CLASSIC MINERALS LIMITED -v- HYDEN PROJECT HOLDINGS PTY LTD [2026] WASC 178

[2026] WASC 178 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : CLASSIC MINERALS LIMITED -v- HYDEN PROJECT HOLDINGS PTY LTