21 December 2017) Mineralogy responded to CPMM's letter enclosing the 2017 MCPs. Mineralogy referred to the land the subject of the proposal. The letter commenced:88 I refer to your letter of 18 December 2017 which should have been sent to Mr Wolf. There is no commercial agreement between Mineralogy and Citic companies in respect of any of the land or resources contained in your proposal. There must be if you wish these matters to progress. 115 The letter went on to raise issues in relation to the alleged non-payment of royalties and failure to make payment to a Site Remediation Fund. The letter continued:89 In any event, Mineralogy's position is that you and your team continue to be untruthful in the representations Citic makes to the Government and others to seek commercial advantage while defaulting in paying Australian Companies to whom Citic Parties owe money. No proposals can be submitted under the State Agreement for development on Mineralogy Mining Leases without Mineralogy's agreement and Mineralogy does not agree at this time to any submission. 116 The solicitors for the CITIC parties responded to Mineralogy by letter dated 10 January 2018. The letter principally addressed Mineralogy's contentions in relation to the Site Remediation Fund, but also referred to the submission of the 2017 MCPs as an 'important initial step'. The letter did not address Mineralogy's reference to the need for the parties to reach agreement in relation to the land or resources contained in the proposals. It did, however, state that the CITIC parties were prepared to meet to discuss the 2017 MCPs.90 117 In March 2018 the parties corresponded in relation to a proposed site visit by representatives of Mineralogy, which did not eventuate. 118 Up to this point, we observe that in none of the correspondence between the parties did the CITIC parties expressly request that Mineralogy provide Sino Iron and Korean Steel with the additional 87 Ex 1557 (GAB Vol 9: p 2883). 88 Ex 1559 (GAB Vol 9: p 2885). 89 Ex 1559 (GAB Vol 9: p 2886). 90 Ex 1561 (GAB Vol 9: p 2887). -- 41 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 42 tenure that was contemplated by the 2016 MCPs or the 2017 MCPs. Nor did the CITIC parties respond to the statements by Mineralogy to the effect that it was necessary for the parties to reach an agreement in relation to such tenure. 119 In the primary proceedings, however, the CITIC parties pleaded (by a relatively late amendment to the Statement of Claim) that the 2017 MCPs 'constituted, and was understood by Mineralogy to constitute, a request that Mineralogy grant Sino Iron and Korean Steel tenure in, including access to and use of', what was defined in the Statement of Claim as the MCP Subset of Requested Areas.91 Those pleadings relied, inter alia, upon the correspondence from Mineralogy to CPMM throughout 2016 and 2017 to the effect that the CITIC parties did not have the tenure to the land referred to in the 2016 MCPs and 2017 MCPs. 2018 Formal Tenure Request 120 By letter dated 29 March 2018, CPMM, on behalf of Sino Iron and Korean Steel, did make a formal request for additional tenure (2018 Tenure Request). This was a crucial document in the primary proceedings, which was pleaded from the commencement of the proceedings as the 'Further Necessary Tenure Request'.92 121 The letter of 29 March 2018 included the following:93 I first wrote to you regarding the MCPs on 9 December 2016. Since that time, the State has reviewed the proposals and requested certain changes which are reflected in the MCPs provided to you on 18 December 2017. In October 2017, environmental approval of the proposed MCP footprint was given under Ministerial Statement 1066. As at March 2018, mining operations continue but, as you are aware, remain significantly constrained by the current footprint. At this crucial time in the Project's development, it is critical that the parties cooperate to achieve the continued operation and success of the Project. To this end, in this letter we confirm requests in relation to: • tenure; and • re-purposing of general purpose leases. 91 Statement of Claim [147A], [147B]. These pleadings were introduced by an Amended Statement of Claim filed on 26 October 2021 and a Further Amended Statement of Claim filed on 14 December 2021 (following an application for leave to amend granted in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 4] [2021] WASC 451). The MCP Subset of Requested Areas was depicted in Annexure 11A to the Statement of Claim. 92 Statement of Claim [147]. 93 Ex 1598 (GAB Vol 9: p 2913 - 2915). -- 42 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 43 Repeating what has been communicated in previous discussions and correspondence, CITIC's position in relation to these issues is as follows. Tenure The scheme of the State Agreement to which we, Mineralogy Pty Ltd (Mineralogy) and the State are parties is that land within Area A was set aside for the purposes of projects to be approved and implemented pursuant to the terms of that Agreement. At the date of writing, just over sixteen years since the State Agreement was first executed, the Sino Iron Project (Project) is the only project to have been so approved and implemented. CITIC's investment in the Project has resulted in the construction of world class facilities and delivered significant benefits to the State of Western Australia and to Mineralogy. … As set out in my letter of 18 December 2017, the footprint proposed in the MCPs has been reviewed by the State and changes have been made to satisfy the State that the proposals, if implemented, will enable the Project to achieve nameplate capacity. As set out in my letter to you of 10 March 2017, CITIC has been prepared to revise its proposal in relation to stockpiles to accommodate Mineralogy's position in that regard notwithstanding that CITIC takes issue with Mineralogy's views on this subject and will incur increased operating costs as a result. Environmental approval of the MCP footprint has been addressed by Ministerial Statement 1066. We consider that the full MCP footprint is required for the continuation of the Project. In light of these circumstances, CITIC considers that, for the sake of good order, it is timely that the rights and obligations of the parties in relation to the MCP footprint be formally recorded. At this time, given that the particular rights and obligations of the parties in relation to the Site Lease Area have been comprehensively documented and are well understood, we consider that the most appropriate way to do this is by amending the definition in the MRSLAs of 'Site Lease Area' to incorporate all of the area comprised in the development envelope and conceptual project layout described in the MCPs forwarded to you on 18 December 2017. A map of the proposed amended Site Lease Area is attached to this letter for ease of reference. Once those amendments have been made, the same rights, obligations and protections that currently exist under the Project Agreements in relation to the Site Lease Area (including obligations in relation to site remediation and payment of rentals) will extend to the MCP footprint. Accordingly, on behalf of Sino Iron and Korean Steel, I ask that Mineralogy agree in writing with each of them that the Site Lease Area, within the meaning of clauses 1.1 and 4.1 of each of the Sino Iron MRSLA and Korean Steel MRSLA, comprise each of the areas outlined -- 43 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 44 in the attached map. Upon confirmation from Mineralogy that it does agree, I will instruct lawyers to prepare appropriate amending documents, and documents to obtain State approval under clause 31 of the State Agreement. You will appreciate that there is a long lead time for completion of heritage, engineering and other preliminary works and to obtain the required government and other approvals before the commencement of any tailings storage facility construction. Mineralogy's urgent attention to this request will assist in ensuring that there is no interruption to operations as existing facilities reach capacity. Re-purposing of general purpose leases Implementation of the Project in conformity with the conceptual layout set out in the MCPs will require the re-purposing of certain general purpose leases held by Mineralogy, namely general purpose leases 08/53, 08/54 and 08/63. In these circumstances, I understand that the relevant procedure involves a conditional surrender by Mineralogy of these tenements to enable titles consistent with the proposed usual identified in the MCPs to be granted to it. Again, upon confirmation from Mineralogy that it agrees to take these steps, I will instruct lawyers to prepare the appropriate documentation. CITIC will meet Mineralogy's reasonable costs of the conditional surrender and re-grant of the general purpose leases. State Agreement approval In my letter to you of 18 December 2017, I respectfully asked Mineralogy to support the submission of the proposals for formal approval under the State Agreement. As set out in my previous letters, the MCPs are the product of lengthy and careful consideration of what is required to enable the continuation of the Project. Sino Iron and Korean Steel press their request that Mineralogy join with them in submitting the MCPs for State Agreement approval. I look forward to Mineralogy's cooperation in moving the MCPs forward and ensuring the continued and successful operation of the Project. 122 The map of the proposed amended Site Lease Area referred to in the letter of 29 March 2018, appeared as follows:94 94 Ex 1598 (GAB Vol 9: p 2916). This map was also Annexure 11 to the Statement of Claim, as depicting the Necessary Further Request. -- 44 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 45 123 As will be apparent from this map, the proposed amended Site Lease Area included all of the land the subject of the existing Site Lease Area, all of the land the subject of the existing approved proposals and all of the area the subject of the 2017 MCPs. In addition, as can be seen, the proposed amended Site Lease Area included portions of those areas identified in the MRSLAs as non-exclusive -- 45 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 46 'Access Areas', particularly the road from the mining areas to the port. The request also included the entirety of the offshore general purpose licence, G08/51, at the northern-most portion of the map. 124 It can also be seen from the 29 March 2018 letter that it requests Mineralogy to apply to 're-purpose' certain of the general purpose leases held by Mineralogy, namely general purpose leases 08/53, 08/54 and 08/63 (re-purposing request). 'Re-purposing' refers to a process by which the purpose for which a general purpose lease under the Mining Act may be used is changed or altered.95 125 In relation to the 29 March 2018 letter itself, a number of further matters may be noted. 126 First, while it refers to the letter 'confirm[ing]' requests in relation to tenure, the 29 March 2018 letter in fact contains the first express request for any additional tenure to be provided by Mineralogy to Sino Iron and Korean Steel. While, as noted at [119] above, the CITIC parties pleaded that the 2017 MCPs themselves constituted a request for tenure, there was, in fact, no express request at that time. In addition, the requested tenure in the 29 March 2018 letter was on any view more extensive than could have been inferred from the 2017 MCPs (including the request for the access roads and offshore lease). 127 Secondly, insofar as Mineralogy could be said to have understood the 2017 MCPs to constitute a request that Mineralogy grant Sino Iron and Korean Steel tenure, it is clear that, from the outset, Mineralogy maintained that it was necessary for the parties to reach a commercial agreement in relation to any additional tenure. The CITIC parties did not engage with Mineralogy's position in that regard. 128 Consistent with the CITIC parties' approach, the 29 March 2018 letter itself does not acknowledge Mineralogy's previous statements to the effect that it was necessary for the CITIC parties to negotiate an agreement for additional tenure. The 2018 Tenure Request rather presents the request for additional tenure as of little consequence and, indeed, something of a formality (e.g. 'for the sake of good order, it is timely that the rights and obligations of the parties in relation to the MCP footprint be formally recorded'). The letter did not identify the basis upon which Sino Iron and Korean Steel were entitled to the additional tenure. Indeed, despite what the CITIC parties knew as to 95 Section 87(2) of the Mining Act provides that the 'purpose or purposes for which a general purpose lease is granted shall be specified in the lease'. -- 46 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 47 Mineralogy's attitude to the grant of additional tenure, the correspondence presents the request as if there could be no question of the CITIC parties' entitlement to the additional tenure (a kind of feigned naïveté as to the likely reaction of Mineralogy to the request). 129 Mineralogy's response, by letter dated 16 April 2018, was precisely what could have been anticipated as the likely reaction to the 2018 Tenure Request. 130 In addition to referring to the recent decision of the learned trial judge in the Royalty Component B proceedings96 and the ongoing dispute in relation to the Site Remediation Fund, Mineralogy said in that letter:97 I refer to your letter dated 29 March 2018 (Letter). I refer you to comments of Martin J of the Western Australian Supreme Court which confirmed Citic Companies have been in breach of their obligations under the MRSLA. Mineralogy has never agreed to any of the matters set out in the Letter and the written agreements between our companies evince the party's rights. … For the avoidance of doubt Mineralogy does not agree to any of the requests set out in your Letter and finds it commercially unrealistic that Citic parties would expect Mineralogy would provide them with five times the amount of areas approved under the approved proposals for free while at the same time not meeting the security requirements of the Site Remediation Fund which supports a good environment for all Western Australians. Please find enclosed an independent report by M Slight in April 2018 confirming the amount required to meet Sino and Korean obligations to date. I note the good faith provisions of the MRSLA and trust this matter can be attended to without further conflict. Mineralogy will then be in a position to consider your company's request. To make it clear Mineralogy will not further consider Sino and Korean's request until the following matters are resolved: (A) Sino and Korean make the payments to the Site Remediation Trust Fund as required by clause 20.5 and 20.6 of the MRSLA in respect of their activities to date. (B) Mineralogy and Sino and Korean agree commercial terms for their use of Mineralogy Mining Leases and General-Purpose Leases. 96 Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340. 97 Ex 1608 (GAB Vol 21: p 7382 - 7383). -- 47 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 48 2018 Request to Submit Programme of Works 131 By letter dated 23 April 2018, CPMM (on behalf of Sino Iron and Korean Steel) provided Mineralogy with a proposed Programme of Works associated with 'investigation requirements to aid in defining the proposed Mine Continuation Proposal development footprint and enable the progression of detail engineering design'.98 CPMM requested that Mineralogy either submit the Programme of Works to the Department of Mines or authorise CPMM to do so on Mineralogy's behalf. 132 While the Programme of Works proposed investigative work relevant to the 2017 MCPs, the activity contemplated by the Programme of Works was confined to areas that were within the existing Site Lease Area under the MRSLAs (namely, mining leases M 08/123, M 08/124 and M 08/125, miscellaneous licences M 08/264, M 08/265, M 08/266 and the southern portion of general lease G 08/53). Unlike the 2017 MCPs, the activity proposed by the Programme of Works did not involve the acquisition, or use, of any additional tenure by Sino Iron or Korean Steel. 133 The Programme of Works essentially proposed drilling 'to allow more accurate mine planning, grade estimation, and geological interpretation ahead of mining' of new pits on the Mining Leases, drilling to determine matters relating to the alluvial aquifer on the Mining Leases and drilling on G 08/53 to investigate a new TSF footprint on that lease.99 134 A subsequent letter from CPMM to Mineralogy, dated 1 May 2018, stated that the request to submit the Programme of Works was 'not connected with the other issues in dispute between the CITIC parties and Mineralogy'.100 135 Mineralogy responded to the request to submit the Programme of Works by letter dated 2 May 2018.101 That letter addressed a number of issues associated with the 2017 MCPs, including stating that 'large parts of the area in blue [i.e. the additional areas identified in the 2017 MCPs] have been committed to other projects' and as to part of those areas that they were 'far in excess of any legitimate purpose required by Citic companies'. 98 Ex 1612 (GAB Vol 9: p 2917). 99 Ex 1612 (GAB Vol 9: p 2920 - 2921). 100 Ex 1619 (GAB Vol 9: p 2927). 101 Ex 1621 (GAB Vol 9: p 2928). -- 48 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 49 136 The letter of 2 May 2018, however, concluded with a reference that evidently included the Programme of Works:102 Mineralogy will not approve any expansion on Mineralogy Mining Tenements at this time nor submit and consent for approval to any Western Australian Government department and requires full compliance of the Citic parties to all agreements and deeds. Further correspondence in 2018 137 The parties continued to correspond throughout 2018 in relation to the 2017 MCPs, the 2018 Tenure Request and the re-purposing request. 138 For their part, the CITIC parties continued to request that Mineralogy submit the 2017 MCPs and pursue the re-purposing request, as being necessary for the future viability of the Sino Iron Project.103 Mineralogy, for its part, continued to maintain that the parties needed to meet to agree a 'resolution of commercial and other issues before we consider any course of action involving the Western Australian Government'.104 139 A notable feature of the correspondence between the parties is that, while there is much attention given by the CITIC parties to the importance of the 2017 MCPs and the re-purposing request, there is little reference to the issues surrounding the additional tenure contemplated by the 2017 MCPs or the 2018 Tenure Request. As with the 29 March 2018 letter itself, the correspondence appears largely to proceed upon the basis that the expansion of the Site Lease Area is something of a fait accompli in relation to which there could be little question. 140 In that regard, it is apparent from Mineralogy's correspondence that Mineralogy continued to maintain that the additional tenure required a commercial agreement. In that context Mineralogy referred to 'commercial consideration'. In its letter of 31 May 2018, for example, Mineralogy stated:105 It is difficult to understand how your companies can expect Mineralogy to consider making more land available when your clients are not 102 Ex 1621 (GAB Vol 9: p 2931). 103 See e.g. letters dated 14 May 2018 (Ex 1624; GAB Vol 21: p 7430), 24 May 2018 (Ex 1628; GAB Vol 21: p 7433), 26 May 2018 (Ex 1629; GAB Vol 21: p 7434), 5 June 2018 (Ex 1641; GAB Vol 21: p 7457), 29 June 2018 (Ex 1645; GAB Vol 21: p 7468); 9 August 2018 (Ex 1654; GAB Vol 21: p 7471). 104 See e.g. letters of 31 May 2018 (Ex 1634, GAB Vol 21: p 7453), 11 June 2018 (Ex 1643; GAB Vol 21: p 7463), 23 July 2018 (Ex 1655; GAB Vol 21: p 7473). 105 Ex 1634 (GAB Vol 21: p 7454). -- 49 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 50 meeting their environmental obligations to contribute to the Site Remediation Fund in respect of the rights the Citic Parties currently enjoy and have not yet submitted to Mineralogy the consideration your company is offering to pay Mineralogy. Mineralogy in acting in its own interest has not received any commercial offer from the Citic Parties for payment in respect of matters set out in the so-called expansion proposals. If Citic Companies are seeking to acquire rights over Land or Leases owned by Mineralogy, Mineralogy must know what commercial consideration the Citic Parties are offering so the matter can be properly considered. Please advise the consideration Citic Companies are offering to pay to extend the Land they occupy by over 400% or more than 80 square kilometers. 141 CPMM's response to that letter, on 5 June 2018, addressed in detail many issues concerning the 2017 MCPs and the re-purposing request and other matters. It characterised Mineralogy's reference to the 'commercial consideration' for the additional tenure as inviting 'the CITIC parties to offer "commercial consideration" to secure Mineralogy's cooperation'. 142 It was in that letter that the CITIC parties appear to first refer to a contractual entitlement to additional tenure at no cost, and the basis for such entitlement. In the letter of 5 June 2018, CPMM said:106 A decade ago Mineralogy transferred to CITIC two companies each holding a one billion tonne mining right in return for a payment of more than US$415 million, and granted options to acquire up to four further companies in return for additional consideration. It was implicit in that transaction that sufficient areas, including for tailings and waste, would be made available to those companies at no additional cost (other than rent and rates payable to government authorities) for the exploitation over the life of the Project of the rights held by them. 143 It is apparent then that, at that time, the CITIC parties maintained that their entitlement to additional tenure arises from the Takeover Agreements. 144 Throughout 2018, the parties made no substantive progress in resolving their differences. The CITIC parties commence the primary proceedings 145 On 19 October 2018 the CITIC parties commenced the primary proceedings in the Federal Court of Australia. A statement of claim was filed on 23 October 2018 (initial statement of claim). 106 Ex 1641 (GAB Vol 21: p 7461). -- 50 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 51 146 On 17 May 2019, Banks-Smith J transferred the primary proceedings to this Court, pursuant to s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and s 138C of the Competition and Consumer Act 2010 (Cth). 147 The CITIC parties' pleaded case in relation to the submission of the 2017 MCPs remained effectively unchanged from the time of the initial statement of claim until trial. In particular, the initial statement of claim pleaded all of the alleged breaches of contract maintained on appeal and summarised at [50], [67], [75], [80] and [86] above. 148 In relation to the repurposing request, the CITIC parties' breach of contract case remained effectively unchanged from the time of the initial statement of claim until trial, and relevantly relied upon the same contractual terms relied upon in relation to the additional tenure requests and summarised at [51], [68], [76], [81] and [87] above. 149 The CITIC parties' pleaded case in relation to the additional tenure request, however, underwent significant amendments during the primary proceedings. Amendments to the Additional Tenure Request 150 The CITIC parties' case in relation to the request for tenure in the initial statement of claim was entirely based upon the 2018 Tenure Request set out at [120] to [122] above, defined in the Statement of Claim as the 'Further Necessary Tenure Request'.107 That request was depicted in the map reproduced at [122] above, which was annexed to the initial statement of claim as Annexure 11. 151 In the initial statement of claim it was the entirety of the 2018 Tenure Request (so defined as the 'Further Necessary Tenure Request') that the CITIC parties submitted engaged the contractual obligations relied upon by the CITIC parties and the failure to grant that request that constituted the alleged breaches of contract maintained on appeal and summarised at [51], [68], [76], [81] and [87] above. 152 The CITIC parties' case in this regard remained unchanged until 26 October 2021. Until that date, no other tenure request was relied upon by the CITIC parties in the primary proceedings. 153 On 26 October 2021, the initial statement of claim was amended. Those amendments introduced the concept of the MCP Subset of 107 Statement of Claim [147]. -- 51 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 52 Requested Areas, referred to at [119] above. In that regard, paragraph 147A of the Statement of Claim was introduced, which pleaded: 147A. Relevantly, the areas covered by the Further Necessary Tenure Request included the areas highlighted in blue on the map in Annexure 11A to this statement of claim, being areas required for purposes necessary or incidental to the implementation of the 2017 MCPs (MCP Subset of Requested Areas). 154 Annexure 11A, referred to in this paragraph, is as follows: -- 52 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 53 155 By way of consequential amendments, all of the paragraphs of the initial statement of claim alleging that the failure of Mineralogy to make the agreement 'requested of it in the Further Necessary Tenure Request' were in breach of the contractual terms summarised at [51], [68], [76], [81] and [87] above, were amended to plead that the alleged breach was by failing to make the agreement 'requested of it in the Further Necessary Tenure Request, as it relates to the MCP Subset of Requested Areas'. 156 As we will come to, these amendments were not merely a technical change to the CITIC parties' pleaded case; in our view, they fundamentally changed the nature of the alleged breach. The CITIC parties no longer maintained that the failure to grant the entirety of the areas in the 2018 Tenure Request was in breach of Mineralogy's contractual obligations, including its obligation to act in good faith. The allegation was now that Mineralogy was in breach of its obligations, including its obligation to act in good faith, by having failed to grant an implied subset of those areas (i.e. the MCP Subset of Requested Areas), notwithstanding that the express request made of it was maintained from the date of the 2018 Tenure Request to the date of the amendment (26 October 2021). 157 We will return to the difficulty with that change to the nature of the CITIC parties' case later. It suffices to note that Mineralogy responded to the amendments by pleading that the amendments constituted an admission that it was never obliged to agree to the Further Necessary Tenure Request (depicted in Annexure 11 of the Statement of Claim) and pleading that at no time had Sino Iron or Korean Steel requested that the Site Lease Area be expanded to include only the MCP Subset of Requested Areas.108 158 This prompted a further amendment to the Statement of Claim, which pleaded the implied tenure request referred to at [119] above. In that regard, paragraph 147B of the Statement of Claim was introduced, which pleaded:109 147B Further or alternatively, the request by CPMM, on behalf of Sino Iron and Korean Steel, that Mineralogy submit the 2017 MCPs to the SA Minister for approval under the State 108 First Defendant's Sixth Further Amended Defence dated 16 February 2022 (Mineralogy's Defence) [147A(b) and (c)]. 109 Statement of Claim [147B] was introduced by a Further Amended Statement of Claim filed on 14 December 2021 (following an application for leave to amend granted in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 4] [2021] WASC 451). -- 53 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 54 Agreement, referred to in paragraph 137 above, also constituted, and was understood by Mineralogy to constitute, a request that Mineralogy grant Sino Iron and Korean Steel tenure in, including access to and use of, the MCP Subset of Requested Areas (the 2017 MCP Tenure Request). 159 The allegations of breach of contract were in turn amended to include, as further breaches, the failure to make an agreement in response to the alleged 2017 MCP Tenure Request. 160 In addition, by letter dated 29 November 2021, the CITIC parties' solicitors made a further request of Mineralogy in relation to the additional tenure (2021 Tenure Request). That letter stated that the introduction of the MCP Subset of Requested Areas into the CITIC parties' pleaded case was done 'with a view to narrowing the issues in dispute in the Proceeding'.110 Noting Mineralogy's position that it had not previously been asked to grant rights over the MCP Subset of Requested Areas, the letter continued: In the interests of: • dealing with this position taken, and the asserted objection by Mineralogy; and • making it clear that our clients only seek the minimum tenure necessary to achieve the objectives of the MCPs, and without prejudice to the separate arguments that the objection is unfounded, on behalf of Sino Iron and Korean Steel, we now make clear, for the avoidance of any doubt, that Sino Iron and Korean Steel ask that Mineralogy agree in writing with each of them that: (a) the Site Lease Area, within the meaning of clauses 1.1 and 4.1 of each of the Sino Iron MRSLA and Korean Steel MRSLA, be amended to include the area shaded in pale blue in the attached map, which area is within the development envelope depicted at Annexure B, Plan 1 of the MCPs, for the purposes of implementation of the MCPs and the Approved Proposals (as defined in the MCPs). For the avoidance of doubt, we have been instructed to note that to the extent that the area shaded in pale blue on G08/53 is next to the north south road, it only abuts that road and does not cross over that road; and (b) Mineralogy grants to each of Sino Iron and Korean Steel a licence to access and use, for the purposes of implementation of the MCPs and the Approved Proposals, the areas shaded in dark 110 Ex 1925 (GAB Vol 10: p 3085). -- 54 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 55 blue in the attached map (to the extent that Sino Iron and Korean Steel do not already have a licence in respect of those areas). 161 The map attached to the letter of 29 November 2021, depicting the 2021 Tenure Request (and which became Annexure 11B to the Statement of Claim), was as follows:111 111 Ex 1926 (GAB Vol 10: p 3088). -- 55 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 56 162 As will be apparent, the 2021 Tenure Request was in similar, albeit not identical (particularly in relation to the area at the port), form, as the MCP Subset of Requested Areas depicted in Annexure 11A of the Statement of Claim. 163 The letter of 29 November 2021 concluded that if Mineralogy did not agree within 7 days of the date of the letter to the 2021 Tenure Request, the CITIC parties would assume that Mineralogy had refused the request and would commence fresh proceedings. 164 On 8 December 2021, Mineralogy responded to the letter of 29 November 2021, in the following terms:112 Thank you for your purported request dated 29 November 2021. While Mineralogy is under no obligation to consider the purported request, without prejudice to that position, Mineralogy will review the letter dated 29 November 2021 but requires more time and more information before it can commence doing so. Mineralogy has already taken steps to marshal resources to consider the complex nature of the letter because it touches upon legal, engineering and geological issues. Mineralogy intends forming a committee to review consisting of consultants in 14 days to consider the letter. In [the] meantime, Mineralogy requests that your clients provide additional information including: (a) identification of the use proposed by your clients for the areas; (b) details of third party access regime; (c) copies of engineering and drawing plans for activities on the area; (d) GIS layers; (e) details of consultations with Indigenous parties, other community entities and the State Government; (f) an indication of whether your clients have sought FIRB approval (as they are companies ultimately owned by the People's Republic of China); (g) details of what commercial consideration your clients propose; 112 Exhibit 1929 (GAB Vol 10: p 3089 - 3090). -- 56 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 57 (h) the legal regime your clients propose to deal with environmental approval and environmental damage. The above list is not exhaustive, but the sooner we receive the information, the sooner we can further the assessment of the letter and its desirability. We assure you that now that your clients have acquired a Third Company and the obligations under the CPOA have been met, which was not the case previously, we are happy to seriously consider your proposal without prejudice to our position that we are under no obligation to do so. We observe that 6 days is not a realistic timeframe to consider a proposal which involves third parties, the State government, FIRB and impact on the community and future projects and the matters above. In respect of your clients' proposal to commence legal proceeding if we do not respond in 7 days, we say that we do not believe that any cause of action can arise, including because we have not had a reasonable opportunity to consider the proposal in 2021 and the commercial and legal matrix operating in 2021 as against other years which was completely different. We invite your clients to meet with us at your earliest convenience to expand upon the letter so we may fully understand your needs. We trust you will adopt a proportionate and orthodox approach and not act in an irrational manner by racing off to Court, when there is no need to do this at this time. We note in respect of your previous proposal in 2018, you did not take such action until after 6 to 9 months and we cannot understand you are making unrealistic demands upon us. As Winston Churchill said 'Jaw jaw is better than war war'. 165 On the same day, 8 December 2021, the CITIC parties commenced fresh proceedings in relation to the 2021 Tenure Request, alleging that the failure of Mineralogy to make the agreement requested in the 2021 Tenure Request, within 7 days of that request were further breaches of contract by Mineralogy (CIV 2326 of 2021). The pleadings as to the relevant breaches replicated the breaches pleaded in relation to the agreement 'requested of it in the Further Necessary Tenure Request, as it related to the MCP Subset of Requested Areas' and the failure to grant the areas 'requested in the 2017 MCP Tenure Request'.113 113 See Statement of Claim [154A], [154B], [154C], [154D], [169B], [169C]. -- 57 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 58 166 By order of the learned trial judge, the fresh proceedings in relation to the 2021 Tenure Request were consolidated with the primary proceedings.114 167 Accordingly, by the time of the trial of the primary proceedings, the CITIC parties advanced three alternative sets of claims for breach of contract (summarised at [51], [68], [76], [81] and [87]) in relation to the additional tenure, namely: (a) that Mineralogy was in breach in failing to grant the areas requested in the alleged 2017 MCP Tenure Request (implicit in the 2017 MCPs); (b) that Mineralogy was in breach in failing to grant the areas requested of it in the 2018 Tenure Request, as it related to the MCP Subset of Requested Areas; and (c) that Mineralogy was in breach in failing to grant the areas requested of it in the 2021 Tenure Request. Relief claimed in the primary proceedings 168 It is important, at this point, to say something about the breach of contract claims and the relief claimed in the primary proceedings. 169 The CITIC parties' pleaded case, in relation to the submission of the 2017 MCPs, the requests for additional tenure and the other requests made of Mineralogy (such as the re-purposing request and the request to submit the Programme of Works) was that Mineralogy was in breach of contract in failing to actually accede to those requests. For example, the pleaded case was that Mineralogy was in breach in failing and refusing to 'submit the 2017 MCPs',115 'make the agreement requested of it' and 'failing and refusing to grant' the additional tenure,116 'failing and refusing to take the steps requested of it in the Re-purposing request'117 and failing and refusing to submit' the Programme of Works.118 170 To be clear, the CITIC parties' case was not that Mineralogy was in breach of contract in failing to 'consider' those requests, or in failing to 'engage' or 'negotiate' with the CITIC parties in relation to the 114 See Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 6] [2021] WASC 475. 115 Statement of Claim [166], [167]. 116 Statement of Claim [168], [169], [169B], [169C]. 117 Statement of Claim [170], [171]. 118 Statement of Claim [172], [173]. -- 58 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 59 requests. The CITIC parties' case depended upon them establishing that Mineralogy was contractually obliged to take the steps requested of it. 171 This was reflected in the relief claimed by the CITIC parties in the Statement of Claim, which included coercive relief against Mineralogy to take the various steps requested of it. For example, the prayer for relief included the following:119 A. Orders for specific performance, … alternatively injunctions under the general law, requiring Mineralogy to, forthwith: a. jointly with Sino Iron, submit the 2017 Sino Iron MCP to the SA Minister for approval under the State Agreement; and b. jointly with Korean Steel, submit the 2017 Korean Steel MCP to the SA Minister for approval under the State Agreement. B. Orders for specific performance, … alternatively injunctions under the general law, requiring Mineralogy to, forthwith: a. agree in writing with each of Sino Iron and Korean Steel that the Site Lease Area, within the meaning of clauses 1.1 and 4.1 of each of the Sino Iron MRSLA and the Korean Steel MRSLA, comprises each of the areas outlined in the map in Annexure 11A to this statement of claim; and b. alternatively to (a), grant to Sino Iron and Korean Steel such further tenure including access to or use of land within the areas outlined in the map in Annexure 11A as the Court determines is reasonably required by Sino Iron and Korean Steel for the purposes of the 2017 MCPs, upon such terms as the Court determines are reasonable. BA. Alternatively to prayer for relief B above, orders for specific performance, … alternatively injunctions under the general law, requiring Mineralogy to, forthwith: a. agree in writing with each of Sino Iron and Korean Steel that: i. the Site Lease Area, within the meaning of clauses 1.1 and 4.1 of each of the Sino Iron MRSLA and Korean Steel MRSLA, be 119 This extract does not include reference to the causes of action other than breach of contract (unconscionability etc) that are no longer pursued in the appeal. -- 59 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 60 amended to include the area shaded in pale blue in the map contained in Annexure 11B; ii. Mineralogy grants to each of Sino Iron a licence to access and use, for the purposes of implementation of the MCPs, the areas shaded in dark blue in the map contained in Annexure 11B, to the extent that Sino Iron and Korean Steel do not already have a licence in respect of those areas; b. alternatively to (a), grant to Sino Iron and Korean Steel such further tenure including access to or use of land within the areas outlined in the map in Annexure 11B as the Court determines is reasonably required by Sino Iron and Korean Steel for the purposes of the 2017 MCPs, upon such terms as the Court determines are reasonable. … C. Orders for specific performance, … alternatively injunctions under the general law, requiring Mineralogy to, forthwith take the following steps to secure the repurposing of G08/53, G08/54 and G08/63 to enable the establishment of the infrastructure and facilities provided for in the 2017 MCPs: a. conditionally surrender each of G08/53, G08/54 and G08/63, such surrender being conditional upon the grant of the general purpose leases referred to in subparagraph (b) below; and b. apply for the grant of general purpose leases over the areas presently covered by G08/53, G08/54 and G08/63, with purposes consistent with the proposed usage of those areas identified in the 2017 MCPs. D. Orders for specific performance, ... alternatively injunctions under the general law, requiring Mineralogy to, forthwith, submit the PoW to DMIRS for assessment, or authorise CPMM to submit the PoW to DMIRS for assessment on behalf of Mineralogy. 172 The prayer for relief also included claims for damages, although those claims related to the same alleged breaches (namely failing to actually accede to the various requests).120 They did not relate to some different breach. 120 Statement of Claim [204]. -- 60 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 61 173 In that regard, the trial before the learned trial judge was conducted pursuant to an order under O 32 r 4 of the Rules of the Supreme Court 1971 (WA) that 'the quantification of any loss or damage suffered by the plaintiffs' and the quantification of any damages or compensation claimed in the Statement of Claim be tried separately (if necessary) following the determination of all other issues in the primary proceeding. Primary reasons 174 The Primary reasons are extremely lengthy; together with annexures they run to 900 pages. For the purposes of the appeal, however, it is not necessary to set out the learned trial judge's reasoning at significant length. This is for two broad reasons. 175 First, while there were significant issues in relation to whether, in fact, Mineralogy was in breach of the various contractual provisions relied upon by the CITIC parties, the primary facts in relation to the dealings between the parties were not contentious. That is, there were no witnesses called as to the dealings or 'negotiations' between the parties surrounding the various requests by the CITIC parties. For the most part the conclusions to be drawn as to the contractual effect of the correspondence between the parties were matters of inference from the primary documents themselves. 176 In that regard, there were only four witnesses called to give evidence at the trial, all of whom were called by the CITIC parties: Mr Robert Goodwin, Mr Michael Tonkin, Professor David Williams and Mr David Netterfield. Those witnesses concerned, as the learned trial judge described it, 'meeting a threshold (either as a contractual term or otherwise), of showing that the extra tenure areas being sought from Mineralogy were all "reasonably required" by Sino Iron and Korean Steel – for purposes of advancing the Sino Iron Project'.121 177 In relation to that issue of fact, there arose at trial a dispute as to the relevant 'threshold' against which the evidence was to be assessed and the facts determined; namely whether the CITIC parties needed to establish that the additional tenure was 'essential, necessary or critical' for the continuation of the Sino Iron Project (a higher threshold) or, alternatively, whether the additional tenure would be 'optimal' or 'desirable' for the Sino Iron Project (a lower threshold). We will return to it later, but it suffices at present to observe that the learned trial judge 121 Primary reasons [1276]. -- 61 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 62 held, as a matter of both the CITIC parties' pleaded case, and the manner in which they ran the trial, that the CITIC parties were required to meet the higher threshold.122 178 The second reason that it is not necessary, with respect, to rehearse all of the learned trial judge's reasoning in the Primary reasons is that, insofar as the CITIC parties' case was based on the construction of the various contractual provisions in the agreements between the parties, the correctness standard applies. The proper construction of the agreements is a question of law and the task of this Court in construing the various agreements is to determine for itself the proper construction of the instruments.123 This is also the case in relation to the scope, content and operation of the obligation of good faith, expressed in cl 37.4 of the MRSLAs and said to be implied in the MRSLAs and all of the other agreements. In the Primary reasons, the learned trial judge expressed certain conclusions as to the content of that obligation in the context of a request for additional tenure, which the CITIC parties submitted were 'not challenged' on appeal.124 As the CITIC parties accepted, however, the 'outworking' of an obligation of good faith when applied to the facts of the present case was a question of law, in relation to which this Court was not bound by some, but not other, parts of the learned trial judge's reasoning.125 179 It is therefore sufficient, for the purposes of the appeal, to identify the ultimate conclusions of the learned trial judge that were determinative of the primary proceedings, and which are challenged in the appeal. Principal findings challenged in the appeal 180 As noted at the beginning of these reasons, save for the relief in relation to the Programme of Works, the learned trial judge rejected the CITIC parties' claim that, in failing to grant the additional tenure and submit the 2017 MCPs, Mineralogy was in breach of the contractual obligations identified above. 122 Primary reasons [223], [454], [974], [1343], [2462(f)]. 123 Life Insurance Company of Australia Ltd v Phillips [1925] HCA 18; (1925) 36 CLR 60, 78 - 79 (Isaacs J); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [154] (Edelman J); Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80; (2019) 55 WAR 89 [172] (Buss P, Murphy & Beech JJA). 124 Appeal ts 120. 125 Appeal ts 120 - 121. -- 62 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 63 Primacy of the tenure requests 181 The first logical step towards that ultimate conclusion was the learned trial judge's conclusion that unless the CITIC parties were entitled to, and were granted, the additional tenure (on one of the bases summarised in [167] above), Mineralogy was not obliged to submit the 2017 MCPs. This conclusion was variously expressed in the Primary reasons, perhaps most clearly as:126 Until the underlying MCP assumed additional tenure areas acquisition from Mineralogy issue is confronted and surmounted, the 2017 MCPs as packaged proposals for Mineralogy to accept and progress – are not in a settled enough state as regards these additional tenure assumption areas being obtained from Mineralogy and shown as used in the Sino Iron Project in future – to be submitted to the Minister for an executive consideration. Their MCP submission is premature until those underlying additional tenure areas acquisition issues with Mineralogy are first resolved and settled. 182 The consequence of this first step in the reasoning was that if the claim to the additional tenure failed, the claim in relation to the 2017 MCPs 'correlatively failed, given the failures of some of the additional underlying tenure acquisition premises in those MCPs as prepared and given to Mineralogy'.127 183 In that context, the learned trial judge observed that cl 29 of the State Agreement provides, in effect, a warranty in relation to agreements between Mineralogy and Co-proponents in relation to land access (see [48] above).128 184 Accordingly, the principal focus of the Primary reasons was on the claim for the additional tenure. 185 That focus involved a number of strands of reasoning, each of which addressed, in varying ways, whether the requests for additional tenure were 'reasonable requests' or whether the additional tenure was 'reasonably required'. 'No consideration' issue 186 First, the learned trial judge devoted a great deal of attention in the Primary reasons to the issue as to whether Mineralogy could be contractually obliged to grant additional tenure in the absence of any 126 Primary reasons [845]. 127 Primary reasons [2462(v)]. 128 Primary reasons [92], [1148]. -- 63 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 64 additional consideration from the CITIC parties. That is, the learned trial judge focussed on whether any of the pleaded contractual terms could oblige Mineralogy to provide additional tenure for no further consideration. His Honour variously referred to this issue as the 'no payment expressed approach',129 the 'no payment to Mineralogy fiscal feature,'130 the 'no payment component',131 the 'nil additional monetary consideration promise',132 the 'no further monetary reward' basis,133 the 'negative fiscal acquisition entitlement',134 the 'essential negative fiscal contention',135 and, finally, 'the CITIC plaintiffs' implacable no further remuneration (beyond existing entitlements) to Mineralogy premise'.136 187 In relation to that broad issue, the learned trial judge concluded that none of the contractual terms pleaded by the CITIC parties supported:137 the CITIC plaintiffs' essential negative fiscal contention – namely, that they are able to compulsorily obtain those additional areas of tenure from Mineralogy on a basis of no further monetary reward (i.e., no further legal consideration) being payable to Mineralogy in return. 188 His Honour's conclusions in relation to the specific express and implied terms relied upon by the CITIC parties may be summarised as follows. 189 In relation to cl 7(6) and cl 8(2) of the State Agreement, his Honour concluded that the obligations to implement approved proposals and ensure continuous operation of the Project 'do not extend far enough to impose that additional tenure obligation upon Mineralogy, let alone on a basis for no greater payment in return for the additional tenure areas sought'.138 190 The learned trial judge reached the same conclusion in relation to the express terms in the Takeover Agreements139 to provide 'reasonable assistance' to progress the development of the Project.140 129 Primary reasons [345]. 130 Primary reasons [934]. 131 Primary reasons [1965]. 132 Primary reasons [962]. 133 Primary reasons [1015]. 134 Primary reasons [1013]. 135 Primary reasons [1015]. 136 Primary reasons [1281]. 137 Primary reasons [1015]. 138 Primary reasons [817], [829]. See also at [1018], [1020]. 139 See [73] above. 140 Primary reasons [824] - [826], [829]. -- 64 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 65 191 In relation to the MRSLA Implied Necessary Tenure Term,141 the learned trial judge concluded that the implied term pleaded by the CITIC parties did not satisfy the criteria for the implication of terms identified in BP Refinery (Westernport) Pty Ltd v Shire of Hastings.142 In particular, his Honour concluded that the MRSLA Implied Necessary Tenure Term was not reasonable and equitable,143 it was not clear, obvious or necessary,144 it was not capable of clear expression145 and it did not sit comfortably with the express terms of the MRSLAs.146 192 While it is not entirely clear from the Primary reasons, the learned trial judge appears to have dealt compendiously with the express obligation of good faith in cl 37.4 of the MRSLAs, the implied obligations of good faith in each of the agreements and the obligation of mutual co-operation implied by law in those agreements. 193 In that context his Honour made the following observations in relation to the content of the obligation of good faith, as it applied in this case:147 By reference to the express cl 37.4 MRSLA good faith obligation as pleaded (with some undue elaboration) under [Statement of Claim] par 49, read with pars 152, 154 and 169(e) (i.e., factoring into the evaluation as well as the implied obligation by law of Mineralogy to cooperate, as discussed by Mason J from Secured Income), I am able to conclude that the MRSLA obligation of good faith upon Mineralogy, in my view, required Mineralogy to honestly consider any reasonable request made to Mineralogy by Sino Iron or Korean Steel (or on their behalf) for further tenure – if that tenure was 'reasonably required' for purposes of advancing the Sino Iron Project at Cape Preston. That, of course, is to say nothing about payment to Mineralogy for the extra areas which is an allied consideration of itself. As sub-components of the express MRSLA cl 37.4 good faith obligation, there would need to be: (a) an express request to Mineralogy for extra tenure areas; (b) an express request that was reasonable in all the circumstances that prevailed at the time it was made; 141 See [65] above. 142 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 (BP Refinery). 143 Primary reasons [937]. 144 Primary reasons [938]. 145 Primary reasons [953] - [954]. 146 Primary reasons [939] - [948]. 147 Primary reasons [619] - [620]. See to similar effect Primary reasons [969]. The formulation in Primary reasons [969] refers to a 'clear request' rather than an 'express request'. -- 65 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 66 (c) that the extra tenure areas requested would be tenure areas 'reasonably required' (the phrase taken from Recital E that will need unlocking – but at least would cover available extra areas shown as being necessary for the Sino Iron Project to viably continue to operate into the future); and (d) that such request to Mineralogy not only be honestly considered by Mineralogy, but that it would not, as a matter of implication, be 'unreasonably refused' by Mineralogy – if it was at the time within Mineralogy's capability to provide the further tenure requested of it. 194 As will be apparent from the first paragraph reproduced above, as in relation to the other contractual terms, the learned trial judge regarded the issue of 'payment to Mineralogy' as relevant to the outworking of the obligation of good faith in the present case. In that regard, his Honour concluded:148 But the cl 37.4 MRSLA good faith obligation is a mutual one, absent the presence of any other contractual term (express or implied) that obliges Mineralogy to provide additional tenure areas for nothing more – upon the request for additional tenure areas. At minimum, Sino Iron and/or Korean Steel ought to communicate a position open to offering Mineralogy some reasonable level of remuneration in return for such areas of additional tenure. A remuneration offer ingredient is invariably found to be absent in all of the tenure requests and demands made of Mineralogy for greater tenure areas, as were examined during this Primary Trial. Absence of an offer of reasonable remuneration in return for requested areas would, in my assessment, lead by itself to a necessary characterisation of all such prior tenure requests, as not being reasonably made requests to Mineralogy at the time. At minimum, there ought, as between these MRSLA parties, owing mutual obligations of good faith to each other, to be a good faith negotiation between them to reach a negotiated price provided in return for extra tenure area sought from Mineralogy. 195 The learned trial judge concluded that this 'no consideration' issue was itself sufficient to dispose of the CITIC parties' claims for breach of contract, 'without canvassing any of the witness evidence that was adduced … by the CITIC plaintiffs by their lay and technical and expert trial witnesses'.149 148 Primary reasons [986] - [988]. 149 Primary reasons [1021]. -- 66 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 67 196 His Honour nevertheless addressed a number of other issues as to the 'reasonableness' of the requests for additional tenure (not least because they were relevant to the other causes of action not pursued on the appeal). Those strands of reasoning also became alternative bases upon which the contract claim was dismissed. Factual findings as to the additional tenure 197 The next significant strand in the learned trial judge's approach concerned the issue as to whether the CITIC parties had met 'a threshold (either as a contractual term or otherwise), of showing that the additional tenure sought from Mineralogy were all "reasonably required" by Sino Iron and Korean Steel – for purposes of advancing the Sino Iron Project'.150 198 This issue was concerned with whether as a matter of fact the areas of additional tenure were 'reasonably required' for the purposes of the Sino Iron Project, leaving aside the issue as to whether the CITIC parties were entitled to such areas for no consideration. As the learned trial judge recognised, of course, the considerations relevant to whether a tenure request was 'reasonable' or the additional tenure was 'reasonably required' were not 'logically severable' and would ultimately depend upon the request considered as a whole.151 199 Nevertheless, his Honour did address, separately, whether the additional tenure was 'reasonably required' by the CITIC parties for the purposes of the Project, by reference to the technical and expert evidence called by the CITIC parties. Pleading point regarding 'Reasonably Required' 200 Before addressing that evidence, as noted above,152 his Honour addressed an issue in relation to the pleadings, and the conduct of the case, as to the standard against which to determine whether the additional tenure was 'reasonably required'. 201 As to that issue, the learned trial judge found that additional tenure would be 'reasonably required' of Mineralogy if it was shown to be 'necessary' – in the sense of that additional tenure as requested being demonstrated to Mineralogy to be either 'essential' or 'critically' 150 Primary reasons [1276]. See [176] above. 151 Primary reasons [1282]. 152 See [177] above. -- 67 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 68 required to support or advance the continuation of the Sino Iron Project.153 202 In that context, the learned trial judge concluded that the CITIC parties pleaded and opened their case on the basis that the additional tenure requested of Mineralogy was 'reasonably required' on the basis that these areas were 'necessary', 'critical', or 'essential'.154 His Honour accepted the submission by Mineralogy that, in closing, the CITIC parties veered away from that standard to submit the additional tenure areas were 'reasonably required' on the basis that these additional areas were 'desirable', or 'optimal' to aid the CITIC parties to reach more economic and efficient outcomes for the Sino Iron Project.155 203 The learned trial judge accepted that Mineralogy would be forensically prejudiced by what had been a very late and impermissible shift in the CITIC parties' pleaded and articulated case.156 His Honour concluded that the threshold of 'critical', 'necessary' or 'essential' had been the basis upon which the CITIC parties had pleaded and run their case for the primary trial at the outset, and noted that no leave of the court to amend the Statement of Claim to depart from the position during the trial was sought, or obtained.157 204 The learned trial judge went on to conclude the 'critical', 'necessary' or 'essential' threshold would not be met in relation to an area of requested tenure merely by some perception as to the future utility of the acquisition, or which were evaluated as merely 'desirable' areas for Sino Iron and Korean Steel to hold or use – but otherwise, inessential towards furthering the objects of the Sino Iron Project.158 205 The learned trial judge indicated that, in case he was wrong in relation to the standard by which he had assessed whether the additional tenure was 'reasonably required', he would make alternative findings at the level of the lesser standard of 'optimality or utility'.159 Factual findings as to 'Reasonably Required' 206 In short, the learned trial judge concluded, on the evidence, that the only areas within the request for additional tenure that were 153 Primary reasons [2462(f)]. 154 Primary reasons [2462(f)]. 155 Primary reasons [222] - [223], [449] - [453]. 156 Primary reasons [451] - [452]. 157 Primary reasons [2462(f)]. 158 Primary reasons [974] - [975]. See also [2462(n), (s) and (t)]. 159 Primary reasons [223]. -- 68 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 69 'reasonably required' by the CITIC parties – in the sense that they were necessary, essential or critical to the continuation of the Project – were the 'proposed additional areas then being sought within G08/63 for extra tailings storage facility (TSF) and for the extra waste rock dump (WRD) areas'.160 207 Those areas, which are referred to at [111(a)] above, are to the east of mining leases M08/124 and M08/125 and to the south of general purpose lease G08/54. They can best be seen in the lower right hand quadrant of the following extract from Annexure F to the 2017 MCPs:161 208 The learned trial judge's particular finding in relation to those areas was:162 It is proposed by the MCPs as seen to construct a new southern TSF, after an expanded northern TSF. Whilst another TSF areas at the south for the Sino Iron Project would obviously be of greater utility to a three billion tonne magnetite ore extraction project than to a two billion tonne project, I accept as persuasive the 'on the ground' view of the Sino Iron Project operator that additional southern TSF and WRD areas are essential for the existing two billion tonne ore project, despite that 160 Primary reasons [2462(k)]. 161 Ex 1688 (GAB Vol 10: p 3000), Ex 1689 (GAB Vol 10: p 3052). 162 Primary reasons [1591]. See also Primary reasons [2405]. -- 69 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 70 assessment being arrived at conservatively by Mr Goodwin – on his instructions. 209 In relation to all of the other areas identified in the MCP Subset of Requested Areas and the 2021 Tenure Request, the learned trial judge concluded that they were not 'reasonably required', in the sense that they were necessary, essential or critical to the continuation of the Project. 210 In relation to the particular areas the subject of evidence, his Honour held: (a) as to the 'crescent-shaped area' on general purpose lease G08/74 (referred to at [111(b)] above), that, while an expanded tailings storage facility was essential for the future of the Project, the addition of the 'Crescent component to an expanded northern TSF' was not 'essential';163 (b) as to the expanded area at the port on general purpose lease G08/52 (referred to at [111(c)] above), that, while additional areas at the port were 'desirable and of general and economic commercial utility', they were not essential to the continuation of the Project;164 (c) as to the infrastructure corridors (referred to at [111(d)] above) and the new accommodation village (referred to at [111(e)] above), which would reduce travel time for Sino Project employees, that, while making commercial sense, they were not essential. In that context, the learned trial judge observed that there were alternative arrangements that could be taken to address employee welfare concerns;165 (d) in relation to the relocation of the Fortescue River Road (referred to at [111(f)] above), the placement of which had not been finalised,166 that it was 'welcome but not critical';167 and (e) in relation to the crossovers on the north-south infrastructure corridor (referred to at [111(g)] above), that there was a lack of 163 Primary reasons [1587]. 164 Primary reasons [1626] - [1627]. 165 Primary reasons [1637] - [1639]. 166 Primary reasons [1292(7)]. 167 Primary reasons [1541]. -- 70 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 71 an established need for those areas to form part of the 'exclusive' Site Lease Area under the MRSLAs.168 211 In relation to all of these areas the learned trial judge also made an alternative finding to the effect that each area would 'meet (if applicable) a lower threshold of being desirable, or optimal areas to hold for the Sino Iron Project, were that the lesser governing standard'.169 To that extent, and leaving aside the no-consideration issue, his Honour concluded that all the additional tenure requested in the 2021 Tenure Request would meet the lesser standard of optimality or utility.170 212 His Honour expressed a significant caveat in relation to this alternative finding, which was in relation to the request contained in the 2018 Tenure Request with respect to the areas identified in the MRSLAs as non-exclusive 'Access Areas', including the road from the mining areas to the port and the entirety of the offshore general purpose licence, G08/51 (see [123] above). The learned trial judge concluded that on no view could those areas have been regarded as 'reasonably required'. 213 In that context his Honour said:171 That 'all of' infrastructure corridor aspect of the 2018 tenure request was not pursued after arrival of the ASOC at October 2021. The no longer pursued tenure claim for exclusive status (by reference to the MRSLAs' deployment of the same SLA definition terminology) over that entire north-south infrastructure corridor and without an evident justification ever being provided for it then or at the time – did present to me as an excessive and extravagant tenure claim – even evaluated at the lesser standard of being tenure that is only desirable or optimal to obtain. A non-exclusive use, as is and has been held and currently enjoyed, would, on the evidence, adequately suffice. Because the 29 March 2018 extra tenure request (like the 2016 and 2017 MCPs themselves) had been put to Mineralogy as all or nothing indivisible tenure packaged requests to accept, this largess of claimed tenure over the north-south infrastructure corridor, as an expansionist extravagance flaw – manifesting at the time – would, in itself, be enough to defeat the 29 March 2018 request for extra tenure – because all that infrastructure corridor area was not then reasonably required from Mineralogy. 168 Primary reasons [1536], [2434] - [2447]. 169 Primary reasons [2462(n)]. 170 Primary reasons [455]. 171 Primary reasons [457] - [459]. -- 71 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 72 So the 29 March 2018 tenure request could not, because of that flaw, be assessable as a global request for additional tenure as being 'reasonably required', even at a lower tenure acquisition standard of merely optimal or desirable to hold. 214 The learned trial judge's references in this passage to the 'all or nothing' and 'global' nature of the 2018 Tenure Request point to several other strands of reasoning in relation to whether the requests of addition tenure were 'reasonable'. 215 It is to those additional matters that we now turn. Other matters relevant to the requests for additional tenure 216 The additional matters relied upon by the learned trial judge in relation to whether the requests for additional tenure were 'reasonable requests' or whether the additional tenure was 'reasonably required', included, relevantly: (a) whether the 2017 MCPs actually contained an implied request for tenure for the MCP Subset of Requested Areas, as alleged by the CITIC parties (see [158] above); (b) whether the 2017 MCPs and the request for additional tenure were global 'indivisible' proposals or whether they were 'divisible'; (c) whether there was sufficient technical information provided as part of the requests for additional tenure to enable the requests to be properly considered by Mineralogy; and (d) whether Mineralogy had been given a reasonable time within which to consider the 2021 Tenure Request (given the 7-day deadline in the letter of 29 November 2021 making the request). 217 The learned trial judge's conclusions in relation to each of these matters were identified by his Honour as, in various ways, independent bases for concluding that the requests for additional tenure were not 'reasonable'. Did the 2017 MCPs contain an Implied Request for the Additional Tenure? 218 As noted at [167] above, the CITIC parties' case at trial alleged that Mineralogy was in breach of contract in failing to grant the areas of tenure requested in the alleged 2017 MCP Tenure Request (said to be -- 72 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 73 implicit in the 2017 MCPs) and in the 2021 Tenure Request. That case is maintained on appeal.172 219 In relation to the alleged 2017 MCP Tenure Request, which was introduced into the Statement of Claim on 14 December 2021, the learned trial judge concluded that there was no such tenure request. His Honour said:173 It contends, in effect, for some implied or earlier (than 28 March 2018) tenure request made of Mineralogy in respect of lesser subset areas. This is said to arise out of 11 documentary components identified under the par 147B particulars. But that derived lesser area tenure request, so called is, as I have concluded, misconceived. It stands as irreconcilable with Mr Zeng's express and precisely designated request for greater extra tenure areas from Mineralogy made at 29 March 2018 – a request for the greater areas perpetuated and reinforced by the founding statement of claim of this litigation at October 2018, that remained constant until the ASOC of 26 October 2021. 220 Recalling that the alleged 2017 MCP Tenure Request was depicted in Annexure 11A to the Statement of Claim (see [154] above), the learned trial judge said, in relation to the 2017 MCP Tenure Request:174 [T]his defined term may lead the casual reader to think that there had been, in respect of Annexure 11A map areas, some specific earlier tenure request made during 2017 to Mineralogy for the 11A map areas, as so delineated. There was not. Indeed, the Annexure 11A marked areas only emerged, under that tenure map showing the lesser in scale as delineated tenure areas – as a fresh map at 26 October 2021, accompanying the new ASOC pleading of the CITIC plaintiffs. The definition deployed as a '2017 MCP Tenure Request' is merely an 'umbrella' for a legal argument I have now considered and rejected earlier – contended on the basis of Mineralogy's alleged understanding of Sino Iron and Korean Steel's 2017 MCP documents as they were provided to Mineralogy on 18 December 2017, seeking Mineralogy's submission of them as Co-Proponent to the Minister for approval. The rejected argument was that necessarily from out of the 2017 MCPs given to Mineralogy can be derived an implied request made then of Mineralogy for the lesser areas as the extra tenure – seen on the Annexure 11A map – albeit that map only emerged at October 2021. This is all potentially confusing and unnecessary. 172 Ground 14. Ground 14 does not used the defined term '2017 MCP Tenure Request' but rather refers to 'the implicit tenure request in 2017 MCPs'. 173 Primary reasons [562]. 174 Primary reasons [789] - [795]. -- 73 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 74 As earlier canvassed by reference to eleven (11) communications assembled and particularised under [Statement of Claim] par 147B, only two of the 11, namely (iii) and (xi), chronologically emerged after Mr Zeng's express request for additional tenure areas from Mineralogy the subject of his 29 March 2018 communication (appending his map which became [Statement of Claim] Annexure 11). The par (iii) communication is Mr Palmer's communication of 2 May 2018 (see exhibit 1621). It does not in specific terms address these lesser areas on a delineated basis akin to the areas marked on the map that is Annexure 11A. Likewise, the further 20 April 2018 communication made by Mr Spielvogel of Mineralogy, as a subject of particular (xi), does not do that either (see exhibit 1610). Those later two internal communications in context, were inconsequential. If there were any level of uncertainty over the scope of the extra tenure areas as was being requested of Mineralogy in December 2017 – that issue came to be explicitly resolved – as the aftermath of the 29 March 2018 tenure communication made by Mr Zeng towards the extra areas in red on the Annexure 11 map, as sought of Mineralogy as so delineated, at that time. After 29 March 2018, Mr Zeng's extra tenure request position was confirmed and reaffirmed, as seen under the original statement of claim filed at the commencement of this litigation in the Federal Court in October 2018 (prior to the action being remitted to this Court under the national cross vesting legislation, at May 2019). So the extra tenure areas being sought from Mineralogy were explicitly delineated by reference to that original pleading and in prayer B therein – in the terms of the proposed mandatory injunction as sought, requiring Mineralogy's agreement to extra tenure as then framed explicitly by the parameters of the Annexure 11 map – the same tenure map that had accompanied Mr Zeng's 29 March 2018 express tenure communication to Mineralogy. That remained the CITIC plaintiffs' position as to the extra tenure areas sought of Mineralogy by injunctive relief for the next three years, until the ASOC of October 2021 – when the dimensions of the additional tenure sought from Mineralogy under the Annexure 11A map then published, shrank. The [Statement of Claim] par 147A observed attempt to suggest that the Annexure 11A map's lesser areas as delineated were necessarily or implicitly earlier requested and that this was understood by Mineralogy as a request for lesser areas made in 2017, rather than at 26 October 2021 (apart from the earlier provision of the minute of the ASOC for the purposes of obtaining Mineralogy's and Mr Palmer's consent to those proposed amendments at 20 October 2021) only injects another layer of potential confusion to the pleading. 221 In light of his Honour's formulation of the need for an 'express request' or a 'clear request' in the application of the obligation of good faith (see [193] above), the absence of such a request provided an -- 74 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 75 additional basis for the learned trial judge's rejection of the CITIC parties' contract claim for the additional tenure. Indivisibility of the Requests for Additional Tenure 222 The learned trial judge observed, at various points in the Primary reasons, that the 2017 MCPs (and any implicit request for tenure that was contained within them) were presented to Mineralogy as an entire 'package'. 223 Early in the Primary reasons, for example, his Honour said:175 The two December 2017 draft MCP instruments of Sino Iron and Korean Steel look to have been provided to Mineralogy by CPMM on a global basis – to accept and then submit to the Minister as a Co-Proponent for approval. There looks to have been no suggestion then, put to Mineralogy as to a possible negotiation over the content of these MCP instruments as received then, or their possible amendment in any respect, prior to a requested submission of them to the Minister. It looks to have been presumed by CPMM that Mineralogy would accept and adopt for itself the received MCPs, then submit them as a Co-Proponent, effectively unaltered, to the Minister for evaluation – in order for them to be accepted, once approved, to become additional proposals for the Sino Iron Project – under the regime of the State Agreement. The 2017 MCPs thus present as being drawn as global 'package' proposals as provided then to Mineralogy, without invitation in December 2017, to debate or negotiate over their content. 224 Similarly, in the context of the 2018 Tenure Request, the learned trial judge said:176 No suggestion of severance or divisibility in the additional tenure areas asked for was raised with Mineralogy by the 2016 or 2017 MCPs, or by the 29 March 2018 tenure request letter of Mr Zeng. All the underlying extra tenure areas (not just some) were said to be required of Mineralogy. They were pursued and sought from Mineralogy by this action as an indivisible tenure package – said to be needed to support the MCPs. The marketing of the reduced 2021 scope of the additional tenure claim directed against Mineralogy, as a mere 'narrowing of all the issues for trial', does not convincingly cover over what then was a retreat – by a significant truncation then in the additional tenure position earlier demanded of Mineralogy. 175 Primary reasons [65] - [67]. 176 Primary reasons [1045]. -- 75 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 76 225 His Honour made the same finding in relation to the 2021 Tenure Request:177 Likewise, Mr Chen Zeng's express request for extra tenure as received by Mineralogy at 29 March 2018, prior to commencement of this litigation, and even later, under the revised express tenure request issued by HSF at 29 November 2021 for extra tenure, was not a severable extra tenure request – as then presented to Mineralogy by it seeking individual component evaluations – concerning one or other of the discrete further tenure areas all sought in aggregate from Mineralogy at those times. All the areas were pressed for at these times from Mineralogy – as an inseparable tenure package. 226 The significance of these conclusions for the assessment of the CITIC parties' pleaded case was described by the learned trial judge as follows:178 [I]n the overall trial context of contended breached legal obligation(s) of Mineralogy for it to provide all of the requested additional tenure areas (and for no further monetary payment to it in return) because all that additional tenure was claimed and sought as being 'reasonably required' – the assessment by the Court as to a meeting of that threshold at the end, is a global one, not a several assessment, as to the individual extra tenure components. 227 As a consequence of the learned trial judge's findings (at [208] to [210] above), his Honour concluded that the failure to show that all the tenure components of the 2021 Tenure Request met the required standard of necessary, essential or critical, meant that the 2021 Tenure Request 'failed completely against Mineralogy in terms of it not being a reasonable request for consideration at that time'.179 Insufficient Technical Information 228 The learned trial judge also concluded that at the time of the 2021 Tenure Request, the CITIC parties had not provided Mineralogy sufficient technical information to enable proper consideration of that request. This was held by his Honour to be an additional basis for concluding that the 2021 Tenure Request was not a 'reasonable request'.180 177 Primary reasons [1296]. 178 Primary reasons [1297]. 179 Primary reasons [2462(u)]. 180 Primary reasons [2462(u)]. -- 76 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 77 229 The learned trial judge's findings in relation to technical information principally concerned the calculations in relation to the requirements for additional tailings storage facilities. 230 In that regard, his Honour referred to evidence given by Mr Goodwin, Deputy Chief Operating Officer of CPMM, in relation to the capacity of the proposed tailings facilities. In that context the learned trial judge said:181 This key question then came to be posed to Mr Goodwin and answered, at ts 2211: Now, if you have been, given your experience on the other side, receiving the MCP, it would have been soon apparent to you that the amount of tailings sought by the 2017 MCP was far in excess of what would be needed for two billion tonnes; you would agree with that?---If they had done those calculations that we had done now, yes. Reference followed to a spreadsheet prepared by Mr Goodwin, to which he had earlier referred (exhibit 1554) (albeit, mistakenly referred to as exhibit 1553 at ts page 2211). A series of questions ensued over whether provision of information of the kind contained within this spreadsheet calculation, showing the required TSF volume metric predictions had ever been provided to Mineralogy at the time of the MCP request of 2017 (it had not). Further questions followed over the level of information provided to Mineralogy for the December 2017 MCPs (exhibit 1688) and the limited information seen at par 5.2.4 of the 2017 MCP. Mr Goodwin was then asked whether what had been provided within the 2017 MCPs (seen at par 5.2.4) would have provided sufficient information to somebody in Mineralogy's position to enable that entity to decide whether the extra tailings area request was reasonable or not? In response, Mr Goodwin provided a long answer. But he concluded (at ts 2212) as follows: It's presumed that Mineralogy would know that tailings constituted two thirds of two billion tonnes. So that number should be known to them. But how that is distributed between height versus width versus breadth doesn't appear to be included in that. So you're talking then the volume – you would have to make some assumptions then. So if I was in Mineralogy's place in reading this, I would be asking for those numbers. Yes, you would really want to start with your spreadsheet, which was 1554, if you were Mineralogy, and then ask 181 Primary reasons [1476] - [1479], [1482] - [1483]. -- 77 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 78 questions once you understood the underlying calculations derived from the numbers; agreed?---Probably, yes. Well, if you were doing it on your side, you would definitely demand it, wouldn't you?---Yes. These candid and thoroughly credible responses by Mr Goodwin bear on a central underlying question – concerning the level of need for the extra tenure areas sought from Mineralogy for proposed further tailings storage facilities (TSF) areas and then, as to the level of provided technical information sufficient for Mineralogy to reach a decision upon such an additional tenure request – more particularly and relevantly, concerning the so-called 'Crescent' area within Mineralogy's G08/74 – as the eastern valley and wall components of an extended northern TSF. This issue carries considerable significance in the trial. … … Mr Goodwin's answers in response to this series of questions strongly suggest that absent the provision of such a level of supporting technical information, then viewed from the perspective of the entity putting the tenure request, that such a tenure request would not be reasonably made, without that information, or at least an offer to provide it. Further, from the counter perspective of the recipient of such a tenure request, that entity, objectively evaluated, would not act unreasonably in failing to accede to such a tenure request, by reason of the fundamental failure to provide it with the supporting technical information identified by Mr Goodwin. Like conclusions pertain for the 29 November 2021 HSF tenure request which, in effect, for TSF and WRD areas had repeated the tenure request made to Mineralogy for essentially the same additionally proposed TSF and WRD use tenure areas at the south. 231 The learned trial judge made similar observations in relation to the evidence of Mr Netterfield, an expert engineer called by the CITIC parties.182 232 Another matter of technical detail addressed by his Honour concerned the areas identified in the 2021 Tenure Request for which the request was for the grant of a new 'licence', rather than incorporation into the Site Lease Area. Those are the areas, referred to and depicted in [160] to [161] above, that are shaded in dark blue. 233 In relation to those areas, which were a change in the 2021 Tenure Request from the previous requests, the learned trial judge said that the feature was 'left largely unexplained about any underlying proposed 182 Primary reasons [1831]. -- 78 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 79 terms of a proposed temporary licence use sort under this fresh request for access to and use of the darker blue areas – on their suggested temporary basis'.183 234 His Honour continued:184 The events of 29 November 2021 were rushed and, viewed holistically, present as almost desperate. A revised tenure case with serious trial implications had only then emerged. The required level of detail about the use of non SLAs – to be used as temporary use licensed areas, was lacking. Referring to the terms of the MRSLAs about use areas is also an unsatisfactory substitute for a rational and calm dialogue to settle licence details for the Cape Preston Port areas. Greater licence term and propose use details towards laying down what was proposed to be the working parameters for access and use of licensed areas under the terms of a proposed licence was needed. That detail ought to have been provided to Mineralogy before a further action issued in December 2021. What was provided under the Annexure 11B map at 29 November 2021 by HSF was an opening basis for a negotiation to be conducted between the MRSLA parties with them mutually acting in good faith. They would then be expected to sensibly discuss and negotiate over the essential details for how an access or usage licence agreement – including its duration, payment to Mineralogy, interrelationship with third party port users, rights of priority and other issues requiring resolution to reach a certain outcome concerning the essential terms of those arrangements as proposed. That did not ever happen. 235 A final technical issue referred to by the learned trial judge was what he described as a 'disconformity' between the additional stockpile areas depicted in the 2017 MCPs and those depicted in the 2021 Tenure Request.185 Time to consider the 2021 Tenure Request 236 Related to the sufficiency of the technical information was his Honour's conclusion that Mineralogy were not given a reasonable time within which to consider the 2021 Tenure Request, before the CITIC parties commenced the fresh proceedings (CIV 2326 of 2021) in relation to that request. 183 Primary reasons [1081(c)]. 184 Primary reasons [1085] - [1087]. See also Primary reasons [1795]. 185 Primary reasons [1622], [2462(w)]. -- 79 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 80 237 As set out at [163] to [165] above, the 2021 Tenure Request was made by a letter from the CITIC parties' solicitors dated 29 November 2021, which required Mineralogy to agree to the request within 7 days, failing which the CITIC parties would commence the fresh proceedings. Those proceedings were commenced on 8 December 2021. 238 The learned trial judge concluded that this was, relevantly, unreasonable. His Honour said:186 [T]he insufficient time given for a sensible commercial engagement and a need for a provision of a lot more supporting technical documentation or at least for an offer of the timeous provision of all requested technical information sought – is a real problem for the CITIC plaintiffs' fall back tenure request case, howsoever framed, as a cause of action. As a result, the, in effect, 'last gasp' HSF efforts at late 2021 to rehabilitate the earlier scale of what had been extravagant tenure demands, down to a request for more modified extra tenure areas – issuing only at 29 November 2021 – in the end, was fatally compromised. That arose from not allowing enough time – in order for it to be assessed as a reasonably made request at the time it was made. Nor was the expected level of underlying supporting technical information, as was canvassed with Mr Netterfield in cross examination, provided or offered. It was unreasonable in that regard as well. 239 This led the learned trial judge to conclude that 'the second action had not, when commenced, allowed Mineralogy sufficient and therefore reasonable time to consider, discuss and then respond to the as - revised HSF tenure request made on behalf of Sino Iron and Korean Steel'.187 Grounds of appeal 240 The CITIC parties' grounds of appeal, which relevantly, challenge most (if not all) of the conclusions summarised above, are set out in Schedule 2 to these reasons. 241 Insofar as the request for additional tenure is concerned, many of the individual grounds of appeal are precursors to ground 14, which alleges that the learned trial judge should have held that the failure or refusal to agree to the 2017 MCP Tenure Request or the 2021 Tenure Request constituted a breach of one of the enumerated contractual terms summarised at [51], [68], [76], [81] and [87] above. 186 Primary reasons [1831]. 187 Primary reasons [2462(i)]. -- 80 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 81 242 As we will come to, each of grounds of appeal 1, 2, 6, 7, 8, 9, 10, 11, 12 and 13,188 in different ways, challenge different strands of the learned trial judge's reasoning toward the ultimate conclusion that Mineralogy was not in breach of contract in failing to agree to the requests for additional tenure. Ground of appeal 14 is the paramount ground. Ground of appeal 17 is, in turn, a consequential ground as to the appropriate relief in the event that the CITIC parties are successful in establishing, by ground 14, that the learned trial judge ought to have found that Mineralogy was in breach of contract in not agreeing to the requests for additional tenure. 243 The remaining grounds of appeal (ground 3, 5, 15, 16 and 18) are concerned with the failure of Mineralogy to submit the 2017 MCPs under the State Agreement or to make the re-purposing request (those grounds thus being apparently predicated on the success of one or more other grounds). 244 Those grounds also relate to the learned trial judge's reasoning as to the primacy of the tenure requests (see [181] to [184] above). In that regard, it may be noted that ground of appeal 3(b) contended that the learned trial judge erred in 'holding that the validity of the requests to submit the 2017 MCPs was dependent upon the validity of the requests for 'tenure''. At the hearing of the appeal, the CITIC parties did not press ground 3(b) and accepted that ground 3(c) could only succeed if grounds 1 or 2 were made out.189 The issue of the primacy of the tenure request, nevertheless, lingered in somewhat attenuated form in grounds 3(a) and 5. Broad overview of conclusions 245 Before turning to the grounds of appeal in detail, it is convenient that we set out the structure of the balance of these reasons, together with a broad overview of our conclusions in the appeal. 246 First, we have addressed the primacy of the tenure request; that is, the learned trial judge's conclusion that unless the CITIC parties were entitled to the additional tenure, Mineralogy was not obliged to submit the 2017 MCPs. In our view, the learned trial judge was correct to so conclude. That conclusion disposes of what remains of ground 3(a) and ground 5 which is, strictly, unnecessary to decide. 188 While ground of appeal 8 is principally concerned with the divisibility of the 2017 MCPs, the particulars focus on the 'divisibility' of the 'implicit tenure request contained in them'. 189 Appeal ts 31. The CITIC parties also initially did not press ground 3(a), but formally 'withdrew' the 'non-pressing' of ground 3(a) on the second day of the hearing (see appeal ts 131 - 132). -- 81 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 82 247 As a consequence, unless the CITIC parties are successful in establishing that the learned trial judge ought to have found that Mineralogy was in breach of contract in not agreeing to the requests for additional tenure, the grounds of appeal concerned with the submission of the 2017 MCPs or the re-purposing request (grounds 3(c), 15, 16 and 18) do not arise. 248 Secondly, we have addressed the contractual terms relied upon by the CITIC parties in support of their alleged entitlement to the additional tenure and whether, contrary to the learned trial judge's conclusions, Mineralogy was in breach of those terms by failing to agree to the alleged 2017 MCP Tenure Request or the 2021 Tenure Request. 249 In that context, we have addressed the need to focus upon the particular contractual terms identified in ground 14, rather than substituting those terms with concepts or expressions outside the contractual provisions, and to apply those terms to all of the particular circumstances of the case. In this regard, it is necessary to consider the various subsidiary issues addressed in grounds of appeal 1, 2, 6, 7, 8, 9, 10, 11, 12 and 13 (as they relate to the contractual terms) in combination, rather than as entirely separate issues. Those grounds have therefore been addressed in the context of the consideration of the particular contractual terms relied upon by the CITIC parties. 250 One issue we have addressed as a preliminary matter, however, is the 'pleading point' discussed at [200] to [205] above in relation to the standard against which to determine whether the additional tenure was 'reasonably required' (grounds 6 and 7). As to that issue, in our view, the learned trial judge was correct to conclude that the CITIC parties had pleaded and conducted their case on the basis that the additional tenure sought by them was 'necessary', 'critical', or 'essential' for the Project. Grounds 6 and 7 have, therefore, not been made out. As anticipated by the learned trial judge, however, it is still possible to consider the application of various contractual terms on the basis of his Honour's alternative findings. 251 In relation to the contractual terms relied upon by the CITIC parties our conclusions are broadly as follows. -- 82 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 83 252 Given its position at the 'apex' of the suite of agreements relating to the Sino Iron Project,190 we have commenced with the express terms of the State Agreement. 253 The CITIC parties relied upon the obligation in the State Agreement on Mineralogy, Sino Iron and Korean Steel to ensure continuous operation of the Project (in cl 7(6) and cl 8(2)). In our view that obligation did not, itself, operate to require Mineralogy to grant the additional tenure (on the terms required by the CITIC parties). That obligation is jointly owed to the State by Mineralogy, Sino Iron and Korean Steel (as Project Proponents). In the absence of a failure to co-operate, or act in good faith, to discharge that joint obligation, in our view, cl 7(6) and cl 8(2) did not give rise to an obligation on the part of Mineralogy to agree to grant the additional tenure on the terms required by the CITIC parties. Such an obligation would undermine the mutuality of the obligations in cl 7(6) and cl 8(2). Ground 14(a) is not made out. 254 Logically the next contractual terms relied upon by the CITIC parties to address are the terms of the MRSLAs, as it is the Site Lease Area under those agreements that is sought to be expanded by the request for additional tenure. Were there a contractual entitlement to additional tenure, the terms of the MRSLAs is where one would, at least in the first instance, expect to find it. 255 The principal terms of the MRSLAs relied upon by the CITIC parties were the MRSLA Implied Necessary Tenure Term and the express obligation of good faith in cl 37.4. 256 The MRSLA Implied Necessary Tenure Term, being a term that would specifically require Mineralogy to grant to Sino Iron and Korean Steel such tenure as they reasonably required from time to time, would provide the most immediate route to success for the CITIC parties. Like the learned trial judge, however, in our view the MRSLAs, properly construed, did not contain the MRSLA Implied Necessary Tenure Term. That term was not obvious or necessary for business efficacy and, in our assessment, inconsistent with the MRSLAs as a whole. Ground 14(c) is not made out. 257 Nor, in our view, was the failure of Mineralogy to accede to either the alleged 2017 MCP Tenure Request or the 2021 Tenure Request in 190 Mineralogy Pty Ltd v Sino Iron Pty Ltd [2017] FCAFC 55 (Mineralogy Pty Ltd v Sino Iron Pty Ltd (FCAFC)) [222] (Besanko, McKerracher & Beach JJ). -- 83 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 84 breach of the express obligation of good faith in cl 37.4 of the MRSLAs (or with any implied terms of good faith and mutual co-operation). In that regard, while the CITIC parties relied upon implied terms of good faith and mutual cooperation in all of the pleaded agreements,191 their submissions did not draw a distinction between the operation of those term but rather relied upon their combined effect with the express obligation of good faith in the MRSLAs. That is, the CITIC parties did not contend that any different result could flow from the various pleaded implied obligations of good faith and mutual co-operation, than that from the express obligation of good faith in cl 37.4 of the MRSLAs and the obligation of mutual co-operation implied by law into those agreements. Those obligations can all be addressed together. 258 In the circumstances of the present case, the mutual obligation of good faith would, at most, have required Mineralogy to give real and genuine consideration to, and confer with the CITIC parties concerning, a request for additional tenure for the purposes of the Project. What that obligation of good faith requires in relation to any particular request depends upon the nature of the request and the circumstances as a whole. The obligation of good faith, however, could not, save in the most exceptional of cases, actually require Mineralogy to grant Sino Iron and Korean Steel additional tenure under the MRSLAs. That obligation (together with any implied obligations of good faith or mutual co-operation) did not oblige Mineralogy to grant the additional tenure in response to either the alleged 2017 MCP Tenure Request or the 2021 Tenure Request. 259 In that context, the following matters are relevant to that conclusion: (a) the 2017 MCPs were indeed presented to Mineralogy as an entire package, as were the various requests for additional tenure (contrary to grounds 8 and 9); (b) while it was clear, from the 2017 MCPs, that they contemplated the use of significant areas over which the CITIC parties had no tenure, the CITIC parties did not 'request' any additional tenure until the 2018 Tenure Request. On the contrary, the CITIC 191 Namely, the State Agreement Implied Good Faith Term, the State Agreement Implied Co-operation Term, the MRSLA Implied Good Faith Term, the MRSLA Implied Co-operation Term, the Takeover Agreements Implied Good Faith Term, the Takeover Agreements Implied Co-operation Term, the Direct Agreement Implied Good Faith Term, the Direct Agreement Implied Co-operation Term, the FCD Implied Good Faith Term and the FCD Implied Co-operation Term. -- 84 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 85 parties' requests to submit the 2017 MCPs appear to assume an entitlement to those areas; (c) it was Mineralogy who identified the need for the CITIC parties to acquire additional tenure for the purposes of the 2017 MCPs and sought to engage with the CITIC parties in relation to that issue. The issue raised by Mineralogy was a legitimate one for it to raise in the circumstances. The CITIC parties did not have an automatic entitlement to additional tenure, with or without consideration; (d) until the 2018 Tenure Request, the CITIC parties ignored Mineralogy's correspondence to the effect that the CITIC parties would need additional tenure if they wished to pursue the 2017 MCPs; (e) the 2018 Tenure Request, while formally a 'request' for the expansion of the Site Lease Area, was presented as something of a fait accompli in relation to which there could be little question. It did not engage with the issue raised by Mineralogy as to the CITIC parties' alleged entitlement to additional tenure; (f) the 2018 Tenure Request itself was, as the learned trial judge concluded, 'excessive and extravagant'. That claim was maintained until the amendments to the Statement of Claim in late 2021; and (g) the 2021 Tenure Request was not one which Mineralogy, acting in good faith, was required to accept, including by reason of the terms of the request (contrary to grounds 10, 11 and 12). 260 Accordingly, grounds 14(d), (e) and (f) are not made out. 261 Nor was Mineralogy in breach of the remaining express contractual terms relied upon by the CITIC parties, namely the 'reasonable assistance' terms of the Takeover Agreements. 262 The obligation in the Takeover Agreements for Mineralogy to provide the CITIC parties 'reasonable assistance' to progress the development of the Project, did not oblige Mineralogy to grant the additional tenure on the terms required by the CITIC parties. On their proper construction those terms required Mineralogy to provide 'assistance' at the CITIC parties' cost, or following commercial terms agreed between the parties. They did not require Mineralogy to agree to -- 85 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 86 grant additional tenure on the terms required by the CITIC parties. Ground 14(b) is not made out. 263 On the basis of these conclusions, the learned trial judge's rejection of the CITIC parties' claim that Mineralogy was in breach of contract in failing to agree to the requests for additional tenure was correct. Accordingly, the consequential ground in relation to the relief sought as to the additional tenure (ground 17) also fails. 264 For those reasons, the grounds of appeal concerned with the submission of the 2017 MCPs and the re-purposing request (grounds 3(c), 15, 16 and 18) do not arise and are unnecessary to consider. 265 We turn then to our reasons for these broad conclusions. Primacy of the tenure requests 266 Commencing with the primacy of the tenure requests, as noted above, the learned trial judge concluded that, unless the CITIC parties were entitled to, and were granted, the additional tenure, Mineralogy was not obliged to submit the 2017 MCPs (see [181] to [182] above). The CITIC parties did not ultimately challenge that conclusion in the appeal. While ground 3(b) did challenge his Honour's conclusion that the validity of the requests to submit the 2017 MCPs was dependent upon the requests for additional tenure, that ground was not pressed at the hearing of the appeal (see [244] above). 267 Ground 3(a), which challenged the learned trial judges conclusion that 'the principal and first issue to be determined' was the validity of the requests for additional tenure, was maintained on appeal, but only for the purpose of maintaining their submissions 'as to the intimate relationship between tenure requests and MCP requests'.192 The CITIC parties did not cavil with the approach taken by the learned trial judge that an entitlement to additional tenure was logically antecedent to an entitlement to the submission of the 2017 MCPs (even if those processes could have occurred simultaneously and not in chronological succession). 268 In this respect the concession of the CITIC parties was, in our view, clearly correct. As a practical matter, a proposal under the State Agreement would not be approved (or at least not approved unconditionally), unless the particular Project Proponent (or Proponents) is lawfully entitled to use the land the subject of the 192 Appeal ts 131. -- 86 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 87 proposal for the purposes of the Project. In this regard, we accept the general scheme of the State Agreement is that the approval of proposals deals primarily with the activities to be carried out on tenure otherwise granted.193 269 That general scheme is reflected in cl 29 of the State Agreement, which requires Mineralogy to warrant, at the time of the submission of any proposals, that Mineralogy and any Co-proponents have reached agreement in relation to 'access to or use of any lands granted to [Mineralogy] hereunder or existing mining leases or further mining leases'. 270 As noted at [183] above, the learned trial judge referred to cl 29, almost in passing, as creating a difficulty for Mineralogy in submitting the 2017 MCPs as it would then have warranted to the State that there was an agreement between it and the Project Proponents over the permitted use of the additional tenure. We say, 'almost in passing' because the effect of cl 29 does not appear to have been directly relied upon by the learned trial judge as a basis for dismissing the CITIC parties' claims (although his Honour certainly regarded it as relevant context). 271 By ground 5, the CITIC parties contended that the learned trial judge erred in his references to cl 29 of the State Agreement on the basis that the areas of additional tenure were not 'lands granted to [Mineralogy under the State Agreement] or existing mining leases or further mining leases' and, so, were not the subject of cl 29. In short, the CITIC parties submitted that the general purpose leases the subject of the requests for additional tenure were granted under the Mining Act, rather than the State Agreement and so were not granted 'hereunder' within the meaning of cl 29.194 272 Mineralogy submitted that the CITIC parties' construction of cl 29, and in particular the word 'hereunder', was narrow and pedantic. It submitted that the expression was intended to cover all land 'subject to' or 'governed by' the State Agreement, including the tenements in Area A.195 Such a construction, Mineralogy submitted, is consistent with the evident purpose of the provision, namely, to give the State confidence, when considering proposals, that 'essential components like access to 193 Appeal ts 560. 194 Appellants' Submissions [45] - [51]. (WAB 43 - 45). 195 First Respondent's Submissions [50]. (WAB 181). -- 87 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 88 tenure' have been dealt with.196 The State also submitted that this broader construction of cl 29 was more consistent with the contractual purpose of avoiding 'the State having to look into the arrangements between Mineralogy and various co-proponents before approving proposals'.197 273 There is, in our view, much to be said for the broader construction of cl 29 supported by Mineralogy and the State. It is clearly an ambulatory provision intended to provide certainty for the State in its dealings with the Proponents. Ultimately, however, it is not necessary to finally decide the precise scope of cl 29. Whether Mineralogy was required to provide a warranty to the State pursuant to cl 29, it remained the case that the practical reality was that the formal submission of the 2017 MCPs was premature, and would not have been approved (or at least unconditionally approved), in the absence of an entitlement by the CITIC parties to conduct the activities on the additional tenure. 274 This point was not only made by the State in its submissions in the appeal;198 the need for the CITIC parties to secure the additional tenure had been communicated to them by the Department of State Development prior to the provision of the 2016 MCPs (see [95] above). 275 For these reasons, in our view grounds 3(a) and 3(b) are not made out. The learned trial judge was correct to hold that unless the CITIC parties were entitled to the additional tenure, or the parties reached an agreement in that regard, Mineralogy was not obliged to submit the 2017 MCPs. That conclusion did not depend upon whether cl 29 applied to the additional tenure. Ground 5 is unnecessary to decide. 276 We turn then to the CITIC parties' claim in contract for the additional tenure. Contractual terms Preliminary observations 277 In addressing the CITIC parties' claim to a contractual entitlement to the additional tenure, we have adopted a different structure to that employed by the learned trial judge. 196 Appeal ts 505 - 506. 197 Appeal ts 563. 198 Appeal ts 564. -- 88 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 89 278 In that regard, his Honour's reasons tended to approach the contract case by focussing generally on issues that his Honour regarded as defeating the contract case as a whole, rather than addressing the particular terms relied upon by the CITIC parties, arriving at a proper construction of those terms and applying that construction to the facts of the case. 279 The clearest example of this is the learned trial judge's approach to the 'no consideration issue'. As set out above,199 his Honour, in effect, posed the question as to whether any of the contractual terms could require Mineralogy to provide additional tenure for no consideration (i.e. 'for free'). Ultimately, of course, his Honour concluded that they did not, and that the contract claim was defeated on that basis. Nevertheless, while that ultimate conclusion was, in our view, correct, it meant that his Honour did not always squarely address what the particular contractual terms did require and, in particular, whether they conferred a right to additional tenure at all. 280 That approach meant that, on occasion, the Primary reasons are left pregnant with the possibility that, perhaps, the conclusion might have been different if the requests for additional tenure had been accompanied by an agreement to pay valuable consideration for that additional tenure. 281 The effect of that approach meant, for example, that a number of the grounds of appeal proceed upon an assumption of such an entitlement. Grounds of appeal 1 and 2, for example, read as if the MRSLAs (and other agreements) otherwise conferred an entitlement to tenure reasonably required by Sino Iron and Korean Steel, and that the only question was whether Mineralogy was entitled to receive reasonable remuneration in return. 282 To focus only on whether the MRSLAs reveal an 'entitlement to further remuneration' for additional tenure, however, rather puts the cart before the horse. Unless the CITIC parties have a contractual entitlement to additional tenure simpliciter, the question as to the terms upon which such an entitlement exists does not arise. 283 Another respect in which the Primary reasons, at least in their overall structure, tend (with respect) to divert attention from the various contractual terms themselves is in their treatment of the expression 'reasonably required'. The learned trial judge made many findings – 199 See [186] - [195] above. -- 89 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 90 according to different potential meanings of the phrase – as to whether the additional tenure was 'reasonably required' and, indeed, a pleading point arose in relation to that issue. 284 It was, of course, entirely proper for his Honour to make the factual findings that he did; the pleaded case squarely put in issue whether the additional tenure was 'reasonably required' for the purposes of the Project. Nevertheless, the effect of that focus rather suggested that there was a particular contractual term to the effect that the CITIC parties had a specific contractual entitlement to additional tenure where it was 'reasonably required'. 285 In truth, however, other than the alleged MRSLA Implied Necessary Tenure Term, none of the contractual terms relied upon by the CITIC parties (cl 7(6) and 8(2) of the State Agreement, the Takeover Agreements Assistance Terms, cl 37.4 of the MRSLAs, or the various implied good faith and mutual co-operation terms) expressly included an entitlement to tenure 'reasonably required'. The alleged MRSLA Implied Necessary Tenure Term, of course, did use that expression, but that was a term to be established on the evidence (as an ad hoc term); it was not an express contractual standard. 286 We recognise, of course, that Recital E to the MRSLAs does use the expression 'reasonably requires'. This, however, underscores the point. Recital E was not, and was not suggested to be, a contractual entitlement. The use of the expression 'reasonably requires' (unless it forms the basis for an implied term), does not thereby become the 'contractual standard' for the rights of the parties. Nor can it be a priori assumed that 'reasonably required' is a contractual standard. 287 This leads conveniently to grounds 6 and 7. 'Reasonably Required' – grounds 6 and 7 288 As summarised above,200 the learned trial judge concluded that the CITIC parties were bound by what his Honour concluded was their pleaded case that the additional tenure requested of Mineralogy was 'reasonably required' in the sense that those areas were 'necessary', 'critical', or 'essential' for the Project. His Honour concluded that that threshold would not be met by a request for tenure areas merely by some perception as to the future utility of the acquisition, or which were 200 See [200] - [205] above. -- 90 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 91 evaluated for Sino Iron and Korean Steel as merely 'desirable' areas to hold or use. 289 Grounds 6 and 7 challenge his Honour's finding in this regard. Tellingly, ground 6 contends that the learned trial judge erred because his Honour 'should have applied the contractual standard, being whether the areas were "reasonably required"'. 290 Building on this notion in its submissions in the appeal, the CITIC parties emphasised that 'reasonably required' was the contractual standard it relied upon and, citing Godecke v Kirwan,201 that that phrase is a 'familiar objective standard'. Developing the argument further, the CITIC parties submitted that the references in the particulars to the Statement of Claim to the additional tenure (and indeed the approval of the 2017 MCPs) being 'critical' or 'necessary', did not constrain or alter the cause of action which was based on the contractual standard of 'reasonably required'.202 291 The difficulty with this submission is that the causes of action at trial went well beyond a contractual term that actually incorporated a standard of 'reasonably required' (i.e. the MRSLA Implied Necessary Tenure Term) and indeed included causes of action that went beyond the claim in contract, such as the claims in estoppel (both by representation and by convention) and for unconscionable conduct. 292 As the learned trial judge recognised, the pleadings in relation to all four causes of actions (implied term, estoppel by representation, conventional estoppel and unconscionable conduct):203 display a 'reasonably required' additional tenure common thread used to frame Mineralogy's alleged additional tenure provision obligations. This explains the CITIC plaintiffs' recurring pleaded references to the further tenure areas that Sino Iron and Korean Steel 'reasonably require', or are 'reasonably required' from Mineralogy. 293 So understood, the CITIC parties' pleaded case, insofar as it contended that the additional tenure was 'reasonably required' for the Project was not solely, or even primarily, focussed on a contractual standard entitling the CITIC parties to any additional tenure that was 'reasonably required'. Rather, the CITIC parties' pleaded case was 201 Godecke v Kirwan (1973) 129 CLR 629 (Godecke v Kirwan). See Appellant's Submissions [52] - [66]. (WAB 45 - 49). Godecke v Kirwan appears not to have been referred to at trial. 202 Appeal ts 175 - 176. The CITIC parties, in this context, relied upon Mummery v Irvings Pty Ltd (1956) 96 CLR 99. 203 Primary reasons [446]. -- 91 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 92 directed towards establishing an entitlement to that tenure based on factual allegations as to the importance of both the 2017 MCPs and the additional tenure to the continuation of the Project. 294 Those factual allegations were to the effect that the proposals in the 2017 MCPs (which in turn depended upon the additional tenure) were 'critical' to the continuation of the Sino Iron Project. The particulars to paragraph 141 of the Statement of Claim, for example, alleged: In relation to each sub-paragraph above, the plaintiffs rely upon the following facts, matters and circumstances: … (v) the infrastructure, facilities and activities proposed in the 2017 MCPs are critical to enable: (A) Mineralogy, Sino Iron and Korean Steel to fulfil their obligations under the State Agreement to implement the Approved Proposals and ensure continuous operation of the Sino Iron Project, pleaded in paragraph 36 above; (B) each of Sino Iron and Korean Steel to continue to exercise the mining, production, export and land use rights referred to in sub-paragraphs (i), (ii) and (iii) above; and (C) Sino Iron and Korean Steel to avoid suspension of the operation of the Sino Iron Project; (vi) in particular: (A) the extension of the mine pit to the west is critical to enable Sino Iron and Korean Steel to be able to continue mining operations; (B) the increase to tailings capacity is critical to enable Sino Iron and Korean Steel to continue to store tailings generated by processing operations; (C) the increase to waste storage capacity is critical to enable Sino Iron and Korean Steel to continue to store waste rock generated by mining operations; (D) the increase to capacity of stockpiles and infrastructure at the port terminal facility is critical to enable Sino Iron and Korean Steel to continue processing or export -- 92 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 93 operations during disruptions, including from weather, breakdown or maintenance; (E) the construction of the new infrastructure corridors is critical to: (I) provide power, water and road access to the airstrip which provides safe and efficient transport of the workforce to the Sino Iron Project; and (II) provide power and water to an accommodation village for the Sino Iron Project workforce; (F) the construction of a permanent accommodation village on the approved site of the Port Construction Village is critical to alleviate ongoing fatigue management and health and safety issues for the Sino Iron Project workforce located at Cape Preston; (G) the relocation of the Fortescue River Road is critical to allow continued and safe public access to the Fortescue River mouth and the construction of waste rock land forms; (emphasis added) 295 These particulars were incorporated, by reference (together with all of the particulars in paragraph 141 of the Statement of Claim), as particulars of the entitlement to all of the pleadings alleging a contractual entitlement to the additional tenure (including paragraphs 151, 152, 154A, 154B and 156). Those pleadings did not distinguish between the bases upon which the facts alleged in the particulars were said to support the allegations that each of the various contractual terms had been breached. Those allegations, accordingly, had to be understood as providing the factual basis for establishing a breach of all of those disparate contractual terms. 296 In that context, in our view, it becomes clear that the factual allegations made by the CITIC parties in the Statement of Claim under the broad rubric of the expression 'reasonably required' were not confined to establishing the breach of a contractual term in precisely those terms, but to an independent factual allegation said to support a range of disparate legal standards. 297 In short, and as the learned trial judge correctly approached the matter, the meaning to be given to the expression 'reasonably required' -- 93 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 94 was not so much a matter of contractual construction (as the CITIC parties would now have it on the appeal) but a matter of identifying the nature of the CITIC parties' pleaded factual case, a case which extended beyond any specific contractual term. 298 Again, once that is understood, it can readily be seen why the CITIC parties' pleaded case was pitched at the level that it was, namely that the additional tenure and the 2017 MCPs were 'critical'. 299 For example, one of the bases upon which the CITIC parties pleaded that Mineralogy was obliged to submit the 2017 MCPs and to grant the additional tenure, was the obligation in cl 7(6) and cl 8(2) of the State Agreement that the Project Proponents 'ensure continuous operation of the Project'. In that context, it can readily be seen why the CITIC parties would plead that the additional tenure was 'critical' or 'necessary' for the continuation of the Project, rather than some lesser impact which may not affect the continuation of the Project. 300 Similarly, the obligation of good faith (principally in cl 37.4 of the MRSLAs), upon which the CITIC parties placed significant emphasis in the appeal, was (as we will come to later) an obligation concerned with honesty and fair dealing, having regard to the interests of the parties. It is not concerned merely with what one party might 'reasonably request' (in the sense that to grant the request will be beneficial to it in some way) but with the honesty, reasonableness and fidelity of the party presented with the request. In that context, it can readily be understood why the pleading would allege that the request is 'critical' or 'necessary' to the benefit of the contract. 301 Likewise, as the learned trial judge observed, the recurrent use of the label 'necessary' in relation to key terms in the Statement of Claim supported the conclusion that the CITIC parties were alleging that the tenure they sought was 'necessary' for the continuation of the Sino Iron Project.204 In particular, his Honour observed that the key defined term 'Further Necessary Tenure Request'205 supported Mineralogy's interpretation of the Statement of Claim.206 The contention that further areas of tenure were 'necessary' was repeated in the labelling of other tenure terms in the Statement of Claim, such as 'MRSLAs Implied 204 Primary reasons [373] - [374], [777]. 205 Statement of Claim [147]. 206 Primary reasons [373] - [374]. -- 94 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 95 Necessary Tenure Terms'207 and the heading 'Requests for further necessary tenure'.208 302 As the learned trial judge properly found, the deliberate use of the word 'necessary' in the title of these terms provided direct insight, vis-à-vis tenure issues, into how the CITIC parties advanced their pleaded case.209 303 While it may readily be accepted, as submitted by the CITIC parties, that pleadings and particulars have different functions, and that a disconformity between evidence and particulars will not necessarily disentitle a party to a verdict based on the evidence, particulars nevertheless perform an important function in affording each party procedural fairness. Particulars put a defendant on guard as to the factual case they have to meet so that they are not taken by surprise at trial, and narrow the width of the pleading. Thus, in general, the notion that relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness.210 304 As Gibbs J also said in Bailey v Federal Commissioner of Taxation:211 Particulars fulfil an important function in the conduct of litigation. They define the issues to be tried and enable the parties to know what evidence it will be necessary to have available and to avoid taking up time with questions that are not in dispute. On the one hand they prevent the injustice that may occur when a party is taken by surprise; on the other they save expense by keeping the conduct of the case within due bounds. 305 These issues of procedural fairness were, in our view, engaged in the present case. A reasonable reader of the Statement of Claim would conclude, as Mineralogy and the learned trial judge did, that the CITIC parties were intending by the particulars to give substance and meaning to the factual case that they alleged would support all of the causes of action that they pleaded (both in contract and otherwise). 306 In that regard, in our assessment, this element of the CITIC parties' case obviously had a practical impact on the way in which Mineralogy conducted its case. That is clear from the cross-examination of the 207 Statement of Claim [52]. 208 Statement of Claim [147]. 209 Primary reasons [777]. 210 Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279, 286 (Mason CJ & Gaudron J). 211 Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214, 219 (Gibbs J). -- 95 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 96 CITIC parties' witnesses. The cross-examination of Mr Netterfield, for example, involved establishing what parts of the 2017 MCPs he genuinely thought were 'necessary' or 'critical', as opposed to simply being reasonable or desirable.212 So too did the cross-examination of Mr Goodwin, who, for example, gave evidence that the proposed access corridors to the airport addressed 'an inefficiency but that does not make it critical, no'.213 307 In our view it is clear, from the transcript of evidence of Mr Goodwin, that his evidence to the effect that components of the 2017 MCPs as amended by the Further Necessary Tenure Request and the November 2021 Tenure Request were 'desirable' or beneficial or similar was not challenged by Mineralogy. That Mineralogy did not do so can only be understood on the basis that it was not required to meet a case that it was obliged to submit the 2017 MCPs merely because the 2017 MCPs, or their functional components, were from the CITIC parties' perspective alone, efficient or desirable. 308 Similarly, Mineralogy called no evidence to rebut a potential finding that the 2017 MCPs, the 2018 Tenure Request (as it related to the MCP Subset of Requested Areas) or the 2021 Tenure Request would further the efficiency of the Sino Iron Project or were desirable for the purposes of the Project. Whether Mineralogy would have called evidence, or addressed the points it could have raised about the efficient and economic operation of the Project through cross-examination, would have been a matter for forensic decision by Mineralogy at trial. 309 In those circumstances, the CITIC parties having particularised its claim that the additional tenure was 'critical' to enable the purposes specified in the particulars to paragraph 141 of the Statement of Claim, the learned trial judge did not err in holding the CITIC parties to those particulars. 310 If his Honour had allowed the late departure from the evidentiary case put by the CITIC parties in their particulars this would (in the absence of an amendment to the particulars and an invitation to Mineralogy to reopen) have led to a forensic disadvantage to Mineralogy and resulted in a denial of procedural fairness. 311 Grounds 6 and 7 have not been made out. 212 Trial ts 2427 - 2432. 213 Trial ts 2253; see also 2251 - 2254. See in this context the learned trial judge's observations at Primary reasons [1534] - [1536]. -- 96 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 97 Legal principles – contractual construction 312 Before turning to the particular contractual terms relied upon by the CITIC parties, the principles of contractual construction may be briefly stated. Those principles are well settled and were summarised in this Court in Black Box Control Pty Ltd v TerraVision Pty Ltd,214 to include the following: (a) the construction of a contract involves a determination of the meaning of the words of the contract by reference to its text, context and purpose. The starting point for the proper construction of a clause is the language used in the clause. In particular, one starts by identifying the possible meanings that the words chosen by the parties can bear; (b) the process of construction is objective. Ascertaining the meaning of terms in an instrument requires a determination of what a reasonable person would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract, and the commercial purpose or objects to be secured by the contract; (c) the commercial purpose or objects sought to be secured by the contract will often be apparent from a consideration of the provisions of the contract read as a whole. Extrinsic evidence may nevertheless assist in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding of the genesis of the transaction, its background, the context and the market in which the parties are operating; (d) the instrument must be read as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed to have some operation; and (e) the general principle applicable to the construction of commercial contracts is that they should be given a businesslike interpretation. Absent a contrary intention, the court approaches such contracts on the basis that the parties intended to produce a result which makes commercial sense. This requires that the construction placed on the term or terms in question is 214 Black Box Control Pty Ltd v TerraVision Pty Ltd [2016] WASCA 219 [42] (Newnes JA, Murphy JA & Beech J). -- 97 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 98 consistent with the commercial object of the agreement. However, it must also be borne in mind that business commonsense may be a topic on which minds may differ. 313 As we will come to later, one issue raised by this appeal is whether the MRSLAs contained a particular implied term, namely, the MRSLA Implied Necessary Tenure Term. As the authorities make clear, that issue is a question of construction of the MRSLAs. As this Court said in Pilbara Iron Ore Pty Ltd v Ammon:215 The task of determining whether a contract contains terms implied by law or in fact (to give business efficacy to the contract) is undertaken in order to ascertain the meaning and effect of the contract as a whole and is thereby an exercise in construction. Nevertheless, the process of implication is not one of 'interpretation' in the narrow sense, in that it does not involve assigning a meaning to a particular express provision in the contract. Rather, an implied term in fact (to give business efficacy to the contract) is a term that the parties have not actually agreed upon, but which, it is presumed, the parties would have agreed upon had they turned their minds to it. For reasons which include not rewriting the contract for the parties, the courts are slow to imply a term. The party alleging that a term should be implied bears the onus of proof. The more detailed and comprehensive the contract the less ground there is for supposing that the parties have failed to turn their minds to address the question in issue. (references omitted) 314 The process of implying a term in fact engages the cumulative (but related) criteria identified by the Privy Council in BP Refinery and adopted in Codelfa. The implied term must be:216 1. Reasonable and equitable. 2. Necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it. 3. So obvious that it 'goes without saying'. 4. Capable of clear expression. 5. Consistent with, and not contradict, any express term of the contract. 215 Pilbara Iron Ore Pty Ltd v Ammon [2020] WASCA 92 (Pilbara Iron v Ammon) [88] (Buss P, Murphy & Vaughan JJA), citing Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 (Codelfa), 345 - 346 (Mason J); Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 (Barker) [22] (French CJ, Bell & Keane JJ). 216 Pilbara Iron v Ammon [91] (Buss P, Murphy & Vaughan JJA), citing BP Refinery, 283; Codelfa, 347 (Mason J). -- 98 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 99 315 In light of these legal principles, we turn to the first of the provisions relied upon by the CITIC parties: cl 7(6) and cl 8(2) of the State Agreement. Continuous operation of the Project – ground 14(a) 316 The CITIC parties contended that Mineralogy was obliged to grant the additional tenure (on the terms required by the CITIC parties) pursuant to the obligation in the State Agreement of the Project Components to 'ensure continuous operation of the Project' (State Agreement, cl 7(6) and cl 8(2)).217 317 The learned trial judge's conclusions in relation to this obligation rested heavily on the 'no consideration' issue and on what his Honour described as the generality of the obligations to implement approved proposals and ensure continuous operation of the Project. His Honour said, for example:218 But this generality of expression is not enough by itself to deliver a contractually based seriously compulsive tenure provision and acquisition obligation – for obtaining of additional tenure from Mineralogy as is sought to be proved – let alone for no greater additional payments to Mineralogy in return. There is no suggestion to be found in the trial evidence that CITIC, as an international corporate goliath, if it were so minded, could not afford to pay a reasonable sum to Mineralogy for what might independently be ascertained as the fair or market value for the extra tenure areas sought – if such a payment were the sole obstacle to an attainment of extra tenure areas for the Sino Iron Project from Mineralogy. 318 To similar effect, the learned trial judge later concluded:219 Nor does cl 7(6) of the State Agreement sufficiently assist the CITIC plaintiffs' arguments, on my assessment. The subclause displays a mutual promise by Mineralogy made along with Sino Iron and Korean Steel to the State – to implement approved proposals and to ensure the continuous operation of the Sino Iron Project. But that promise to the State is not inconsistent with a making of a negotiated payment to Mineralogy in return for it providing additional tenure sought for the Sino Iron Project and that is otherwise available to meet such ends. … 217 See [46] - [47] above. Clause 8(2) of the State Agreement simply applies the obligations in cl 7(6) with respect to 'approved proposals' to 'additional proposals'. It is convenient, in what follows to refer to the obligations in cl 7(6) only, on the basis that those references include the operation of cl 8(2). 218 Primary reasons [836] - [837]. 219 Primary reasons [1018], [1020]. -- 99 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 100 A continuous operation of the Sino Iron Project may still be ensured by Sino Iron and Korean Steel (through CITIC, their abundantly wealthy ultimate parent corporation) remunerating Mineralogy by a negotiated price arrived at in a good faith negotiation – in return for any extra tenure areas that are shown to be legitimately needed for the purpose of supporting the Sino Iron Project into the future. 319 As is apparent from this passage, his Honour described the obligations in cl 7(6) as a 'promise to the State' and, at the hearing of the appeal, Mineralogy submitted that, ultimately, cl 7(6) is 'a covenant to the State'.220 The CITIC parties challenged that characterisation of the obligations in their submissions as being inconsistent with the decision of the Full Court of the Federal Court in Mineralogy Pty Ltd v Sino Iron Pty Ltd (FCAFC). The CITIC parties contended that the obligations are also owed 'by each proponent to the other'.221 320 It is convenient then to commence with the proper construction of cl 7(6) of the State Agreement. Construction of cl 7(6) of the State Agreement 321 Clause 7(6) of the State Agreement was considered by the Federal Court, at first instance by Edelman J (in Mineralogy (No 6)) and by Besanko, McKerracher and Beach JJ on appeal (in Mineralogy Pty Ltd v Sino Iron Pty Ltd (FCAFC)) in the context of a dispute over the facilities at the port at Cape Preston (Port proceedings). 322 It is necessary to provide some context to the Port proceedings. 323 The primary issue in the Port proceedings was whether Mineralogy had validly terminated the Facilities Deeds. Mineralogy alleged that it had terminated the Facilities Deeds following the issue of termination notices for alleged breaches of the Deeds. Mineralogy was unsuccessful in those claims. That aspect of the Port proceedings may be put to one side. 324 Mineralogy, however, also brought an alternative case in the Port proceedings, to the effect that, on their proper construction, the Facilities Deeds 'gave control of the operation of the port to Mineralogy'.222 Mineralogy relied, in particular, upon cl 24(a1) and cl 24(b) of the Facilities Deeds, the terms of which are not material for present purposes. 220 Appeal ts 510. 221 Appeal ts 575. 222 Mineralogy (No 6) [31] (Edelman J). -- 100 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 101 325 Both Edelman J223 and the Full Court224 rejected Mineralogy's construction of the Facilities Deeds. Mineralogy's alternative claim to the control of the operation of the port failed on that basis. 326 The relevance of cl 7(6) of the State Agreement in the Port proceedings was that it provided an alternative basis for rejecting Mineralogy's alternative claim. In short, both Edelman J and the Full Court concluded that, if (contrary to their construction of the Facilities Deeds) the Facilities Deeds gave Mineralogy a 'right' to the operation of the port, that right would be varied by operation of cl 7(6) of the State Agreement and the obligation to implement the approved proposals. 327 At first instance, Edelman J, observed that cl 7(6) of the State Agreement created two obligations. His Honour said:225 There is no need to gloss the two obligations in cl 7(6). They mean what they say. The obligation of Mineralogy, Sino Iron, and Korean Steel is to implement the Approved Proposals 'in accordance with their terms'. And, with various exceptions which are not applicable in this case, the obligation of Mineralogy, Sino Iron and Korean Steel, is to ensure 'continuous operation of the Project'. 328 As will be seen, it was the first of these obligations that was relevant in the Port proceedings, namely the 'obligation of Mineralogy, Sino Iron, and Korean Steel is to implement the Approved Proposals "in accordance with their terms'''. 329 In that regard, Edelman J conducted a detailed analysis of the approved proposals in relation to the Project,226 and concluded that the terms of the approved proposals made it clear that the Project, including the operation and management of the port, would be carried out by CPMM on behalf of Sino Iron. His Honour identified 29 references in the approved proposals to that effect.227 330 Edelman J concluded: 228 An alternative claim for the CITIC parties was that if the Facilities Deeds had given Mineralogy a right to possess or to operate or maintain the Company Facilities, then the State Agreement, incorporating the Proposals, had varied that right by providing, on many occasions in the 223 Mineralogy (No 6) [397] - [446], [1057] - [1058] (Edelman J). 224 Mineralogy Pty Ltd v Sino Iron Pty Ltd (FCAFC)) [135], [183] (Besanko, McKerracher & Beach JJ). 225 Mineralogy (No 6) [515] (Edelman J). 226 That is, the five approved proposals referred to at [89] above. 227 Mineralogy (No 6) [524] - [573] (Edelman J). 228 Mineralogy (No 6) [575] - [577], [1068] (Edelman J). -- 101 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 102 Proposals, that CPMM would manage the project, including the port and export facilities. In other words, the CITIC parties alleged that there had been a variation of any right that Mineralogy had to operate and manage Company Facilities of Sino Iron or Korean Steel until they had become Shared Facilities. For the twenty nine reasons above, if Mineralogy had any right to operate or maintain the Company Facilities (which it did not) then cl 7(6) of the State Agreement would have varied any such right in the Facilities Deeds so that Mineralogy no longer had a right to operate Company Facilities of Sino Iron or Korean Steel. … The effect of cl 7(6) of the State Agreement and the Approved Proposals was that Mineralogy had agreed that the Project would be implemented in accordance with the Proposals. This required that the operation and maintenance of the port facilities was not by Mineralogy. The Approved Proposals required the operation and maintenance to be by CPMM. 331 The Full Court in Mineralogy Pty Ltd v Sino Iron Pty Ltd (FCAFC) agreed with Edelman J's conclusions in this regard. 332 In relation to the construction of cl 7(6) of the State Agreement, the Full Court addressed the overview advanced by the State of Western Australia in its submissions. It is to this aspect of their Honour's reasons that the CITIC parties pointed in their submission referred to at [319] above. Their Honours said: 229 The State submits that the benefits and obligations that arise by reason of the Minister's approval of a Proposal mean that the Proposal is more than a 'non-contractual document'. Rather, it is a document with legal effect. It is a representation to the State that the parties are ready and able to implement the Proposal and to continuously operate that which is approved, particularly given the fact that the submitting parties appreciate that the Minister cannot reject the Proposal. It defines the obligations to which the parties are then obliged to implement under cl 7(6). The State submits that departures from a Proposal may have consequences as potential breaches of the State Agreement. Because of the requirement at law for both the approval from the State in relation to the various Proposals and the ratification by Parliament, obligations are necessarily owed, not only by one party to the other, but also to the State. 229 Mineralogy Pty Ltd v Sino Iron Pty Ltd (FCAFC)) [214] - [216], [222] (Besanko, McKerracher & Beach JJ). -- 102 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 103 The State contends that once approved, the Project Proponents acquire rights and assume obligations in relation to the Approved Project. The obligation in cl 7(6) in requiring that the Proponents 'implement the Approved Proposals in respect of the Project in accordance with the terms hereof', subject to specified limited exceptions which are not presently pertinent, also requires the Proponents to 'ensure continuous operation of the Project'. Those two key obligations under the State Agreement apply equally to Approved Additional Proposals through cl 8(2) of the State Agreement. The State argues that, as the primary judge found, cl 7(6) means what it says, namely, that 'The Project must be operated in accordance with the approved proposal'. Contrary to Mineralogy's argument on appeal, the State says that because the State Agreement gives an approved Proposal legal effect, the terms of the Proposal should include the identification of the agents or subcontractors of the Proponent who will be responsible for the conduct of operations. The State supports the primary judge's conclusion that cl 6 of the State Agreement places importance on identifying the party implementing the Proposal. The State says that a specification of how a project is to be undertaken necessarily involves an understanding of who might be doing that work. It argues that in the absence of the who and the how, the Minister is not provided with the detailed Proposals referred to in cl 6(1). … In our opinion, the State's arguments as to the proper construction of the State Agreement must be accepted. The commercial and legal reality is that the State Agreement lies at the apex of a suite of agreements pertaining to the Sino Iron Project. The State Agreement is between Mineralogy, Sino Iron, Korean Steel, other subsidiaries or related companies of Mineralogy and the State. Even if the construction of cl 24(a1) or cl 24(b) of the Facilities Deeds were as Mineralogy contended, (which we reject), it would still be necessary for meaning to be given to the subsequent agreements entered into under the apex of the State Agreement. Those subsequent agreements were relevantly inconsistent with and had the effect of varying or replacing any provisions of the Facilities Deeds that gave Mineralogy any or all of the contended ownership, possession, operation or rights or responsibilities in relation to the Facilities. 333 Having considered Mineralogy's submissions on appeal in the Port proceedings as to the effect of the approved proposals, the Full Court concluded:230 Generally, the submission by Mineralogy that the Proposals were not concerned with any matters involving the operation of the Port Facilities or the identity of the operator of the Facilities at the Port must 230 Mineralogy Pty Ltd v Sino Iron Pty Ltd (FCAFC)) [257] - [258] (Besanko, McKerracher & Beach JJ). -- 103 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 104 be rejected. The content of the Proposals is manifestly to the contrary. This also accords with the commercial context and the governmental context in that the importance of the Port Facilities and their operation, including the identity of the operator, was central to the State's interests in approving the Proposals. The State's interest, quite apart from reputational factors, was financial in that the efficiency of the operation affected the income to the State in the form of royalties. The State was also interested in the support the Project could give to local employment of thousands of Western Australian people. All of this is reflected in the recitals to the State Agreement. … State Agreement – conclusion The argument for the State and the CITIC parties must be accepted. The primary judge was correct in concluding that there was no doubt under the State Agreement (and Proposals to which it refers) that the CITIC parties, not Mineralogy, were solely responsible for the operation and maintenance in the Circled Area. 334 As we have said, the Port proceedings focussed upon the first of the obligations in cl 7(6) of the State Agreement, namely the obligation of Mineralogy, Sino Iron, and Korean Steel to implement approved proposals in accordance with their terms, rather than on the obligation of those parties to 'ensure continuous operation of the Project'. It was in that context, that the Full Court evidently accepted the State's submission that, because of 'the requirement at law for both the approval from the State in relation to the various Proposals and the ratification by Parliament, obligations are necessarily owed, not only by one party to the other, but also to the State'.231 335 Understood in context, that proposition is obviously correct. It is important to recognise, however, that the Court was there referring to the obligations created by the approval of a proposal itself, and the consequence of 'departures from a Proposal'. Thus, for example, in the Port proceedings, the approved proposals created an obligation on the Project Proponents requiring the operation and maintenance of the port to be by the CITIC parties. While that obligation was primarily owed to the State, it meant that each of the Project Proponents had a correlative obligation to one another to observe the right of the CITIC parties to operate the port (and so varied or replaced any provisions of the Facilities Deeds that provided to the contrary). 231 Mineralogy Pty Ltd v Sino Iron Pty Ltd (FCAFC)) [214] (Besanko, McKerracher & Beach JJ). -- 104 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 105 336 Importantly, however, in our view, the obligations in cl 7(6) of the State Agreement remain primarily obligations of the Project Proponents (in this case Mineralogy, Sino Iron, and Korean Steel) that are owed to the State. Any obligations of the Project Proponents vis-à-vis one another are derivative of the broader mutual obligation of the Project Proponents to the State. And, significantly, the content of the obligations owed by the Project Proponents to one another will not necessarily be the same as the content of the obligations of the Project Proponents owed to the State. Much will depend upon the particular terms of the approved proposal in question, and the obligations it creates. 337 We do not understand the decision in Mineralogy Pty Ltd v Sino Iron Pty Ltd (FCAFC) to suggest otherwise. 338 Thus, for example, in the Port proceedings, the approved proposals relevantly amounted to a promise by all of the Project Proponents to the State that the port would be operated by CPMM. A failure to perform that promise might therefore be a breach of the State Agreement by all of the Project Proponents for which they may be liable to the State. The approved proposals, in turn, obliged the CITIC parties to operate the port and obliged Mineralogy to allow the CITIC parties to do so. The particular obligations on each party were, accordingly, complementary, although not identical. 339 The extent to which any particular approved proposal gives rise to an obligation on the part of an individual Project Proponent to another Project Proponent will therefore depend upon the specificity with which the approved proposal provides that the Project Proponent is required to take some particular action. An approved proposal which required Mineralogy to perform some particular task might, for example, readily be seen as obliging Mineralogy to perform that task, both as a promise to the State and to the Co-proponents. 340 In relation to a general obligation in an approved proposal which does not distinguish between the Project Proponents, however, the content of the obligation of each Project Proponent individually to one another might be quite different to the content of that owed by the Project Proponents collectively to the State. An approved proposal which required Project Proponents to perform some particular task (without identifying which Project Proponent is to perform the task), for example, would generally amount to a mutual obligation on the Project Proponents to the State to perform that task. It might not, -- 105 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 106 however, amount to an obligation of one Project Proponent to the other Project Proponent to perform that task, as if the sole responsibility for discharging the obligation to the State rested with one Project Proponent. 341 Rather, in such a case, the content of the obligation of each Project Proponent to the other would be one of mutual co-operation to discharge their mutual obligation to the State. In that regard, as is addressed in the context of ground 14(e) below, the CITIC parties relied upon an obligation of mutual co-operation implied by law in each of the agreements,232 including the State Agreement. In that regard, the learned trial judge accepted that the various agreements included such a term implied by law, referring in particular to the decision of the High Court in Secured Income Real Estate (Australia) Ltd v St Martin's Investments Pty Ltd.233 Mineralogy did not contend to the contrary, although, of course, it disputed that Mineralogy was in breach of those terms. 342 For present purposes, however, it is sufficient to note that, in relation to general obligations in approved proposals (that do not distinguish between Proponents), the 'obligations [that] are necessarily owed … by one party to the other'234 by those approved proposals will generally be obligations of mutual co-operation in the implementation of those proposals. 343 The same conclusion applies to the general obligation in cl 7(6) of the State Agreement itself to ensure 'continuous operation of the Project'. That broad obligation (expressed in those terms) is indeed owed to the State by Mineralogy, Sino Iron and Korean Steel. Thus, for example, should the continuous operation of the Project cease (within the meaning of the clause), each of those parties would, prima facie, be liable to the State for breach of the State Agreement. 344 In such a case, however, one of the Project Proponents would not necessarily be liable to the other by the mere fact of the cessation of the continuous operation of the Project. More would be required, such as the failure of that Project Proponent to reasonably co-operate with the 232 Namely, the State Agreement Implied Co-operation Term, the MRSLA Implied Co-operation Term, the Takeover Agreements Implied Co-operation Term, the Direct Agreement Implied Co-operation Term and the FCD Implied Co-operation Term. 233 Secured Income Real Estate (Australia) Ltd v St Martin's Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596 (Secured Income). See Primary reasons [535], [619], [711], [1848]. 234 Mineralogy Pty Ltd v Sino Iron Pty Ltd (FCAFC)) [214] (Besanko, McKerracher & Beach JJ). -- 106 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 107 other Project Proponents or to otherwise comply with a particular performance obligation on the part of that Project Proponent. 345 So understood, the obligation in cl 7(6) to 'ensure continuous operation of the Project' is not a commitment between the Project Proponents inter se, in precisely those terms, although that mutual obligation to the State will necessarily inform the obligations of the Project Proponents to one another, including the obligation of mutual co-operation. 346 This is how we would understand Mineralogy's submission to the following effect:235 Now, so as to ensure continuous operation of the project. Ultimately, in our submission, it's a covenant to the State. So is it a commitment to another project proponent in a legal sense? No. Is it a commitment to another project proponent in a practical sense? Yes. Because if you are going to have fidelity to the promise to the State, then - - - QUINLAN CJ: You have to help each other. DUNNING, MR: Correct. Correct. And that's why one can't take a myopic view of your counterparty's obligation. So it's not really the point to come along and say, 'Well, Mineralogy could do all of these things for us which would make the project better.' You can't look at it in that one-sided way. 347 While counsel referred to the commitment to the other Project Proponent as existing in a 'practical sense', in context it is clear that the submission accepted that the commitment to the State informed the counterparties' legal obligation of mutual co-operation. So understood, in our view, this contention is consistent with the decision in Mineralogy Pty Ltd v Sino Iron Pty Ltd (FCAFC). 348 As a matter of the proper construction of cl 7(6), that is how we would also understand the learned trial judge's conclusion that the mutual promise by Mineralogy, Sino Iron and Korean Steel to ensure the continuous operation of the Project was a promise to the State that was not inconsistent with the parties reaching a commercial agreement for any additional tenure.236 So understood, in our view, his Honour was correct. 235 Appeal ts 510 - 511. 236 Primary reasons [1018] (see [318] above). -- 107 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 108 Application of cl 7(6) and cl 8(2) of the State Agreement 349 Unlike in the Port proceedings, the CITIC parties did not contend, in the appeal, that there was any particular term of the existing approved proposals that created an obligation that required Mineralogy to grant the additional tenure and submit the 2017 MCPs. The CITIC parties had put a case to that effect in the primary proceedings, which the learned trial judge rejected.237 While his Honour's rejection of that case was challenged by ground 4 of the grounds of appeal, the CITIC parties did not press ground 4 at the hearing of the appeal.238 350 The CITIC parties' reliance on cl 7(6) of the State Agreement as obliging Mineralogy to grant the additional tenure in the alleged 2017 MCP Tenure Request and the 2021 Tenure Request was therefore confined to the broad obligation in cl 7(6) 'to ensure continuous operation of the Project'. 351 In one sense the CITIC parties' reliance on that general obligation in cl 7(6) was, and remains, premature. That is because there is no suggestion that there has ever been a cessation of the 'continuous operation of the Project'. The CITIC parties' reliance on cl 7(6) was more in the nature of anticipating a breach of cl 7(6) in the future, if the additional tenure was not granted or the 2017 MCPs approved. As can be seen from the factual allegations as to the importance of the 2017 MCPs and the additional tenure, those allegations were made in relation to the future continuation of the Project.239 352 This is also apparent from the learned trial judge's findings in relation to the additional tenure. As set out at [206] to [210] above, the only areas within the request for additional tenure that his Honour concluded were critical to the continuation of the Project were the areas sought within G08/63 for extra TSF and extra WRD areas. It is clear from those findings, however, that the need for further TSF and WRD areas related to the entire 'two billion tonne' Project and so was 'necessary to support the Sino Iron Project into the future'.240 353 There having been no cessation of the 'continuous operation of the Project' within the meaning of cl 7(6), neither Mineralogy, nor the CITIC parties, could be said to be in breach of that obligation. 237 See Primary reasons [1156] - [1197]. 238 Appeal ts 31. 239 See [293] - [294] above. 240 Primary reasons [2405] (emphasis added). -- 108 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 109 354 This serves to illustrate the significance of our conclusion above that the general obligation in the State Agreement to 'ensure continuous operation of the Project', does not amount to an obligation of one Project Proponent to the other Project Proponent in those terms, as if the sole responsibility for discharging that obligation to the State rested with one Project Proponent. 355 On the contrary, the obligation of the Project Proponents, to one another, in relation to that obligation in the State Agreement, is, relevantly, a mutual obligation of co-operation to bring about that result (i.e. to 'ensure continuous operation of the Project'). 356 Thus, in the present case, Mineralogy did not have the sole responsibility to ensure continuous operation of the Project, such that it was required to provide, to the CITIC parties, whatever land was necessary for the continuous operation of the Project, including areas that extended beyond those areas that had already been agreed between the parties. For example, the fact that the continuous operation of the Project might, or will, in future, require additional TSF and WRD areas (as the learned trial judge found), did not have the legal consequence that cl 7(6) obliged Mineralogy to provide those areas to the CITIC parties (on the terms required by the CITIC parties, including for no consideration). 357 On the contrary, insofar as the continuous operation of the Project, in the future, requires additional TSF and WRD areas, to which the CITIC parties do not have tenure, it is the obligation of Mineralogy and the CITIC parties to co-operate with each other in order to provide for those additional areas, having regard to their existing contractual obligations. That is a mutual obligation in relation to which (as will be seen) all of the parties are required to deal with each other in good faith. 358 In the absence of a conclusion that, in failing to grant the additional tenure, Mineralogy was in breach of that obligation (or some other contractual term obliging it to grant the additional tenure on the terms required by the CITIC parties), the failure to grant the additional tenure was not in breach of Mineralogy's obligations to the CITIC parties, under cl 7(6) of the State Agreement. 359 The CITIC parties' reliance on cl 7(6) of the State Agreement must be rejected. 360 Ground 14(a) has not been made out. -- 109 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 110 361 We now turn to the MRSLAs and in particular whether they contained the MRSLA Implied Necessary Tenure Term. MRSLA Implied Necessary Tenure Term – ground 14(c) 362 As we observed earlier, subject to the factual question as to whether the additional tenure was 'reasonably required' within the meaning of the term, the MRSLA Implied Necessary Tenure Term would provide the most immediate route to success for the CITIC parties in their claim for the additional tenure. That is because the MRSLA Implied Necessary Tenure Term, in its terms, would oblige Mineralogy to grant additional tenure. All of the other contractual terms relied upon by the CITIC parties were alleged to entitle them to additional tenure by a more indirect route (as for example, the effect of an obligation of good faith or 'reasonable assistance'). 363 It is appropriate, then, to deal next with the MRSLAs and the MRSLA Implied Necessary Tenure Term. In addition, of course, it is the MRSLAs that actually confer on Sino Iron and Korean Steel the tenure that they currently have, being the lease over the Site Lease Area and the Access Licence over the Access Areas. Prima facie, one would expect to find a contractual entitlement to an expansion of the Site Lease Area in the MRSLAs themselves, rather than in one of the agreements less directly concerned with the grant of tenure. 364 It is convenient, at this point, to recall the terms of the MRSLA Implied Necessary Tenure Term contended for by the CITIC parties, namely that Mineralogy would:241 (a) not unreasonably withhold its agreement to grant access to, and/or use of, such tenure within the Mineralogy Tenements as Sino Iron and/or Korean Steel reasonably require from time to time for the purposes of the Sino Iron Project; and (b) not unreasonably refuse to take steps reasonably required by Sino Iron and/or Korean Steel from time to time to enable them to exercise rights to access, and/or use, tenure within the Mineralogy Tenements for the purposes of the Sino Iron Project. 365 It goes without saying that the MRSLAs contain no express term to this effect. Indeed, in our view, the MRSLAs contain no express terms that even approach such a term. 241 See [65] above. -- 110 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 111 366 In determining whether such a term should be implied, the following features of the express terms of the MRSLAs may be noted. 367 First, the Site Lease Area itself is, as the MRSLAs currently stand, a clearly defined and identifiable area of land. Save for the possibility of change by agreement (to which we will return), the Site Lease Area is not ambulatory or subject to change by operation of matters or events outside of the terms of the agreements. On the contrary, the MRSLAs specify the Site Lease Area by reference both to particular mining tenements issued under the Mining Act and to the plan in Annexure 1. In addition, the MRSLAs are careful to distinguish between those areas in relation to which the 'exclusive possession' provision in cl 4.5 applies and those areas subject to access rights only. 368 Secondly, the fact that the definition of the Site Lease Area (in both cl 1.1 and cl 4.1) extended to the area 'or [as] otherwise agreed in writing between Mineralogy and [Sino Iron or Korean Steel]' did not make the MRSLAs 'ambulatory' in the sense submitted by the CITIC parties. 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'.242 369 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: 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 242 Appeal ts 98. -- 111 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 112 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:243 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':244 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. Certainly as now seen, a potential future grant to be considered by Mineralogy of 'other tenure' to Sino Iron and Korean Steel – is 243 Primary reasons [907] (emphasis in original). 244 Primary reasons [908] - [911] (emphasis in original). -- 112 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 113 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. 376 Once this is appreciated, a number of the CITIC parties' contentions fall away. 377 The CITIC parties, for example, submitted:245 [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 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. 245 Appellants' Submissions [7] - [8] (references omitted) (WAB 29 - 30). -- 113 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 114 379 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. 380 In this context, it must be said (as we discussed at [279] to [282] above) that the learned trial judge's focus on the 'no consideration issue' did tend to distract attention from whether the MRSLAs conferred any entitlement to additional tenure at all. Paragraph [2405] of the Primary reasons, for example, which is directly challenged by ground 1, said of the additional areas of TSF and WRD referred to in [206] above: They are, as I have found, necessary to support the Sino Iron Project into the future. But I have also concluded that Mineralogy is entitled to some reasonable measure of remuneration in return for providing those additional tenure areas. 381 By focussing on Mineralogy's 'entitlement' to remuneration, this formulation of the learned trial judge's reasoning, with respect, begs the question as to the 'entitlement' of any of the CITIC parties to the additional tenure (for valuable consideration or otherwise). 382 Returning then to whether, on their proper construction, the MRSLAs contain the MRSLA Implied Necessary Tenure Term. 383 In our view, the MRSLAs contain no such implied term and the learned trial judge was correct to so conclude. The MRSLA Implied Necessary Tenure Term simply does not meet the criteria identified in BP Refinery. 384 In particular, given the way in which the MRSLAs carefully identified the specific areas of land that would be subject to the Site Lease (i.e. the Site Lease Area) and the Access Licence (i.e. the Access Areas), it is not so obvious that it 'goes without saying', that Mineralogy was obliged to grant further tenure upon the satisfaction of certain criteria. Leaving aside the difficulties sometimes accompanying the notion of the 'officious bystander',246 it cannot be accepted that any bystander, if asked whether it was the common intention of the parties 246 As to which see Servcorp WA Pty Ltd v Perron Investments Pty Ltd [2016] WASCA 79; (2016) 50 WAR 226 (Servcorp) [154] - [156] (Buss JA; Martin CJ & Murphy JA agreeing). -- 114 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 115 to the MRSLAs that Mineralogy would be obliged to agree to grant further tenure to Sino Iron or Korean Steel, would answer 'Of course'.247 385 Nor can it be said that it is necessary to give business efficacy to the MRSLAs that Mineralogy be obliged to grant further tenure that the CITIC parties 'reasonably require' for the purposes of the Project. The MRSLAs confer on Sino Iron and Korean Steel a Mining Right to the Sino Iron leases and tenure for the purposes of processing facilities. Those contracts are capable of sensible operation in the absence of the MRSLA Implied Necessary Tenure Term. No doubt there are many matters which, in the future, might affect the profitability or efficiency of the CITIC parties' mining activity pursuant to those agreements, including the need for additional tenure. That does not, however, have the consequence that it is 'necessary to make the contract work' for Mineralogy to be obliged to provide that additional tenure.248 386 In this respect, in our view, Recital E to the MRSLAs – to the effect that Mineralogy will consider any further requests by Sino Iron or Korean Steel for other tenure that Sino Iron or Korean Steel reasonably requires for the purposes of its project – is of critical importance in the construction of the MRSLAs. 387 First, while a recital can assist in the construction of a contract (including in determining whether the contract contains an implied term), recitals are not themselves operative terms.249 Accordingly, while Recital E to the MRSLAs clearly reveals a willingness on the part of Mineralogy to consider requests for further tenure, it does not create a contractual obligation to do so. 388 Secondly, and significantly, even if Recital E had been a contractual obligation on the part of Mineralogy (that is, it had been included as an operative term of the MRSLAs), the MRSLA Implied Necessary Tenure Term goes well beyond the terms of Recital E. While the recital contemplates that Mineralogy would 'consider' certain requests from Sino Iron and Korean Steel, the proposed implied term is to the effect that Mineralogy would 'agree' to them. 389 In this respect, while we accept that a recital – particularly one that states that a party will carry out a particular action – is capable of 247 BP Refinery, 286. 248 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; (1986) 160 CLR 226, 241 (Gibbs CJ, Mason, Wilson, Brennan & Dawson JJ). 249 Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603 (Franklins v Metcash) [380] (Campbell JA). -- 115 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 116 supporting an implied term,250 the MRSLA Implied Necessary Tenure Term is not a term that requires Mineralogy to take the particular action referred to in Recital E. It is a term that would require Mineralogy to do significantly more than take that particular action. The CITIC parties' submissions, with respect, never grappled with how a recital that contemplates mere 'consideration' of certain requests could support, or sit comfortably with, an implied term to the effect that, subject to the criteria of reasonableness, Mineralogy would not only 'consider' such requests for tenure but would be positively obliged to grant them. 390 In those circumstances, to the extent that the CITIC parties identified Recital E as the source of the MRSLA Implied Necessary Tenure Term,251 Recital E does not support the existence of that implied term. On the contrary, in our view, such a term would be inconsistent with the recital (and the MRSLAs as a whole). A stream cannot rise above its source. 391 Similarly, the existence of Recital E also makes clear that the issue of additional tenure, or the expansion of the Site Lease Area, was not a matter in relation to which the parties to the MRSLAs 'failed to address their minds'. As Mason J said in Codelfa, 'with implication the term is one which it is presumed that the parties would have agreed upon had they turned their minds to it' and that the 'more detailed and comprehensive the contract the less ground there is for supposing that the parties have failed to address their minds to the question at issue'.252 In the present case, the negotiating parties to the MRSLAs plainly did turn their attention to the question at issue (namely requests for further tenure) and chose not to make explicit provision for them in the MRSLAs (beyond the assumption in the recitals that Mineralogy would give consideration to such requests). 392 This brings us finally to the requirement that an implied term must be capable of clear expression. In this regard we would not, as the learned trial judge appears to have done,253 regard the use of the expression 'reasonably' in the MRSLA Implied Necessary Tenure Term as necessarily lacking clarity or precision. An implied term will not be 250 Franklins v Metcash [380(5)] (Campbell JA) citing Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54, 72 - 73 (Mason J). 251 Appellants' Submissions [107(e)] (WAB 65). 252 Codelfa, 346 (Mason J). 253 Primary reasons [937] - [938]. -- 116 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 117 incapable of clear expression merely because it operates by reference to a standard such as 'reasonableness'.254 393 Rather, the difficulty with the clarity of the implied term in the present case relates to obviousness. In the present case it is notable that the MRSLA Implied Necessary Tenure Term incorporates 'reasonableness' at two distinct points (i.e. 'not unreasonably withhold its agreement [for] such tenure as Sino Iron and/or Korean Steel reasonably require'). As will be apparent, in order to formulate a 'workable' implied term, it was necessary for the CITIC parties to leave almost the entirety of the term's operation to notions of reasonableness (both as to any request and to any response). 394 This may be contrasted, for example, with Servcorp, which was relied upon by the CITIC parties in this context.255 In that case, the Court was concerned with terms of a lease providing a seven-step process for a market rent review under the lease. That process culminated in the right of a party to 'ask the President of the Australian Institute of Valuers and Land Economists Inc (WA Branch) to appoint another independent Valuer to decide the New Rent'.256 The Court implied a term that a party would not 'unreasonably refuse' to agree to ask the President to make such an appointment. This term was implied in order to give business efficacy to a detailed process which the parties had agreed and for which they made explicit provision. In that context, it was 'obvious' that the parties' detailed provision for a market rent review process was not to be thwarted or frustrated by the unreasonable refusal to facilitate that process.257 The implied term, while incorporating a standard of 'reasonableness', was therefore one part of a larger set of contractual provisions. 395 By contrast, in the present case, the MRSLAs included no operative provisions whatsoever for a process for the grant of additional tenure. The MRSLA Implied Necessary Tenure Term would provide the entirety of that process, with reasonableness being the only criterion, at each stage of the process. 396 It is not obvious that, having carefully identified the specific areas of land that would be subject to the Site Lease and the Access Licence, the parties to the MRSLAs would arrive at a process for the grant of 254 Servcorp [164] (Buss JA; Martin CJ & Murphy JA agreeing). 255 Appellants' Submissions [107(d)] (WAB 64). 256 Servcorp [13] (Buss JA; Martin CJ & Murphy JA agreeing). 257 Servcorp [137] (Buss JA; Martin CJ & Murphy JA agreeing). -- 117 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 118 additional tenure that operated in this open-textured way. On the contrary, there are a number of ways in which the parties might have provided for the resolution of any future request for additional tenure, including a compulsory process for mediation or arbitration. One obvious means of dealing with the issue, of course, is to leave any expansion of the Site Lease Area or Access Areas to good faith commercial negotiations between the parties if, and when, the need for further tenure arose. 397 That is, in our view, ultimately what the MRSLAs reveal as to the grant of any additional tenure; namely, that 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. 398 The MRSLAs did not contain the MRSLA Implied Necessary Tenure Term. Ground 14(c) has not been made out. 399 We turn then to the obligations of good faith and mutual co-operation. Good faith and mutual co-operation – grounds 14(d), (e) and (f) 400 As we have said earlier, the CITIC parties did not contend that any different result could flow from the various pleaded implied obligations of good faith and mutual co-operation, than that resulting from the express obligation of good faith in cl 37.4 of the MRSLAs and the obligation of mutual co-operation implied by law into those agreements. 401 Similarly, the CITIC parties did not draw a substantial distinction, in their submissions, between the obligation of 'good faith' and the obligation of 'mutual co-operation' in the present case. That is, the submissions proceeded upon the combined or 'conjoined' effect of those obligations.258 402 It is convenient, then, to consider the effect of all of those provisions compendiously. References to 'good faith' or the 'obligation of good faith' in what follows, accordingly, includes the obligation of mutual co-operation. 258 Consistent with the observation in Cheshire & Fifoot, Law of Contract (11th Aust ed, 2017) [10.44], that '[t]he duty to act in good faith is often conjoined with the duty to co-operate'. -- 118 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 119 Good faith – preliminary observations 403 In many respects the obligation of good faith was the primary focus of the CITIC parties' oral submissions on the appeal (and, indeed, the CITIC parties' submitted that, in a sense, they 'don't need the implied term'). 404 The question whether a standard of good faith should be implied generally to contracts has not been resolved in Australia.259 As the High Court has yet to recognise the existence, as a matter of law, of a generally implied term of good faith, on that basis it cannot be accepted that such a term is to be generally or universally implied into all contracts or all commercial contracts.260 405 It is not necessary to reach a concluded view as to whether the specific implied obligations of good faith pleaded by the CITIC parties were to be implied into the various agreements in the present case because, as we have said earlier, the CITIC parties did not contend that any different result could flow from the pleaded implied obligations of good faith and mutual co-operation, than that resulting from the express obligation of good faith in cl 37.4 of the MRSLAs. 406 The CITIC parties submitted:261 [I]f acting reasonably in accord – reasonably required proposal, Mineralogy must, compliant with its obligations of good faith, and to give us the benefit of the agreement. Engage with the delivery of tenure to meet that. They can of course say it's not reasonable for you to give the tenure, for example, let it be assumed they had rightfully given rights to a third party. 407 In making this submission, the CITIC parties acknowledged that the content of 'reasonably required' included a number of 'subtleties and variations' but ultimately accepted that, in their submission '[t]he 259 Barker [107] (Kiefel J). 260 See the discussion of decisions of intermediate appellate courts on this point in QNI Resources Pty Ltd v North Queensland Pipeline No 1 Pty Ltd [2022] QCA 169; (2022) 11 QR 648 [119] - [133] (Kelly J; Morrison JA & Ryan J agreeing); see also Trans Petroleum (Australia) Pty Ltd v White Gum Petroleum Pty Ltd [2012] WASCA 165; (2012) 268 FLR 433 (Trans Petroleum (Australia)), 459 [151] (Buss JA; Murphy & Pullin JJA agreeing). It is also notable that as Edelman J observed in Mineralogy (No 6) [1006], it cannot be accepted that a term of good faith is to be generally or universally implied into all commercial contracts because 'questions of implication, like those of construction, require close focus upon the terms of the contract itself. Where a duty is said to arise because of the manifest agreement of the parties, it is always necessary to examine the terms of the contract itself. The second reason is the potential for the content of "good faith" to differ from one contractual context to another.' 261 Appeal ts 66. -- 119 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 120 content of the good faith obligation includes an obligation to grant tenure to an area where it's reasonably required'.262 408 In this regard the CITIC parties' approach to the issue of good faith was not dissimilar to that of the learned trial judge reproduced at [193] above. That is, both approaches tended to 'abstract' the good faith obligation into more detailed and prescriptive components specific to a request for additional tenure, as if those components were contractual terms to be applied like an express term. The learned trial judge, indeed, described these as being 'sub-components of the … good faith obligation'.263 409 As a result the 'content' of the good faith obligations, as abstracted by both the learned trial judge and the CITIC parties, bore many similarities to the content of the MRSLA Implied Necessary Tenure Term. 410 In our view there are real dangers in approaching the obligation of good faith in this way; namely by substituting the obligation of good faith for 'legal categories susceptible of clear definition and giving rise to definite issues of fact readily formulated' which, when found, yield a definitive answer.264 411 As to the content of an obligation to act in 'good faith' (where it does apply), in Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd, Pullin JA,265 and Murphy JA,266 referred to what Sir Anthony Mason had said in an address given at the University of Cambridge in 1993, that the concept of 'good faith': 267 [E]mbraces no less than three related notions: (1) an obligation on the parties to cooperate in achieving the contractual objects (loyalty to the promise itself); (2) compliance with honest standards of conduct; and (3) compliance with standards of conduct which are reasonable having regard to the interests of the parties … 262 Appeal ts 68. 263 Of course, in light of the learned trial judge's conclusions in relation to, inter alia, the 'no consideration' issue and whether the areas were 'reasonably required' his Honour concluded that the 'sub-components' of the good faith obligation as his Honour identified them were not breached. 264 See Jenyns v Public Curator (Qld) [1953] HCA 2; (1953) 90 CLR 113, 119 (Dixon CJ, McTiernan & Kitto JJ). The remarks in that case were made in the context of the application of equitable principles but, in our view, are equally applicable in the present context. 265 Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd [2010] WASCA 222; (2010) 41 WAR 318 (Strzelecki) [49] - [54] (Pullin JA; Newnes JA agreeing). 266 Strzelecki [91] (Murphy JA). 267 Mason A F, Contract, Good Faith and Equitable Standards in Fair Dealing (2000) 116 LQR 66, 69. -- 120 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 121 I use…'good faith' mainly in the sense of loyalty to the promise itself and as excluding 'bad faith' behaviour. 412 Murphy JA in Strzelecki went on to point out, in relation to these notions:268 Whilst I would, with respect, agree that the three notions referred to by Sir Anthony Mason may in a general sense be regarded as illustrating related aspects of the concept of 'good faith', it is nevertheless important, in my view, to bear in mind the following matters. The first is that they are 'notions' which are 'related' to each other. It would be wrong in my view to regard them as, in effect, statutory criteria, each to be interpreted in its own right, and then applied independently of the other. The second and related matter is that the assessment of what is 'reasonable having regards to the interests of the parties' in the third notion, will itself in my view be informed by the identification of the 'contractual objects' and the scope of the obligation 'to cooperate in achieving [those] objects' with which the first notion is concerned, having regard to the proper construction of the contract as a whole. In this sense, the reference to the 'interests' of the parties in the third notion is to be understood as a reference to the 'legitimate' interests of the parties. 413 More recently, there has been a shift away from Sir Anthony Mason's three notions of 'good faith' and towards looking objectively at the quality of conduct required by the parties by the obligation of good faith, to a general normative standard of conduct. 414 In Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service, Allsop P (as his Honour then was) observed, in a matter concerning an express obligation requiring the parties to act with 'utmost good faith' in the performance of their contractual duties and powers, the usual content of the obligation of good faith that can be extracted from the authorities is as follows:269 (a) obligations to act honestly and with a fidelity to the bargain; (b) obligations not to act dishonestly and not to act to undermine the bargain entered or the substance of the contractual benefit bargained for; (c) an obligation to act reasonably and with fair dealing having regard to the interests of the parties (which will, inevitably, at times conflict) and to the provisions, aims and purposes of the contract, objectively ascertained. 268 Strzelecki [92] (Murphy JA) (emphasis added). 269 Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268; (2010) 383 ALR 577 (Macquarie International) [12]. -- 121 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 122 415 Allsop P in Macquarie International first described the content of this obligation to act in good faith as a normative standard.270 Hodgson JA (with whom Macfarlan JA agreed) did not adopt this concept of a norm and instead applied the three notions identified by Sir Anthony Mason.271 416 In subsequent cases, Allsop P's characterisation of the content of the obligation of good faith as a normative standard has prevailed. 417 In Paciocco v Australia and New Zealand Banking Group Ltd,272 Allsop CJ, after repeating the three elements his Honour had summarised in Macquarie International,273 said:274 None of these obligations requires the interests of a contracting party to be subordinated to those of the other. It is good faith or fair dealing between the parties by reference to the bargain and its terms that is called for, be they both commercial parties or business dealing with consumers. As Posner J said in Market Street Associates Ltd Partnership v Frey 941 F (2d) 588 (1991) the contractual notion of good faith varies in what is required for its satisfaction by reference to the nature of the contract. But the notion is rooted in the bargain and requires behaviour to support it, not undermine it, and not to take advantage of oversight, slips and the like in it … The standard of fair dealing or reasonableness that is to be expected in any given case must recognise the nature of the contract or relationship, the different interests of the parties and the lack of necessity for parties to subordinate their own interests to those of the counterparty. That a normative standard is introduced by good faith is clear. It will, however, not call for the same acts from all contracting parties in all cases. The legal norm should not be confused with the factual question of its satisfaction. The contractual and factual context (including the nature of the contract or contextual relationship) is vital to understand what, in any case, is required to be done or not done to satisfy the normative standard. 418 The normative standard of conduct required by an obligation of good faith cannot be said to be fixed by particular conduct. It simply requires the parties to each act (in the context of fidelity to the bargain and their respective interests) honestly, fairly, reasonably and to cooperate. 270 Macquarie International [17] (Allsop P). 271 Macquarie International [146] - [149] (Hodgson JA; Macfarlan JA agreeing). 272 Paciocco v Australia and New Zealand Banking Group Ltd [2015] FCAFC 50; (2015) 236 FCR 199 (Paciocco). 273 Paciocco [288] (Allsop CJ; Besanko & Middleton JJ agreeing). 274 Paciocco [289] - [290] (Allsop CJ; Besanko & Middleton JJ agreeing). -- 122 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 123 419 As Edelman J observed in Mineralogy (No 6):275 One difficulty with the implication of a term of 'good faith' is that although it has been overtly recognised for centuries across many different legal contexts, and across both the civil law and common law, it is a principle that can mean different things in different contexts. When contracts incorporate an express obligation of good faith then the meaning and content of that obligation must be determined in that particular contract. 420 His Honour went on in Mineralogy (No 6) to approve the normative standard of good faith, described by Allsop CJ in Macquarie International and Paciocco, and said 'at least where "good faith" is described as an implied obligation, the notion of "good faith" is better understood as a norm underlying, and shaping, a particular duty or duties.' 276 421 The normative standard of good faith does not establish a fiduciary relationship.277 The obligation of good faith encompasses good faith in the performance by the parties to the contract, and extends to an obligation on the parties not to undermine the bargain. A party is not required to act altruistically towards another party, but they cannot do anything that will injure the contractual rights of another party. 422 As Allsop CJ said in Paciocco:278 That a normative standard is introduced by good faith is clear. It will, however, not call for the same acts from all contracting parties in all cases. The legal norm should not be confused with the factual question of its satisfaction. The contractual and factual context (including the nature of the contract or contextual relationship) is vital to understand what, in any case, is required to be done or not done to satisfy the normative standard. (emphasis added) 423 Later in Paciocco, Allsop CJ made similar observations in relation to the norm of unconscionability. His Honour said:279 [A]ny agonised search for definition, for distilled epitomes or for shorthands of broad social norms and general principles will lead to disappointment, to a sense of futility, and to the likelihood of error. The 275 Mineralogy (No 6) [1003] - [1004] (Edelman J). 276 Mineralogy (No 6) [1009] (Edelman J). 277 Paciocco [292] (Allsop CJ; Besanko & Middleton JJ agreeing). 278 Paciocco [290] (Allsop CJ; Besanko & Middleton JJ agreeing). 279 Paciocco [304] (Allsop CJ; Besanko & Middleton JJ agreeing). -- 123 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 124 evaluation is not a process of deductive reasoning predicated upon the presence or absence of fixed elements or fixed rules. 424 While made in a different context, in our view these remarks are equally applicable to the obligation of good faith in the MRSLAs (and other agreements between the parties in the present case). The resolution of whether Mineralogy failed to 'act in good faith' by failing to grant the additional tenure in response to the alleged 2017 MCP Tenure Request or the 2021 Tenure Request, must be determined by the application of the normative standard of 'good faith' to all of the circumstances in their full contractual and legal context; not by reference to the presence or absence of fixed elements. 425 Simply because a request of one party to a contract might be properly regarded as 'reasonable', for example, does not necessarily mean that the other contracting party is bound, in good faith, to accede to that request.280 Conversely, a contracting party might, depending upon the circumstances, be bound in good faith to take some particular action, notwithstanding that it is not the subject of a 'reasonable request' by the other contracting party. Each case will depend upon whether, in all of the circumstances, the contracting party has satisfied the legal norm of good faith. 426 As to the content of that normative standard of good faith, we accept, as Allsop CJ summarised in Paciocco, that the content of the obligation of good faith in the present case generally comprises:281 [A]n obligation to act honestly and with a fidelity to the bargain; an obligation not to act dishonestly and not to act to undermine the bargain entered or the substance of the contractual benefit bargained for; and an obligation to act reasonably and with fair dealing having regard to the interests of the parties (which will, inevitably, at times conflict) and to the provisions, aims and purposes of the contract, objectively ascertained. 427 The cases also make clear, in this context, that these obligations do not require a contracting party's interests to be subordinated to those of the other, although they do require that party to have due regard to the rights and interests of the other party.282 280 As we noted at [300] above. 281 Paciocco [288] (Allsop CJ; Besanko & Middleton JJ agreeing). 282 Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 [144] (Bathurst CJ; McFarlan & Meagher JJA agreeing); Trans Petroleum (Australia) [153] (Buss JA; Pullin & Murphy JJA agreeing); Paciocco [289] (Allsop CJ; Besanko & Middleton JJ agreeing). -- 124 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 125 428 Similarly, in the context of the obligation of mutual co-operation, the obligation of the parties will be confined to what is 'reasonably necessary to secure performance of their contract' and cannot rise above the promises made by the parties to the contract.283 The duty of co-operation is also required to be determined, not by what might appear reasonable in an abstract sense, but by the obligations imposed upon each party by the agreement itself.284 429 These general principles as to the content of the obligation of good faith (including the obligation of mutual co-operation) are, in our view, applicable in the present case. Good faith – overall conclusion 430 Applying the normative standard of good faith to the circumstances of the present case, in our view, the learned trial judge was correct to conclude that Mineralogy was not in breach of its obligation of good faith in failing to grant the additional tenure in response to any of the tenure requests. 431 The learned trial judge's conclusion in that regard was, of course, heavily influenced by the 'no consideration' issue. His Honour's central reason for rejecting the claim based on the good faith obligation would appear to be the following conclusion (recognising that his Honour had abstracted the good faith obligation to include a specific element of a 'reasonable request' for additional tenure):285 Absence of an offer of reasonable remuneration in return for requested areas would, in my assessment, lead by itself to a necessary characterisation of all such prior tenure requests, as not being reasonably made requests to Mineralogy at the time. 432 While (for the reasons we have just given) we would not have expressed the conclusion in quite these terms (that is, by reference to whether there was a 'reasonable request'), we do not disagree with the learned trial judge's underlying reasoning in this regard. In particular, having regard to the nature and extent of the additional tenure contemplated by the 2017 MCPs and ultimately sought in the various tenure requests, Mineralogy cannot be said to have acted dishonestly, 283 Secured Income, 607 - 608 (Mason J); EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78; (2010) 41 WAR 23 [108] - [109] (Buss JA; Owen & Newnes JJA agreeing). 284 Binningup Nominees Pty Ltd v Mirvac (WA) Pty Ltd [2021] WASCA 130 [404] (Murphy, Beech & Vaughan JJA) citing James E McCabe Ltd v Scottish Courage Ltd [2006] EWHC 538 (Comm) [17] (Cooke J). 285 Primary reasons [987] (see [194] above). -- 125 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 126 unreasonably or otherwise contrary to the requirements of good faith by failing to grant the additional tenure (or any part of it) to Sino Iron and Korean Steel without receiving any consideration for doing so. The areas the subject of the tenure requests were clearly the property of Mineralogy, in relation to which Sino Iron and Korean Steel had no legal interest.286 It was not established on the facts that fair dealing required Mineralogy, when faced with the requests for additional tenure, to provide a leasehold interest in those areas for nothing. 433 While we do not disagree with the learned trial judge's central conclusion, we would nevertheless prefer to express our reasons for rejecting the CITIC parties' case based on the obligation of good faith in a more systematic way, by reference to the conduct of the parties reflected in the exchanges between them in their full context. In particular, it is important, when assessing whether Mineralogy was in breach of the obligation of good faith, to focus on the quality of its conduct in the performance of the agreements (namely whether it acted dishonestly or without fidelity to the bargain etc). That issue is not ultimately answered by reference to whether, for example, a 'request' made by the other contracting party can be described as 'reasonable' or not. 434 This is not to say that the conduct of the other party is irrelevant to whether a contracting party has failed to act with good faith. As Allsop CJ said in Paciocco, the full 'contractual and factual context (including the nature of the contract or contextual relationship) is vital to understand what, in any case, is required to be done or not done to satisfy the normative standard'.287 That context will necessarily include the conduct of the other contracting party. 435 This is particularly so, given that, as the learned trial judge recognised,288 the obligation of good faith is a mutual one (as, of course, is the obligation of co-operation). As cl 37.4 of the MRSLAs says, each party to the agreement 'will act in good faith towards one another'. In a case such as the present, where the Court is concerned with the positions taken by contracting parties in exchanges or putative negotiations, whether the position taken by one party (at any given point in time) lacks good faith can only be assessed in light of the 286 Except perhaps for those areas that were subject to the non-exclusive Access Licence (such as the road from the mining areas to the port) which, as part of the 2018 Tenure Request, Sino Iron and Korean Steel sought to be included in the Site Lease Area (see [123] above). 287 Paciocco [290] (Allsop CJ; Besanko & Middleton JJ agreeing). 288 Primary reasons [986] (see [194] above). -- 126 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 127 circumstances then facing that party, including the position taken by the other party. 436 In the present case, one matter of context that cannot be ignored is the fact that, as the learned trial judge put it, at various times 'tensions between the protagonists were running at high levels, especially around the time of the RCB [i.e. Royalty Component B] non-payments and all the associated litigation and appeals'.289 As we observed at [107] above, throughout 2017, Mineralogy and the CITIC parties remained in a substantial dispute in relation to the CITIC parties' liability to pay Royalty Component B under the MRSLAs. While Kenneth Martin J delivered judgement in Mineralogy's favour shortly prior to the provision of the 2017 MCPs to Mineralogy, the CITIC parties' appeal remained extant for a further 18 months. 437 The tension, and degree of mutual suspicion, between the parties did not, of course, relieve any of them of their obligation to act in good faith towards one another. Nevertheless, that context is relevant to an understanding of the way in which each of the parties were dealing with one another, and the extent to which the parties could be expected to 'take at face value' any representations being made by each other. 438 Again, this not to say that either party could ignore the interests of the other in their dealings. Quite the contrary. The mutual obligation of good faith underscores the need for transparency between the parties, so that points of dispute between them could be resolved by good faith negotiations. However, where one party adopts a position in relation to a dispute which is unreasonable, or lacks transparency, it may be (depending upon all of the circumstances) that a response by the other party to respond in a way that appears (at first) to be recalcitrant, may in truth reflect legitimate self-interest rather than a lack of good faith. 439 This is significant in the present case because in a number of respects it was the CITIC parties' correspondence and approach to the issues in this case, rather than Mineralogy's, that, objectively, was less than candid or straightforward and otherwise lacked transparency. Good faith – the alleged 2017 MCP Tenure Request 440 This is most clearly seen in the CITIC parties' consistent failure (at least until the 2018 Tenure Request) to even acknowledge that their 289 Primary reasons [1259]. -- 127 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 128 need for additional tenure was essential to the ability to progress the various proposed mine continuation proposals. 441 In that regard, it is clear that, from late 2016, the CITIC parties knew that additional land tenure belonging to Mineralogy was needed to progress the 2016 MCPs and 2017 MCPs (collectively, MCPs).290 The CITIC parties had been expressly told by the Department of State Development that they must obtain agreement from Mineralogy as the underlying tenement holder and that the Minister could 'only consider proposals where the underlying tenure has been secured'.291 442 Despite their knowledge of the critical need for them to address issues relating to additional tenure, the CITIC parties, when communicating with Mineralogy in relation to the MCPs, did not ever acknowledge (at least until the 2018 Tenure Request) that they even needed additional tenure for the purposes of those proposals, let alone did they request such additional tenure. Up until that time they were entirely silent on the matter. 443 The CITIC parties maintained that silence even in the face of repeated statements by Mineralogy to the effect that the CITIC parties did not have the required tenure to progress the MCPs and needed to commence negotiations to acquire that tenure.292 To be clear, it is not the case that the CITIC parties disagreed with the need to obtain additional tenure, or maintained that it was legally entitled to the additional tenure or joined issue with Mineralogy at all. They simply ignored the issue. 444 In those circumstances, it could hardly be said that, up until at least the time of the 2018 Tenure Request, that Mineralogy was failing to act in good faith (i.e. acting dishonestly, unreasonably or without fidelity to their bargain) by failing to grant additional tenure to the CITIC parties that the CITIC parties had not even acknowledged that they needed, let alone had entered into negotiations for them to acquire. On the contrary, it was, at that time, only Mineralogy who was inviting negotiation or discussion in relation to the issue. 445 In that regard, whatever else may be said of any legal entitlement to additional tenure on the part of the CITIC parties (as it was ultimately formulated, and contended for, by the CITIC parties in the 290 See [93] above. 291 See [95] above. 292 See [101] - [102], [104] and [114] above. -- 128 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 129 primary proceedings), it is not self-evident that they had such an entitlement, for valuable consideration or otherwise. The basis for any such entitlement was a legitimate matter for the other contracting party to raise. Mineralogy could not be said to be acting otherwise than in good faith by raising the issue. 446 And yet, the first aspect of the CITIC parties' good faith case, which is maintained on appeal, is that Mineralogy was in breach of its obligation of good faith in not agreeing to the 'implicit tenure request in the 2017 MCPs' (i.e. the alleged 2017 MCP Tenure Request).293 447 As set out at [219] to [221] above, the learned trial judge concluded that there was no such implicit tenure request, the absence of which, in light of his Honour's formulation of the obligation of good faith, provided an additional basis for his Honour's rejection of the CITIC parties' case. 448 In that regard, the learned trial judge's focus on whether the 2017 MCPs could be characterised as including an implied 'request', was again influenced by his Honour having regarded a 'clear request' as, in effect, a 'fixed element' in the operation of the obligation of good faith.294 It was also, of course, a consequence of the CITIC parties' pleaded case that the 2017 MCPs contained the 2017 MCP Tenure Request. 449 In that context, in our view the learned trial judge was correct to conclude that there was no implicit tenure request in the 2017 MCPS. As his Honour observed, the CITIC parties had not even alleged that there had been such an implicit request until late 2021.295 450 Curiously, the CITIC parties' late allegation that the 2017 MCPs contained the 2017 MCP Tenure Request relied upon the correspondence from Mineralogy to the effect that the CITIC parties did not have the required tenure to progress the MCPs and needed to commence negotiations to acquire that tenure.296 There is a certain chutzpah in the CITIC parties' reliance on that correspondence because, as we have said, insofar as Mineralogy pointed out the need for additional tenure in its correspondence (a need for which the CITIC 293 See [218] above. 294 See [193] above. 295 While, the notion of the 'MCP Subset of Requested Areas' was introduced into the Statement of Claim on 26 October 2021, the allegation that there had been an 'implicit request' in the MCPs (the 2017 MCP Tenure Request) was not pleaded until 14 December 2021 (see [119], [153] - [158] above). 296 See [443] above. -- 129 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 130 parties were already well aware), the CITIC parties entirely ignored the issue. In those circumstances, it was not open to the CITIC parties to rely upon having made an implicit 'request' when, in the months that followed that alleged 'implicit request', the CITIC parties would not even acknowledge that they needed to make a request. 451 To be clear, there is no doubt that Mineralogy recognised, from when it first received the 2016 MCPs (and thereafter) that the CITIC parties did not have the required tenure to progress the MCPs. That is not the same as Mineralogy understanding, or treating, the MCPs as a 'request' for the expansion of the Site Lease Area under the MRSLAs or an invitation to enter into an agreement in that regard. Less still could Mineralogy understand that 'request' to be one in relation to which, for reasons unstated by the CITIC parties, Mineralogy was unilaterally obliged to comply with. 452 For these reasons, we agree with his Honour's conclusion that there was no implicit tenure request in the 2017 MCPs. 453 Again, however, in applying the good faith obligation, we would prefer to address the question by reference to Mineralogy's conduct, and whether, upon receipt of the 2017 MCPs, regardless of how the 2017 MCPs might be characterised, good faith required Mineralogy to grant tenure to the MCP Subset of Requested Areas (as defined). To that question, in our view, the answer is clearly that it did not. 454 On the objective facts, the CITIC parties had presented Mineralogy with draft MCPs that proposed activities on a significant area of land over which the CITIC parties did not have any tenure. Mineralogy recognised this to be the case and expressed its view to the CITIC parties that it was necessary for the parties to agree to commercial terms and conditions for the use of any additional land. The CITIC parties did not respond to, or acknowledge, Mineralogy's position in that regard. 455 The CITIC parties' case, in essence, is that, faced with those objective facts, Mineralogy should, nevertheless, have identified for itself precisely which areas of land the CITIC parties required a grant of additional tenure, to unilaterally conclude (the CITIC parties having not engaged with it in relation to the issue) that the CITIC parties were entitled to the additional tenure, and that Mineralogy were entitled to no consideration for the additional tenure and, then, to take steps to ensure that the tenure was granted for the purposes of the MCPs. And, -- 130 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 131 moreover, that in failing to do these things, Mineralogy was not acting in good faith, in the sense that it was, for example, acting dishonestly, unreasonably or without fidelity to their bargain. 456 This contention must be rejected. While it may be accepted that good faith required Mineralogy to engage with the CITIC parties in relation to the MCPs, and indeed, to engage with it in relation to the fact that the MCPs would require the CITIC parties to acquire additional tenure, that is, with respect, precisely what Mineralogy did. Even if it could be said that aspects of Mineralogy's correspondence at the time were intemperate and even unreasonable (which is debatable given the failure of the CITIC parties to engage in relation to the issue of tenure), the most that might be said is that each of the parties were failing to 'act in good faith towards one another'. The most that the good faith obligation in those circumstances might require was that the parties enter into real and genuine discussions in relation to the issues between them. 457 What the obligation of good faith could not do, is unilaterally require Mineralogy to grant the additional tenure pleaded as the MCP Subset of Requested Areas. Good faith – indivisibility of the 2017 MCPs 458 Related to this issue, and the operation of the obligation of good faith, is the issue of the 'indivisibility' of 'the 2017 MCPs, and the implicit tenure request contained in them' as alleged by ground 8 of the grounds of appeal. It is convenient to consider this issue at this point. 459 In that regard it is important to delineate between two different senses in which the 2017 MCPs might be said to be 'divisible' or 'severable'. 460 The first sense of 'divisibility', with which much of the CITIC parties' submissions in this context were concerned, might be described as the inherent divisibility of the 2017 MCPs. The CITIC parties referred, for example, to the fact that, under the State Agreement, it may be open to the Minister to unconditionally approve some, but not all, of the 'proposals' contained in a Project proposal (each of which is to be severally considered by the Minister).297 Relatedly, the CITIC parties made both written and oral submissions to the effect that, in determining the CITIC parties' contract claims, the Court could give 297 See Appeal ts 105 - 106, 129. The CITIC parties distinguished between 'little p' proposals and 'big P' Proposals. -- 131 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 132 such relief as is appropriate to the facts found and conclusions reached by the Court, and was not confined to the relief sought in the Statement of Claim.298 461 As abstract or theoretical propositions, so much may readily be accepted. If, indeed, it could be concluded that Mineralogy was in breach of contract (or some other cause of action) by not agreeing to the grant of tenure to some discrete part of the additional tenure sought by the CITIC parties, there is no reason in principle why the Court could not grant relief to that limited extent.299 However, as counsel for the CITIC parties accepted, that would depend upon the Court's conclusion as to whether there was a contractual obligation to grant that discrete area of tenure which had been breached (and that it was not for the Court to 'work out what might or might not have been viable').300 462 As it was, however, there was no finding of breach in relation to any discrete area of tenure, and so the availability of tailored relief did not arise.301 463 More importantly, however, this first sense of 'divisibility' (the extent to which the approval, or relief in relation to, discrete parts of an MCP could be severed) was not the sense in which the learned trial judge referred to the indivisibility of the 2017 MCPs (or the tenure requests) in any of the conclusions challenged by ground 8.302 None of the paragraphs of the Primary reasons challenged by ground 8 concerned the capacity of the Minister to unconditionally approve some, but not all, of the 'proposals' contained in a Project proposal or with the powers of the Court in the event of a finding of breach of contract. 464 Rather, all of those parts of the Primary reasons challenged by ground 8 are concerned with the manner and form in which the 2017 MCPs (and tenure requests) were 'presented' to Mineralogy by the CITIC parties. In those passages, the learned trial judge, for example, referred to the 2017 MCPs being 'drawn as global "package" proposals as provided then to Mineralogy, without invitation in December 2017, to debate or negotiate over their content'303 and that the '2017 MCPs 298 Appellants' Submissions [79] - [83] (WAB 56 - 58); Appeal ts 204 - 205. 299 As potentially foreshadowed, for example, in paragraphs B(b.) and BA(b.) of the prayer for relief (see [171] above). 300 Appeal ts 205. 301 Although the learned trial judge made some remarks as to the form of the prayer for relief at Primary reasons [108] - [109] which his Honour did observe was an 'unwelcome distraction'. 302 Namely, Primary reasons [38], [65] - [67], [339], [458], [524], [758] and [845]. 303 Primary reasons [67] (see [223] above). -- 132 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 133 were presented to Mineralogy in December 2017 as an indivisible package for Mineralogy to submit to the Minister as a Co-Proponent'.304 465 It is apparent from all of these passages in the Primary reasons that they were concerned with the way in which the CITIC parties approached their relationship with Mineralogy. This can be seen most clearly, in the following passage (challenged by ground 8):305 The peremptory in tone communications exchanged and passing as between the constantly litigating protagonists and their lawyers, have not assisted in the progressing of the MCPs. Some of Mineralogy's communications as will be exposed are most intemperate in tone. But I would also assess as rather unwise the somewhat presumptive approach of the CITIC plaintiffs and of CPMM on the evidence before me by delivering their pre-prepared MCPs to Mineralogy for it, to adopt as a Co-Proponent on an, in effect, 'here they are', 'take it or leave it', basis. That style of approach was not likely to be productive longer term. 466 It is in this sense that the learned trial judge characterised the 2017 MCPs and tenure requests as 'indivisible' or 'global' packages; namely that they had been prepared by the CITIC parties, without prior engagement with Mineralogy, and then presented to Mineralogy with the expectation that they would be submitted to the Minister in the form in which they had been prepared. 467 In that regard, in our view, the learned trial judge was correct. The MCPs were indeed presented to Mineralogy as entire packages, accompanied with the request that they be presented in that form to the Minister. This is not to say that the CITIC parties or their solicitors did not make overtures in their correspondence that they were prepared to meet to discuss the 2017 MCPs. Clearly they did.306 Mineralogy too made overtures to the CITIC parties that it was prepared to meet and negotiate. 468 But those overtures never resulted in a meeting or meaningful negotiations and so, accordingly, the parties did not identify or consider severable parts of the 2017 MCPs that might be the subject of separate consideration. At least one explanation for the absence of any meaningful negotiations in that regard is, as we have discussed above, the CITIC parties' failure to even acknowledge the issue that Mineralogy made clear should be the subject of negotiation: the grant of additional tenure. 304 Primary reasons [524]. 305 Primary reasons [339]. 306 See [116] above. -- 133 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 134 469 Whatever the cause, however, the consequence of the positions taken by the parties was that the dispute between the parties in relation to the 2017 MCPs remained at a general level (in relation to their submission as a whole), rather than in relation to detail as to what (had there been meaningful negotiations) might have been severable parts of the proposals that might have been capable of separate consideration. While the parties might be criticised as to the tone or presumption of their correspondence, the issue before the Court was not whether the parties could have dealt more productively with one another (they certainly could have). 470 On the contrary, the issue, as it related to each additional tenure request (including the tenure 'request' that the CITIC parties alleged was 'implicit' in the 2017 MCPs), was whether Mineralogy was in breach of contract in failing to agree to that request. More particularly, in relation to the alleged breach of the obligation of good faith, the issue was whether Mineralogy failed to act in good faith (for example, by acting dishonestly, unreasonably and without fidelity to the bargain) in failing to agree to the request. 471 In determining that issue of breach, in our view, the conduct of Mineralogy could only be assessed by reference to the request that it actually had before it, particularly in circumstances in which the CITIC parties had not presented a separate, several request for Mineralogy to consider. In the circumstances that arose (including the position taken by the CITIC parties), Mineralogy was either failing to act with good faith in not agreeing to the request that it was presented with, or it was not. 472 In this sense, for the purposes of assessing whether Mineralogy acted in good faith, the requests for additional tenure were indeed 'indivisible', as the learned trial judge concluded. 473 Accordingly, ground 8 has not been made out. 474 Another way to express this, is to consider the proposition, inherent in the CITIC parties' position that, even if it was not obliged to grant the entire request for additional tenure, Mineralogy was in breach of its obligation of good faith, in failing to grant some lesser area of additional tenure which was 'reasonable' for it to grant. To make good that proposition, Mineralogy would be obliged to identify for itself precisely which areas of land it was 'obliged' to grant (out of the larger 'unreasonable' request), and then take steps to ensure that the tenure was -- 134 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 135 granted over those areas. In other words, when faced with a request for additional tenure (the entirety of which it was not obliged to grant), Mineralogy was obliged to conduct the 'severance' exercise itself and to identify how much it would have been reasonable for the CITIC parties to request (had they separately requested it) and to grant that portion of the request. 475 Again, it is not enough to say that it might have been open to Mineralogy to take these steps. It would be necessary to conclude that in failing to take them, Mineralogy was not acting in good faith, in the sense that it was, for example, acting dishonestly, unreasonably or without fidelity to their bargain. 476 As with the contentions discussed at [455] to [457] above, these contentions must be rejected. While it may be accepted that good faith required Mineralogy and the CITIC parties to engage with one another and negotiate in good faith, what it could not require is for one of them (i.e. Mineralogy) to unilaterally determine for itself what might have been the reasonable outcome of a good faith negotiation and implement that outcome. 477 This brings us, conveniently, to the 2018 Tenure Request. Good faith – 2018 Tenure Request 478 The grounds of appeal (in particular ground 14) no longer maintain the CITIC parties' pleaded case in the primary proceedings that Mineralogy was in breach of contract in failing to agree to the 2018 Tenure Request (in its attenuated form 'as it related to the MCP Subset of Requested Areas').307 The grounds are confined to 'the implicit tenure request in the 2017 MCPs and the 29 November 2021 'tenure' request by 5 December 2021'.308 479 The fact of the 2018 Tenure Request remains, however, critical to any assessment of the breach of contract claim as a whole, and in particular of the alleged breach of the obligation of good faith. 480 In that regard, from the time of the 2018 Tenure Request (29 March 2018) until 26 October 2021, the 2018 Tenure Request was the only request alleged to have been made and maintained by the CITIC parties. The allegations in relation to other 'requests' (including 307 See [155] above. 308 See the chapeau to ground 14. -- 135 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 136 the alleged 2017 MCP Tenure Request) were all made by the CITIC parties on or after 26 October 2021. 481 This, in our view, and as found by the learned trial judge, had a number of significant consequences. 482 First, the 2018 Tenure Request reinforced (at least after 29 March 2018) the learned trial judge's conclusion that there was no 'implicit request for tenure' in the 2017 MCPs (i.e. the alleged 2017 MCP Tenure Request). From the date of the 2018 Tenure Request, the CITIC parties were expressly stating that they requested the additional tenure contained in that request and that Mineralogy was obliged to agree to that request. 483 Whatever had been the position of Mineralogy as to its understanding of the 2017 MCPs up until that time, following the 2018 Tenure Request there could be no doubt as to the extent of the CITIC parties' position after that time. In those circumstances there was simply no plausible basis to maintain that there was a separate 'implicit' request in existence that Mineralogy were obliged to consider (let alone agree to). 484 As the learned trial judge said, the notion of an implied 'lesser area tenure request' was 'irreconcilable with [CPMM's] express and precisely designated request for greater extra tenure areas from Mineralogy made at 29 March 2018'.309 The learned trial judge was correct to so conclude. Significantly, therefore, Mineralogy's conduct (and particularly whether it failed to act in good faith) was to be assessed by reference to the request for tenure that had actually been made and which the CITIC parties maintained until 26 October 2021. 485 Secondly, in our view, the 2018 Tenure Request was, as the learned trial judge said, 'excessive and extravagant'.310 It included areas that could not conceivably have been required to be part of the Site Lease Area for the purposes of the Sino Iron Project. The 2018 Tenure Request, for example, included portions of those areas identified in the MRSLAs as non-exclusive 'Access Areas', particularly the road from the mining areas to the port and, the entirety of the offshore general purpose licence, G08/51.311 Those areas had long been the subject of the Access Licence under the MRSLAs and there was no suggestion 309 Primary reasons [562] (see [219] above). 310 Primary reasons [457] (see [213] above). 311 See [123] above. -- 136 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 137 that the Access Licence was insufficient for the CITIC parties' purposes. Applying the standard of 'reasonably required' upon which the learned trial judge made his factual findings, the learned trial judge concluded that the 2018 Tenure Request could not be assessed as ''reasonably required', even at a lower tenure acquisition standard of merely optimal or desirable to hold'.312 There was no appeal from that finding. 486 The extravagant nature of the 2018 Tenure Request is relevant to the assessment of Mineralogy's conduct in response to the request and whether that conduct was otherwise than in good faith. 487 Also relevant to that assessment is the position taken by the CITIC parties in relation to the 2018 Tenure Request. As with the position up until that time, the CITIC parties did not, in the 29 March 2018 letter, acknowledge Mineralogy's previous statements to the effect that it was necessary for the CITIC parties to negotiate an agreement for additional tenure. As we have said, the CITIC parties presented the 2018 Tenure Request as something of a fait accompli in relation to which there could be little question. It continued to adopt this approach in the correspondence which followed.313 488 The position adopted by the CITIC parties in failing to acknowledge that there could even be a question as to whether Mineralogy were entitled to commercial terms for the provision of any additional tenure to Sino Iron or Korean Steel was not conducive to a good faith negotiation between the parties in relation to additional tenure. On the contrary, it had all the hallmarks of commercial 'stonewalling' or 'brinksmanship'. Indeed, whether intentionally or not, the CITIC parties' correspondence mischaracterised the very issue that Mineralogy had sought to raise. For example, while Mineralogy had consistently referred to the need for commercial consideration in return for its tenure,314 the CITIC parties disingenuously described Mineralogy as seeking commercial consideration for its 'co-operation'.315 489 It is also noteworthy that, on 5 June 2018, when the CITIC parties finally did identify a basis upon which they were entitled to additional tenure at no cost, they asserted that 'it was implicit in [the Takeover 312 Primary reasons [459] (see [213] above). 313 See [128], [139] above. 314 See [101], [140] above. 315 See [141] above. -- 137 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 138 Agreements to acquire Sino Iron and Korean Steel] that sufficient areas … would be made available to those companies at no additional cost'. If that was the basis upon which it was suggested that Mineralogy, in good faith, should have recognised that it was obliged to grant the additional tenure at 'no additional cost', it is passing strange that the CITIC parties never again contended that this was the basis that it was entitled to the additional tenure, including when it commenced the primary proceedings months later.316 490 In those circumstances, whatever criticisms might be made of Mineralogy's intemperate tone in the correspondence between the parties, it cannot be said that Mineralogy alone bore the entirety, or even the majority, of the responsibility for the parties failing to reach an agreement over the grant of additional tenure. Less still could Mineralogy be said to be acting otherwise than in good faith by not capitulating to the 2018 Tenure Request and granting the additional tenure identified in it. 491 Nor, for the same reasons as discussed at [455] to [457] and [474] to [476] above, did the obligation of good faith require Mineralogy to conduct a 'severance' exercise itself and identify how much of the 2018 Tenure Request would have been reasonable for the CITIC parties to request (had they separately requested it) and to unilaterally grant that portion of the tenure requested. 492 The 2018 Tenure Request having been the only tenure request relied upon by the CITIC parties until 26 October 2021, it remains to consider the 2021 Tenure Request. Good faith – 2021 Tenure Request 493 The 2021 Tenure Request cannot be divorced from the litigation in the primary proceedings itself. The request was made late in the proceedings (shortly prior to trial) and was specifically made as part of what the CITIC parties described as its efforts to narrow the issues in dispute in the primary proceedings.317 494 In that regard the 2021 Tenure Request did not have the extravagance of the 2018 Tenure Request, removing, as it did, the claim 316 The CITIC parties did plead that Mineralogy's failure to agree to the 2018 Tenure Request was in breach of the Takeover Agreements Assistance Terms, the Takeover Agreements Implied Good Faith Term and the Takeover Agreements Implied Co-operation Term. None of those terms, however, was in the form alleged in the letter of 5 June 2018. 317 See [160] above. -- 138 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 139 for the road from the mining areas to the port and the offshore general purpose licence to be included as part of the Site Lease Area. Indeed, as noted above, the learned trial judge concluded that, leaving aside the 'no consideration' issue, all of the tenure requested in the 2021 Tenure Request, although not critical or necessary, met the 'lesser' standard of being optimal or desirable for the CITIC parties' purposes.318 495 Nevertheless, the learned trial judge concluded, consistent with his Honour's formulation of the content of the good faith obligation, that the 2021 Tenure Request was not a 'reasonable request' for additional tenure. His Honour identified a number of bases for concluding that the 2021 Tenure Request was not a reasonable request: the absence of an offer to pay consideration;319 the indivisible nature of the request; 320 the lack of sufficient technical information to consider the request;321 and the insufficient timeframe within which Mineralogy could consider the request. 322 The learned trial judge also drew attention to what his Honour described as a 'disconformity' between the additional stockpile areas depicted in the 2021 Tenure Request and those depicted in the 2017 MCPs.323 His Honour does not appear to have regarded this as necessarily fatal to the 2021 Tenure Request (on its own), but as something that 'needed to be corrected'.324 496 Each of the learned trial judge's bases for concluding that the 2021 Tenure Request was not a 'reasonable request' were the subject of challenge in the grounds of appeal, as was the alleged 'disconformity' in the depictions of the stockpiles. We have already addressed his Honour's conclusion in relation to the 'no consideration' issue at [431] to [432] above. 497 In relation to the 'indivisibility' of the 2021 Tenure Request (challenged by ground 9 of the grounds of appeal), our conclusions in relation to ground 8 (concerning the 2017 MCPs and any implicit tenure request in them) apply equally to the 2021 Tenure Request.325 The 2021 Tenure Request was indeed presented to Mineralogy as an 'inseparable tenure package' as the learned trial judge concluded. 318 See [211] above. 319 See [194] - [195] above. 320 See [225] - [227] above. 321 See [228] - [235] above. 322 See [236] - [239] above. 323 See [235] above. 324 Primary reasons [2462(w)]. 325 See [459] - [471] above. -- 139 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 140 498 Indeed, if anything, the 2021 Tenure Request was even more clearly a request that was not open to discussion or further negotiation. The letter containing the 2021 Tenure Request made clear that if Mineralogy did not agree to the request within 7 days, the CITIC parties would commence fresh proceedings.326 Those proceedings were indeed commenced on the very day that Mineralogy responded to the 2021 Tenure Request, inviting the CITIC parties to meet.327 Seen in context, the 2021 Tenure Request was more in the nature of 'positioning' for the purposes of the litigation than an invitation to negotiate. 499 Ground 9 has not been made out. 500 Grounds 10, 11 and 12 can be considered together. They concern the learned trial judge's conclusions that the 2021 Tenure Request did not provide sufficient information, including as to the proposed terms of the licence sought in the request328 (ground 10), that it did not contain sufficient technical information concerning the requirements for the proposed TSF329 (ground 11) and that Mineralogy was given insufficient time within which to respond to the request330 (ground 12). 501 There is no real doubt that, as a matter of fact, the 2021 Tenure Request did not provide any detail as to the proposed terms of the licence sought in the request. Similarly, the cross-examination of Mr Goodwin relied upon by the learned trial judge in relation to the TSF did support the conclusion that there would be additional information required for the recipient of the request to be able to assess the need for all of the additional areas sought for further tailings storage. 502 The real gravamen of grounds 10, 11 and 12 is whether those matters were such as to 'render' the 2021 Tenure Request 'unreasonable'.331 To that end, the CITIC parties emphasised that they had made offers to meet with Mineralogy to discuss the 2017 MCPs332 and that Mineralogy had been provided the relevant technical 326 See [163] above. 327 See [164] - [165] above. 328 See [232] - [233] above. 329 See [230] - [231] above. 330 See [238] - [239] above. 331 See Appellants' Submissions [96] (WAB 60). 332 Appellants' Submissions [97(b)] (WAB 61). -- 140 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 141 information in the course of the litigation, including by way of Mr Goodwin's witness statement.333 503 The fact that Mineralogy might have been able to obtain further information in relation to the 2021 Tenure Request from other sources, however, is not to the point of the learned trial judge's findings in this context. As we observed at [469] above, for present purposes, the issue before his Honour was not whether the 2021 Tenure Request was a reasonable starting point for discussions between the parties, or whether the parties could have dealt with each other more productively at various times. 504 Rather the issue was ultimately whether, having received the 2021 Tenure Request on 29 November 2021, Mineralogy was in breach of its obligation of good faith in not acceding to the request before 8 December 2021 (i.e. when the CITIC parties commenced the fresh proceedings in respect of that request). That question, and the related request as to whether it was reasonable of the CITIC parties to require Mineralogy to do so, had to be assessed by reference to Mineralogy's position at the time that the request was received (having regard to all of the matters challenged by grounds 10, 11 and 12 in combination). 505 It was in that context that the learned trial judge concluded that the 2021 Tenure Request was not 'reasonable'. In relation to the information identified in Mr Goodwin's cross-examination, for example, his Honour expressed the conclusion that the recipient of the request 'objectively evaluated, would not act unreasonably in failing to accede to such a tenure request'.334 Similarly, in relation to the timeframe, his Honour said that the 2021 Tenure Request was compromised from 'not allowing enough time – in order for it to be assessed as a reasonably made request at the time it was made'.335 506 In these respects the learned trial judge was, in our view, clearly correct. Indeed, in that regard, his Honour specifically recognised, as the CITIC parties submitted in support of ground 11, that the technical information identified by his Honour had been provided in Mr Goodwin's witness statement of 20 October 2021. That submission, his Honour observed, lost its persuasive force having regard to the 333 Appellants' Submissions [97(c)] (WAB 61). 334 Primary reasons [1482] (see [230] above). 335 Primary reasons [1831] (see [238] above). -- 141 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 142 timeframe within which Mineralogy was required to consider the request. 336 507 Ultimately, in this regard, the learned trial judge did not conclude that the 2021 Tenure Request was an unreasonable basis upon which to commence negotiations. On the contrary, his Honour concluded that that is precisely what the 2021 Tenure Request was: 'an opening basis for a negotiation to be conducted between the MRSLA parties with them mutually acting in good faith'.337 What was 'unreasonable' was that such a request be considered, and indeed accepted, within 7 days of its receipt. 508 For these reasons, grounds 10, 11 and 12 have not been made out. 509 Ground 13, concerning what the learned trial judge described as a 'disconformity' between the additional stockpile areas depicted in the 2021 Tenure Request and those depicted in the 2017 MCPs, may also be dealt with fairly briefly. The CITIC parties submitted that there was no such disconformity and that their analysis of the maps referred to by his Honour in this context (in Exhibit J),338 revealed nothing to support a finding of disconformity.339 510 Mineralogy, in its oral submissions, took the Court to a comparison of Map 56 in Exhibit J (being an enlargement of the northern portion of the 2021 Tenure Request)340 and Appendix B Plan 2 of the 2017 MCPs.341 A (very) close comparison of those areas does indeed reveal that the polygons depicting the stockpiles at the port do differ in a number of respects.342 511 Those differences, while very subtle and probably of little consequence, may nevertheless properly be described as revealing a 'disconformity'. The challenge to the learned trial judge's finding in that regard is therefore not made out. More importantly, however, while his Honour described the disconformity as something to be corrected if an agreement on commercial terms was formalised, the learned trial judge does not appear to have regarded the 'disconformity' to have been an 336 Primary reasons [1484] - [1485]. 337 Primary reasons [1087] (see [234] above). 338 Primary reasons [1622]. 339 Appeal ts 279. 340 Ex J, Map 56 (GAB Vol 3: p 633). 341 Ex 1688 (GAB Vol 10: p 2990); Ex 1689 (GAB Vol 10: p 3042). 342 Appeal ts 496 - 497 (the various differences were set out in an Aide Memoire provided by Mineralogy in the course of the hearing). -- 142 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 143 independent basis for concluding that the 2021 Tenure Request was not a 'reasonable request'. 512 Ground 13 has not been made out. 513 For the above reasons, the learned trial judge has not been shown to be in error in concluding that the 2021 Tenure Request was not a 'reasonable request' for additional tenure. 514 Again, however, we would prefer to express our conclusions in relation to the 2021 Tenure Request not in terms of whether it was a 'reasonable request' (as the learned trial judge did), but by reference to the obligation of Mineralogy to act in good faith towards the CITIC parties. 515 In that regard, we have reached the same conclusion in relation to the other requests for additional tenure. 516 As we noted earlier, the 2021 Tenure Request was more in the nature of 'positioning' for the purposes of the litigation than an invitation to negotiate. While the additional tenure sought by the request did not have the extravagance of the 2018 Tenure Request, the extent to which the tenure sought in the request was truly necessary or critical for the continuation of the Project was, at the very least, contestable. Indeed, as the learned trial judge concluded, following the contest at trial, most of the areas sought in the 2021 Tenure Request were not necessary, essential or critical to the continuation of the Project.343 Whether or not that was the correct 'threshold' for determining what was 'reasonably required',344 it is nevertheless relevant to whether Mineralogy acted otherwise than in good faith in not acceding to the request. 517 In circumstances in which Mineralogy was requested to provide all of the tenure in the 2021 Tenure Request, which was well in excess of that which it had granted pursuant to the existing contractual arrangements, and which was, at the very least, arguably in excess of what was required for the continuation of the Project and in circumstances in which the CITIC parties had refused to consider negotiating any commercial consideration for the provision of the additional tenure, Mineralogy did not act dishonestly, unreasonably or 343 See [209] above. 344 As to which see [288] - [311] above. -- 143 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 144 without fidelity to their bargain by failing to grant that additional tenure to the CITIC parties. 518 To repeat what we said above in relation to the alleged 2017 MCP Tenure Request, while it may be accepted that good faith (together with the obligation of mutual co-operation) required Mineralogy to consider, and to engage with the CITIC parties in relation to, the requests for additional tenure, the obligation of good faith could not unilaterally require Mineralogy to grant the additional tenure. The obligation of good faith did not require Mineralogy to so subordinate its own interests that it was required, for no cost, to provide the tenure requested by the CITIC parties. 519 Grounds 14(d), (e) and (f) have not been made out. Reasonable assistance – ground 14(b) 520 The Takeover Agreements Assistance Terms expressly include the notion of a 'reasonable request' inasmuch as Mineralogy's obligation under those terms is to provide 'such reasonable assistance as CITIC or [or Sino Iron or Korean Steel] reasonably request'. In that regard, many of the learned trial judge's conclusions as to whether the requests for additional tenure were 'reasonable requests' are relevant to the Takeover Agreements Assistance Terms. 521 In relation to these 'assistance' terms, the learned trial judge's specific finding was that they did 'not extend far enough to impose [an] additional tenure obligation upon Mineralogy, let alone on a basis of for no greater payment in return for the additional tenure areas sought'.345 Once again, the significance of the 'no consideration' issue will be readily apparent. 522 In that context, his Honour referred to the promises of 'assistance' and 'reasonable assistance' to be 'generalised promises'346 or 'bland and generic'.347 The significance, for the learned trial judge, of the 'generalised' or 'generic' nature of the promises is not entirely clear. It may be that his Honour considered, as a matter of contractual construction, that a reasonable person would expect an obligation to provide additional tenure (beyond that which had been already agreed) to be addressed more specifically, rather than to be found in a general obligation of assistance. 345 Primary reasons [829]. 346 Primary reasons [962]. See also Primary reasons [839]. 347 Primary reasons [577]. -- 144 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 145 523 In any event it is clear that his Honour concluded that the Takeover Agreements Assistance Terms did not extend to oblige Mineralogy to grant the additional tenure requests, including the two requests relied upon in ground 14 (that is, 'the implicit tenure request in the 2017 MCPs and the 29 November 2021 'tenure' request by 5 December 2021'). 524 For the reasons that follow, in our view the learned trial judge was correct to so conclude. In failing to grant the additional tenure sought by the CITIC parties, Mineralogy was not in breach of its obligation to provide such reasonable assistance as the CITIC parties reasonably request for the purposes of the Project. Construction of Takeover Agreements Assistance Terms 525 We commence with the proper construction of the Takeover Agreements Assistance Terms. 526 In construing the Takeover Agreements as a whole, it is an important matter of context that those agreements refer to, and were intended to operate within, a suite of contractual arrangements already in place between Mineralogy and Sino Iron and Korean Steel. Those contractual arrangements included the MRSLAs and the Facilities Deed (which are each defined as 'Project Agreements' within the meaning of the Takeover Agreements). The obligations of 'reasonable assistance' must be understood in that context. 527 In that regard, save where they make express provision to the contrary, the Takeover Agreements do not purport to alter the parties' rights under the Project Agreements (including the MRSLAs) or confer rights in addition to those the subject of the various agreements between the parties. 528 Understood in that context, in our view, the obligation to provide 'reasonable assistance' to progress the development of the Project, contemplates 'assistance' of an administrative, technical or operational nature that is required in the performance of the Project Agreements. It does not contemplate, and could not be reasonably understood to require, substantive changes to the parties' rights under those Project Agreements themselves. 529 This intended scope of the 'assistance' contemplated by the Takeover Agreements Assistance Terms is, in our view, reflected in the examples provided in subclauses (i) and (ii) of each of those clauses, -- 145 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 146 namely making available information, plans and studies and providing employees on secondment.348 Those are matters of an operational nature to be provided in furtherance of the performance of the Project; they do not involve Mineralogy being required to alter the agreements between the parties or otherwise give up rights to the CITIC parties. A reasonable person would understand the obligation of 'reasonable assistance' to extend to assistance of that kind. 530 That Mineralogy is not obliged to provide 'assistance' that would require it to forgo its own commercial interests is also confirmed by the express requirement in the Takeover Agreements Assistance Terms that any 'reasonable assistance' is to be provided 'at CITIC's cost'. Similarly, any assistance in the form of employees on secondment is to be provided 'on terms agreed between Mineralogy' and either Sino Iron or Korean Steel. No doubt the 'costs' incurred or the 'terms agreed' in accordance with these provisions would themselves have to be 'reasonable' in all of the circumstances. Nevertheless, these provisions make clear that, in providing assistance under the Takeover Agreements Assistance Terms, Mineralogy is not to be 'out of pocket'. 531 Indeed, it is difficult to see how assistance could be provided 'at CITIC's cost', unless Mineralogy were compensated for any effect on its commercial interests in providing such assistance. 532 Beyond the express words that any assistance provided under the Takeover Agreements Assistance Terms is to be provided 'at CITIC's cost', the very notion of 'reasonableness' in those terms precludes an obligation whereby Mineralogy would be required, in the performance of its obligations, to forego its own commercial interests. 533 As the High Court observed in Electricity Generation Corporation v Woodside Energy Ltd, in relation to an obligation to use 'reasonable endeavours' to achieve a contractual object, such an obligation is conditioned by what is reasonable in the circumstances, including circumstances that may affect an obliger's business.349 The Court said:350 An obligor's freedom to act in its own business interests, in matters to which the agreement relates, is not necessarily foreclosed, or to be 348 See [73] above. 349 Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 (Woodside) [41] (French CJ, Hayne, Crennan & Kiefel JJ). 350 Woodside [42] (French CJ, Hayne, Crennan & Kiefel JJ). -- 146 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 147 sacrificed, by an obligation to use reasonable endeavours to achieve a contractual object. 534 While the Takeover Agreements Assistance Terms are in different terms to a 'reasonable endeavours' clause, in our view, similar considerations apply to the former provisions. In determining what is 'reasonable assistance' under the Takeover Agreements Assistance Terms in any given case, particularly given the requirement that any such assistance be provided 'at CITIC's cost', Mineralogy's own business and commercial interests are a relevant consideration. In that regard, to require Mineralogy to forgo, or give up, its own commercial interests, is not to require 'reasonable assistance'. Application of Takeover Agreements Assistance Terms 535 Properly construed, Mineralogy's obligation to provide 'reasonable assistance' under the Takeover Agreements Assistance Terms did not oblige it to agree to the request for additional tenure in either the alleged 2017 MCP Tenure Request or the 2021 Tenure Request. 536 What was requested of Mineralogy in those requests was not a request for 'assistance' in the development of the Project in accordance with the commercial bargain reflected in the Project Agreements but a request to alter that commercial bargain. The additional tenure sought in those requests was clearly the property of Mineralogy, in relation to which Sino Iron and Korean Steel had no legal interest and it was tenure in addition to that which the parties had expressly bargained in the MRSLAs. 537 Mineralogy was not obliged to alter its commercial bargain, particularly for no consideration, under the guise of an obligation to provide 'reasonable assistance' in the furtherance of that bargain. 538 In addition, as the obligation on Mineralogy to provide 'reasonable assistance' is predicated upon a 'reasonabl[e] request' by Sino Iron or Korean Steel, the learned trial judge's conclusions that the tenure requests were not 'reasonable requests' also precludes the application of the Takeover Agreements Assistance Terms in the present case. Those findings have not been shown to be in error.351 While his Honour made those findings in a broader context, they provide an additional basis for concluding that Mineralogy was not in breach of the Takeover Agreements Assistance Terms in not acceding to the tenure requests. 351 See [431] - [432], [514] above. -- 147 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 148 539 Another way of approaching the application of the Takeover Agreements Assistance Terms in relation to the tenure requests, or perhaps an illustration of the challenge of being able to apply them to the present issue, is the requirement that any 'reasonable assistance' be provided 'at CITIC's cost'. Necessarily, for Mineralogy to have provided a lease under the MRSLAs to the additional tenure would come at some 'cost' to Mineralogy. At the very least there would be an opportunity cost in providing the tenure as it would prevent Mineralogy from freely dealing with those areas in the future. Of course, the quantification of that 'cost' may be a different matter but it could not plausibly be alleged that the provision of the additional tenure would come at no cost to Mineralogy. 540 According to the express terms of the Takeover Agreements Assistance Terms, if Mineralogy were to provide 'reasonable assistance' in the form of additional tenure, CITIC was required to bear the 'cost' of that assistance. Prima facie, at least, this would suggest that CITIC would be required by the Takeover Agreements Assistance Terms to compensate Mineralogy for the 'cost' of providing the assistance (i.e. the tenure). Otherwise the assistance would be provided at 'Mineralogy's cost' rather than 'at CITIC's cost'. 541 There is, accordingly, an inherent contradiction in the suggestion that Mineralogy could be obliged to provide tenure to Sino Iron and Korean Steel as 'reasonable assistance' under the Takeover Agreements Assistance Terms without any consideration for the cost of providing that tenure, while at the time providing that assistance 'at CITIC's cost'. 542 Ground 14(b) has not been made out. Conclusion as to the claim to additional tenure 543 The CITIC parties have failed to establish any of the grounds of appeal in relation to their requests for additional tenure. The learned trial judge's rejection of the CITIC parties' claim that Mineralogy was in breach of contract in failing to agree to the requests for additional tenure was correct. 544 Accordingly, the consequential ground in relation to the relief sought as to the additional tenure (ground 17) also fails. Remaining grounds of appeal 545 The remaining grounds of appeal concern the CITIC parties' claim that Mineralogy was contractually obliged to submit the 2017 MCPs -- 148 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 149 (grounds 3(c), 15 and 16) or make the re-purposing request (ground 18). 546 In light of the primacy of the tenure requests (as discussed at [266] to [275] above), those grounds of appeal do not arise for consideration and are unnecessary to decide. 547 In particular, as the learned trial judge correctly concluded, unless the CITIC parties were entitled to the additional tenure, or the parties reached an agreement in that regard, Mineralogy was not obliged to submit the 2017 MCPs. Grounds 3(c), 15 and 16 are unnecessary to decide. 548 The same conclusion applies to the re-purposing request. The effect of the re-purposing request, if granted, would have been to change the purposes for which Mineralogy could use general purpose leases 08/53, 08/54 and 08/63. Those were all tenements in relation to which the CITIC parties had no legal interest and which formed part of the additional tenure request. As with the 2017 MCPs generally, unless the CITIC parties were entitled to the additional tenure, or the parties reached an agreement in that regard, the re-purposing request was at best premature. Mineralogy was, accordingly, not obliged to make the re-purposing request. Ground 18 is unnecessary to decide. Conclusion as to appeal 549 For the forgoing reasons, the CITIC parties' appeal must be dismissed. Cross-appeal 550 As noted at the commencement of these reasons, the CITIC parties were successful in their claim that Mineralogy be required to submit the Programme of Works to the Department of Mines. The learned trial judge, accordingly, made an order requiring Mineralogy to submit the Programme of Works in the form of an annexure to the orders for judgement on the primary proceedings.352 His Honour's consequential order that otherwise dismissed the CITIC parties' claims for damages also made an exception 'in so far as they relate to the … claims for breach of contract in relation to the Programme of Works'.353 352 Orders for Judgement After Trial dated 10 March 2023, Order 1 (BAB Vol 1: p 2). 353 Orders for Judgement After Trial dated 10 March 2023, Order 3 (BAB Vol 1: p 2). -- 149 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 150 551 Mineralogy's cross-appeal challenges the learned trial judge's conclusions in relation to the Programme of Works. 552 The Court was advised at the hearing of the appeal that this order has in fact been carried into effect and the Programme of Works had been submitted in accordance with the order (indeed, given the nature of the works and the lapse of time, one might reasonably infer that the works themselves have been completed). Accordingly, Mineralogy accepted that appealing the order requiring submission of the Programme of Works was of no utility and the cross-appeal was confined to the consequential order.354 Findings challenged in cross-appeal 553 As stated at [132] above, the Programme of Works proposed investigative work relevant to the 2017 MCPs, that was confined to areas that were within the existing Site Lease Area under the MRSLAs (namely, mining leases M 08/123, M 08/124 and M 08/125, miscellaneous licences M 08/264, M 08/265, M 08/266 and the southern portion of general lease G 08/53). That work would, essentially, involve investigative drilling for mine planning and TSF planning. 554 The CITIC parties' claim in relation to the submission of the Programme of Works relied upon, inter alia, the MRSLA Express Government Approvals Term355 and the Takeover Agreements Assistance Terms.356 555 His Honour identified the only 'resistance stance argument' by Mineralogy in relation to the Programme of Works as being that there was357 an interdependency between the cooperation and assistance that Mineralogy was asked to provide to advance this interim PoW measure, with the contentious MCP and disputed extra tenure issues – that are more centrally in focus within the litigation. 556 The learned trial judge's conclusions in relation to the Programme of Works were as follows:358 354 Appeal ts 625 - 626. 355 Statement of Claim [162(b)]. 356 Statement of Claim [162(a)(ii)]. 357 Primary reasons [2427]. 358 Primary reasons [2430] - [2431]. -- 150 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 151 In considering the CONSOC subpars 162(a)(ii) and (b) assistance obligation pleas put against Mineralogy vis-à-vis advancing the PoW, my assessment is that all of the contractual 'assistance', or 'reasonable assistance' express term Project Agreement promises – made by and still binding upon Mineralogy (see par 8 of the CONSOC to identify such Project Agreements) – have obliged Mineralogy to provide its consent to CPMM (acting for Sino Iron and Korean Steel) submitting to DMIRS on their behalf, or for it to submit the proposed PoW to DMIRS for an approval – in the absence of any more substantive grievance identified over what is proposed by those drilling works. There is nothing else substantively raised against the PoW progressing, as I would discern. I would reject the interdependency defence to the MCPs arguments as unsustainable. The PoW are much smaller scale and wholly discrete. They do not carry with them any of the same controversies as present elsewhere within this trial, such as advancing over the MCPs, or providing the additional tenure areas sought compulsorily from Mineralogy. As also mentioned, Mr Goodwin's observations concerning a need for the DMIRS regulatory approval, seen at par 104 of his primary witness statement, effectively stands as wholly uncontradicted. I note from the submissions that the legal basis for establishing a need for DMIRS approval for the PoW to proceed is said there to arise out of the specific conditions applicable by terms of the mining tenement leases, or on the terms of general purpose leases themselves. That aspect of the suggested legal requirement for approval for the PoW to be undertaken was not really ever a subject of much greater elaboration in the Primary Trial. Nevertheless, as I do accept Mr Goodwin's trial evidence more generally, I will also accept his essentially unchallenged evidence as to the need for obtaining this regulatory approval from DMIRS for the PoW to proceed, as so stated. 557 His Honour's reference in this passage to 'the CONSOC subpars 162(a)(ii) and (b) assistance obligation pleas' is a reference to the MRSLA Express Government Approvals Term and the Takeover Agreements Assistance Terms. Grounds of cross-appeal 558 The grounds of the cross-appeal are as follows:359 1. The Primary Judge erred in law in the proper construction of clauses 15.1 of the MRSLAs and 7.1(e) / (i) of the Takeover Agreements in failing to hold that before Mineralogy had an obligation to submit a proposal under those provisions the CITIC parties had to demonstrate a need to submit such proposal for the purpose of performing the MRSLAs, so that 359 WAB 144. -- 151 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 152 Mineralogy could assess in an informed way whether to do so, having regard to its own commercial interests. [2430] of the Reasons. 2. The Primary Judge erred in fact and law by failing to construe the PoW Request in the letter of 23 April 2018, which in terms stated the PoW was '… to aid in defining the proposed Mine Continuation Proposal …', as being interdependent with Sino Iron and Korean Steel's other requests, which the Primary Judge had earlier found Mineralogy was not contractually obliged to accede to. [2417] and [2430] of the Reasons. 3. The Primary Judge erred in fact and law by finding that submission of the PoW: (a) was 'reasonable assistance… to progress development of the Project' required by clauses 7.1(e) / (i) of the Takeover Agreements; (b) was 'assistance' required by clauses 15.1(c) of the MRSLAs, being assistance to obtain Government Approvals "required to implement [Sino's/Korean's] Project and to carry out [Sino's/Korean's] Activities', in circumstances where the PoW was inutile without the grant of additional tenure and/or the submission and approval of the 2017 MCPs. [2430] of the Reasons. Cross-appeal – ground 1 559 Ground 1 of the cross-appeal ostensibly alleges an error of law as to the proper construction of the MRSLA Express Government Approvals Term and the Takeover Agreements Assistance Terms. In that regard, Mineralogy submits that obligations of this kind do not preclude the relevant party from considering its own commercial interests and that, in assessing whether Mineralogy was in breach of those terms by failing to submit the Programme of Works, regard may be had to Mineralogy's own commercial interests. 560 As a matter of construction so much may be readily accepted. Indeed, at the hearing of the cross-appeal, the CITIC parties accepted -- 152 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 153 that the 'reasonableness' of assistance can be informed by the commercial interests of a contracting party.360 561 In that regard, we have already concluded in the context of ground 14(a) in CITIC's appeal that, in determining what is 'reasonable assistance' under the Takeover Agreements Assistance Terms in any given case, Mineralogy's own business and commercial interests are a relevant consideration and that to require Mineralogy to forgo, or give up, its own commercial interests, is not to require 'reasonable assistance'.361 562 While the MRSLA Express Government Approvals Term does not expressly use the word 'reasonable', we also accept that, properly construed, Mineralogy's obligation to 'give [Sino Iron and Korean Steel] assistance in obtaining Government Approvals' is also not an 'absolute or unconditional obligation'.362 563 Nor, indeed, do we understand the learned trial judge to have concluded otherwise in relation to the construction of the MRSLA Express Government Approvals Term and the Takeover Agreements Assistance Terms. 564 The real issue before his Honour was whether there, in fact, was some substantive issue, relating to Mineralogy's interests, that justified its failure to submit the Programme of Works. The only matter identified by the learned trial judge as having been raised against the submission of the Programme of Works was the interdependency argument. His Honour's conclusion in that regard is the subject of grounds 2 and 3 of the cross appeal. Otherwise, as his Honour said, '[t]here is nothing else substantively raised against the PoW progressing'. 565 Accordingly (and leaving aside the interdependency argument), his Honour concluded that there were, in fact, no commercial interests of Mineralogy that might be adversely affected by the Programme of Works. 566 In that regard, in our view, the learned trial judge was correct. At the hearing of the appeal counsel for Mineralogy accepted that there was no evidence or contention to the effect that the Programme of 360 Appeal ts 651. To the extent that the CITIC parties written submissions in answer to the cross-appeal suggested otherwise (at [24] - [26]; WAB 251 - 252), the CITIC parties withdrew that submission. 361 See [532] - [535] above. 362 Woodside [41] (French CJ, Hayne, Crennan & Kiefel JJ). -- 153 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 154 Works could have some adverse consequence for Mineralogy. As counsel candidly put it: 'Effectively, it was exploratory work in an area that was always going to be, one way or another, explored'.363 It was also work, as the learned trial judge held, that was proposed to be carried out entirely within the Site Lease Area, over which the CITIC parties already had tenure. 567 In that context, Mineralogy's contention that it needed more 'information' to 'properly assess whether the [P]rogramme of [W]orks was one that could and should be supported',364 was ultimately part of the interdependency argument, as it concerned Mineralogy's requests in relation to the 2017 MCPs. Ironically, of course, the purpose of the Programme of Works was to obtain more detailed information so as to enable, for example, more accurate mine planning and grade estimation. Insofar as Mineralogy submitted that 'even within the [S]ite [L]ease [A]rea, Mineralogy had an interest in making sure [the area] was efficiently promoted',365 that was an interest in favour of the investigative works in the Programme of Works, not a basis for resisting them. 568 At the hearing of the appeal, Mineralogy also submitted that an approval for 'something that might turn out to be completely futile' could adversely affect its relationship with State government and so impact on its commercial interests.366 It is not apparent that such an interest was put to the learned trial judge and, in any event, in our view, this alleged 'interest' was speculative. There is nothing to suggest that the submission of the Programme of Works could have adversely affected Mineralogy's relations with the State government. 569 Ground 1 of the cross-appeal has not been made out. Cross-appeal – grounds 2 and 3 570 Grounds 2 and 3 of the cross-appeal can be considered together, as they both concern the 'interdependency' argument and the related proposition that the Programme of Works was 'inutile' without the grant of additional tenure and the submission of the 2017 MCPs. 571 In its terms, ground 2 appears directed to an alleged error in the learned trial judge's 'construction' of the 23 April 2018 letter enclosing 363 Appeal ts 643. 364 Appeal ts 626. 365 Appeal ts 626. 366 Appeal ts 644. -- 154 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 155 the Programme of Works; namely that his Honour erred 'by failing to construe' the request as being interdependent with the CITIC parties' other requests. The learned trial judge's reasons in relation to the Programme of Works, however, did not include any particular 'construction' of the 23 April 2018 letter. 572 In any event, to the extent that it might have been suggested that the request to submit the Programme of Works was suggested by the CITIC parties in the 23 April 2018 letter as being interdependent with the requests for additional tenure and the request to submit the 2017 MCPs, the CITIC parties made clear in the letter from CPMM dated 1 May 2018 that the request to submit the Programme of Works was not connected with the other issues in dispute between the parties.367 573 The real issue raised by grounds 2 and 3 is whether, in substance, the request to submit the Programme of Works was interdependent with the other requests from the CITIC parties such that it was 'inutile' without those other requests being granted. 574 In our view, the learned trial judge was correct to reject the 'interdependency' argument. The Programme of Works was, as we have said, investigative work required for the purpose of properly preparing detailed plans for the continuation of mining on the Mining Leases. While it is true that the results of those works would have been used for the detailed design and planning for the 2017 MCPs (had the 2017 MCPs been approved), the nature of the works is that they would provide information that would be relevant to any proposal for continued mining on the Mining Leases. As Mineralogy accepted, it was exploratory work in an area that was always going to be explored. 575 The obligations of assistance in the MRSLA Express Government Approvals Term and the Takeover Agreements Assistance Terms necessarily include reasonable assistance in relation to investigative, planning and preparatory work. The Programme of Works was directed to such work, for the purpose of the future operation of the Project. 576 The fact that negotiations between Mineralogy and the CITIC parties in relation to the 2017 MCPs broke down (principally, it would appear, because of the dispute over additional tenure) does not relieve the parties of the mutual obligation to co-operate with one another generally in relation to the continuation of the Project. The Programme of Works was necessary whether the Project was to continue in the 367 See [134] above. -- 155 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 156 form of the 2017 MCPs, or some other mine continuation proposal negotiated between the parties. There being no potential adverse consequence for Mineralogy from the Programme of Works, Mineralogy were obliged to submit it for approval. 577 Grounds 2 and 3 of the cross-appeal have not been made out. Conclusion as to cross-appeal 578 None of the grounds of appeal in Mineralogy's cross-appeal have been established. The cross-appeal must be dismissed. Conclusion and orders 579 We would make orders dismissing the CITIC parties' appeal and Mineralogy's cross-appeal. 580 We will hear the parties in relation to costs. -- 156 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 157 Schedule 1 – Table of Defined Terms Defined Term Paragraph 2016 MCPs [97] 2017 MCPs [12] 2017 MCP Tenure Request [158] 2018 Tenure Request [120] 2021 Tenure Request [160] Additional tenure [13] Agreement [8] Approved proposals [8] CITIC [1] Co-proponents [26] CPMM [33] Department of Mines [13] Direct Agreement [35] Direct Agreement Implied Good Faith Term [78] Direct Agreement Implied Co-operation Term [78] Facilities Deeds [32] Fortescue Coordination Deed [36] FCD Implied Good Faith Term [84] FCD Implied Co-operation Term [84] General Arrangement Map Deed [57] Initial statement of claim [145] Korean Steel [1] Korean Steel Facilities Deed [32] Korean Steel 2017 MCP [12] Korean Steel MRSLA [9] Korean Steel Takeover Agreement [31] MCPs [441] MCP Subset of Requested Areas [119] Mineralogy [1] -- 157 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 158 Defined Term Paragraph Mineralogy's Defence [157] Mining Right [53] MRSLAs [9] MRSLA Express Government Approvals Term [61] MRSLA Implied Good Faith Term [66] MRSLA Implied Co-operation Term [66] MRSLA Implied Necessary Tenure Term [65] Port Proceedings [321] Programme of Works [13] Project [9] Project Proponents [42] Re-purposing request [124] Sino Iron [1] Sino Iron Facilities Deed [32] Sino Iron leases [9] Sino Iron 2017 MCP [12] Sino Iron MRSLA [9] Sino Iron Project [9] Sino Iron Takeover Agreement [31] Site Lease Area [10] Statement of Claim [38] State Agreement [8] State Agreement Implied Good Faith Term [49] State Agreement Implied Co-operation Term [49] Takeover Agreements [31] Takeover Agreements Assistance Term [73] Takeover Agreements Implied Good Faith Term [74] Takeover Agreements Implied Co-operation Term [74] TSF [111] WRD [111] -- 158 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 159 Schedule 2 – Appellant's Further Amended Grounds of Appeal Ground 1 – Upon the proper construction of the MRSLAs, Mineralogy has been paid for areas reasonably required for the Project 1. The primary judge erred in law in concluding that: (a) Mineralogy was entitled to receive 'some […] reasonable measure of remuneration' in return for providing additional tenure areas (e.g. J [2405]); (b) it would not be reasonable for the Appellants to request other tenure without any proposal to pay additional remuneration (e.g. J [2452]); (c) each of the Appellants' requests for other tenure was unreasonable because each was put on the basis of 'there being no additional payment whatsoever to be made in return for those areas': J [2462(q)]. The primary judge should have found that Mineralogy was not entitled to receive further or additional remuneration because, on the proper construction of the Mining Right and Site Lease Agreements (MRSLAs), Mineralogy had already agreed to grant the 'Site Lease' over the entirety of the 'Site Lease Area', including such other tenure areas as were 'otherwise agreed in writing', '[i]n consideration of the payment of $5000' (cl 4.1 and cl 4.2). Ground 2 – No requirement in State Agreement and Project agreements to pay additional monetary consideration for areas reasonably required for the Project 2. Further or alternatively to ground 1, the primary judge erred in law in concluding as set out in ground 1(a), (b) and (c) because neither the State Agreement nor the other Project agreements required additional monetary consideration for areas reasonably required for the Project. Ground 3 – State Agreement and continuous operation 3. The primary judge erred in law in: (a) holding that the principal and first issue to be determined (J [208], [432], [512], [523], [528] - [529], [541] - [542] and [845]) was the validity of the requests for so-called 'tenure' -- 159 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 160 (see J [2293] - [2295]), rather than the validity of the requests to submit the 2017 MCPs (cf. J [208] and [522]); (b) holding that the validity of the requests to submit the 2017 MCPs was dependent upon the validity of the requests for 'tenure' (J [208], [541] - [542], [845], [2253], [2462(b)] and [2462(v)]); and (c) failing to hold that Mineralogy's failure or refusal to submit the 2017 MCPs (J [814(a)]) was: (i) a failure to ensure continuous operation of the Project, and therefore a breach of clause 7(6) of the State Agreement (J [817], [821] - [822], [829], [1018] and [1020]); (ii) a breach of clause 4.1(b) of the Fortescue Coordination Deed (FCD) (J [818], [821] - [822] and [829]); (iii) a breach of clause 15.1 of the MRSLAs (J [823] - [824] and [829]); (iv) a breach of clause 7.3(i) of the Sino Takeover Agreement and clause 7.3(e) of the Korean Takeover Agreement (J [825] - [826] and [829]); and (v) a breach of the implied obligation (by law) of mutual cooperation in the State Agreement, the FCD, the MRSLAs, the Takeover Agreements and the Direct Agreement (J [535], [709], [711]). Ground 4 – State Agreement and approved proposals 4. Further or alternatively to ground 3 above, the primary judge erred in law in failing to hold that: (a) there were terms of the Approved Proposals that: (J [248] - [249], [1182] - [1197]) (i) Sino and Korean each hold rights to: (A) mine up to 1 billion tonnes (Bt) each of magnetite ore; and -- 160 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 161 (B) produce up to 13.8 million tonnes per annum (Mtpa) each of product; (ii) the Project was expected to have a mine life of beyond 25 years; (iii) the proposals were based on a mine plan that would provide sufficient ore for approximately five years; (iv) during that five year period, additional areas would be sought for the placement of tailings and waste rock as well as the extension of the pit area and volume; (v) further environmental approvals were being sought to expand the Project beyond existing environmental approvals, including in relation to the mine pit, waste rock landforms and tailings storage facility areas, and to increase the mine life to 25 years; (vi) upon the obtaining of the further environmental approvals, the approved proposals would be updated to enable full implementation of the Project; (vii) the tailings storage facility design would accommodate approximately the first five years of tailings deposition, and further approvals would be sought to increase the capacity of the facility as operations proceeded; and (viii) Sino Iron was investigating converting a port construction village into a permanent village, and if found to be a suitable location for a permanent village, a proposal amendment would be submitted to the Minister, and (b) Mineralogy's failure or refusal to submit the 2017 MCPs was a failure to implement the approved proposals in accordance with their terms and therefore a breach of clauses 7(6) and 8(2) of the State Agreement (J [1158] - [1164], [1185] - [1189] and [1194] - [1197]). Ground 5 – State Agreement cl 29 5. The primary judge erred in law in holding that: -- 161 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 162 (a) the additional areas referred to in the 2017 MCPs which were not already the subject of agreement between Sino Iron, Korean Steel and Mineralogy would be the subject of clause 29 of the State Agreement (J [92] and [1148]); and (b) there would be difficulty for Mineralogy by it later not honouring a warranty to the State under clause 29 of the State Agreement in relation to the additional areas referred in the 2017 MCPs (J [92] and [1148]), and should have held that: (c) the additional areas referred to in the 2017 MCPs would not be the subject of clause 29 of the State Agreement; and (d) clause 29 of the State Agreement did not provide a reason for Mineralogy to refuse to submit the 2017 MCPs. Ground 6 – the applicable contractual standard for 'tenure' 6. The primary judge erred in law by holding that the 'threshold' to be applied when evaluating the additional 'tenure' areas sought by the Appellants was 'essential', 'necessary' or 'critical' because the Appellants pleaded and ran their case on that basis. The primary judge should have applied the contractual standard, being whether the areas were 'reasonably required' (J [223], [454], [974], [1343], [2462(f), (n), (s), (t)]). Ground 7 – the areas sought for the Project 7. The primary judge erred in law and fact in failing to find that each of: (a) the request for the additional TSF area within G08/74 (the Crescent area) (J [1285] - [1287], [1289] - [1290], [1378] - [1381], [1583], [1585] - [1587] and [2462(l)]); (b) the additional areas sought at the Cape Preston Port area (J [1626] - [1627], [1703], [2462(n)] and [2462(t)]); (c) the area sought for the new port accommodation village (J [1637] and [1639]); (d) the area sought for the Northern Infrastructure Corridor (J [1637] and [1639]); -- 162 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 163 (e) the area sought for the Southern Infrastructure Corridor (J [1538], [1550], [1635], [1637], [1639], [2462(n)]); (f) the moving of the Fortescue River Road (J [1292(7)], [1541] and J [2462(n)]); and (g) the haul road crossovers of the North-South Corridor (J [1455], [1536], [1779] and [2434] - [2447]), were reasonably required for the Project, and should have found that each of those areas was reasonably required for the Project. Ground 8 – divisibility of the 2017 MCPs 8. The primary judge erred in law and fact in holding that the 2017 MCPs were holistic global package proposals (J [38], [65] - [67], [339], [458], [524], [758] and [845]), and should have held that: (a) the CITIC parties had attempted to engage with Mineralogy about the MCPs since 2017; (b) the additional areas referred to in the 2017 MCPs, and the implicit tenure request contained in them, were divisible or severable; (c) any additional areas referred to in the 2017 MCPs, and the implicit tenure request contained in them, which were not in fact reasonably required for the Project could and should be severed from the 2017 MCPs; (d) the functional elements in the 2017 MCPs were divisible or separable; and (e) any functional elements in the 2017 MCPs which were not in fact reasonably required for the Project could and should be severed from the 2017 MCPs. Ground 9 – divisibility of the 29 November 2021 'tenure' request 9. The primary judge erred in law and fact in holding that the 29 November 2021 'tenure' request was put to Mineralogy as an indivisible additional tenure package requirement said to be required to support the 2017 MCPs (J [1045], [1298] and [2462(s)]), and should have held that: -- 163 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 164 (a) the CITIC parties had attempted to engage with Mineralogy about the additional 'tenure' areas the subject of the 29 November 2021 HSF request since 2017; (b) the request for additional areas was divisible or severable; and (c) any additional areas sought in the 29 November 2021 request which were not in fact reasonably required for the Project could and should be severed from the request. Ground 10 – the requested licence 10. The primary judge erred in law and fact in holding that the 29 November 2021 'tenure' request lacked the required level of detail regarding the terms of a licence to access and use areas for the purposes of implementation of the MCPs and the Approved Proposals (J [429], [1081(c)], [1085] - [1087], [1795] and [2249] - [2250]). Ground 11 – technical information regarding 'tenure' request 11. The primary judge erred in law and fact in holding that: (a) sufficient technical information had not been provided to enable a proper level of consideration by Mineralogy of the revised 'tenure' request at 29 November 2021 (J [1484] - [1485], [1831] and [2462(j)]); and (b) as such, the 29 November 2021 request was also not a reasonable request when made to Mineralogy at 29 November 2021 (J [2462(j)]), and so holding in the absence of evidence from Mineralogy that it had not been provided with sufficient technical information regarding the 29 November 2021 request, and should have held that sufficient technical information had been provided regarding the 29 November 2021 request: (c) in the 2017 MCPs, which contained a similar level of detail as had been provided in respect of earlier proposals which had been approved by Mineralogy; (d) in circumstances where the Director-General of the Department of Jobs, Tourism, Science and Innovation (DJTSI) had advised on 21 December 2017 that the MCPs provided 'sufficient detail' to meet the requirements of the State Agreement and so, if -- 164 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 165 submitted, they could be considered by the Minister pursuant to clause 7 of the State Agreement (J [293]); (e) by the appellants' offers in 2017 and 2018 to meet and make their technical personnel available to Mineralogy to discuss the MCPs, which offers Mineralogy did not take up; and/or (f) in the evidence which had been filed in the proceeding prior to the making of the 29 November 2021 request, and should have held that the 29 November 2021 request was a reasonable request. Ground 12 – period of time to respond to 'tenure' request 12. The primary judge erred in law and fact in holding that, in all the circumstances, including taking full account of the level of technical information as was provided to Mineralogy at the time, a reasonable time to respond to the 29 November 2021 request would have been a period that was not less than a month (J [1831], [2248], [2250] and [2462(h)] - [2462(i)]), and so holding in the absence of evidence from Mineralogy that seven days was insufficient time to respond to the 29 November 2021 request, and should have held that, in all the circumstances, a reasonable period of time to respond to the 29 November 2021 request was seven days. Ground 13 – port stockpile area 13. The primary judge erred in law and fact in holding that there was a 'disconformity stockpile area feature' (said to comprise the non-alignment of the 2017 MCPs' stockpile areas at Appendix B Plan 2 with the additional stockpile port areas being sought under [Statement of Claim] Annexure 11B) and that it needed to be corrected in any submitted MCPs as drawn and formalised (J [1622] and [2462(w)]), and should have held that there was no such disconformity and no such correction was necessary in any MCPs submitted. Ground 14 – refusal to agree to 'tenure' request 14. Further to grounds 6 to 13 above, the primary judge should have held that Mineralogy's failure or refusal to agree to the implicit tenure request in the 2017 MCPs and the 29 November 2021 'tenure' request by 5 December 2021 (J [814(b)]) constituted a breach of: -- 165 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 166 (a) clauses 7(6) and 8(2) of the State Agreement (J [817], [821] - [822], [829], [1018] and [1020]); (b) clause 7.3(i) of the Sino Iron Takeover Agreement and clause 7.3(e) of the Korean Steel Takeover Agreement (J [825] - [826] and [829]); (c) the Implied Necessary Tenure term (J [961]); (d) clause 37.4 of the MRSLAs (J [2462(d)]); (e) the implied obligation (by law) of mutual cooperation in the State Agreement, the FCD, the MRSLAs, the Takeover Agreements and the Direct Agreement (J [619], [709], [711], [2462(d)]); and (f) the implied obligation to act in good faith in the performance of the State Agreement, the Fortescue Coordination Deed, the Sino Iron Takeover Agreement, the Korean Steel Takeover Agreement and the Direct Agreement (J [665]), and erred in law in not doing so. Ground 15 – no 'correlative failure' of the 2017 MCPs 15. Further to ground 14 above, the primary judge erred in law in holding that the related demands to Mineralogy to provide its 'assistance' or 'reasonable assistance' by submitting the 2017 MCPs for approval by the Minister by reference to the revised 29 November 2021 additional 'tenure' request 'correlatively failed' (J [2462(v)]), and should have held that Mineralogy was required to submit the 2017 MCPs. Ground 16 – requirement to submit the 2017 MCPs 16. The primary judge erred in law in failing to hold that Mineralogy was required to, forthwith: (a) jointly with Sino, submit the 2017 Sino MCP to the State Agreement (SA) Minister for approval under the State Agreement; and (b) jointly with Korean, submit the 2017 Korean MCP to the SA Minister for approval under the State Agreement; alternatively to (a) and (b): -- 166 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 167 (c) jointly with Sino, submit such amended 2017 Sino MCP as the Court determines is reasonably required, to the SA Minister for approval under the State Agreement; and (d) jointly with Korean, submit such amended 2017 Korean MCP as the Court determines is reasonably required to the SA Minister for approval under the State Agreement. Ground 17 – requirement to agree to areas 17. The primary judge erred in law in failing to hold that Mineralogy was required to, forthwith: (a) agree in writing with each of Sino and Korean that: (i) the Site Lease Area, within the meaning of clauses 1.1 and 4.1 of each of the Sino MRSLA and the Korean MRSLA, includes the area shaded in pale blue in the map contained in Annexure 11A, or Annexure 11B to the [Statement of Claim]; and/or (ii) Mineralogy grants to each of Sino and Korean a licence to access and use, for the purposes of implementation of the 2017 MCPs and the Approved Proposals, the areas shaded in dark blue in the map contained in Annexure 11B to the [Statement of Claim], to the extent that Sino and Korean do not already have a licence in respect of those areas; (b) alternatively to (a), grant to Sino and Korean such further tenure including access to or use of land within the areas outlined in the map in Annexure 11A, or Annexure 11B to the [Statement of Claim] as the Court determines is reasonably required by Sino and Korean for the purposes of the 2017 MCPs, upon such terms as the Court determines are reasonable. Ground 18 – re-purposing 18. The primary judge erred in law in holding that no basis for issuing injunctive relief against Mineralogy was established as regards the surrendering of its three general purpose leases for repurposing and reissue (J [2402], [2404] - [2406] and [2462(z)]), and should have granted such relief. -- 167 of 168 -- [2026] WASCA 71 JUDGMENT OF THE COURT Page 168 I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia. JN Principal Associate to the Honourable Chief Justice Quinlan 28 MAY 2026 -- 168 of 168 --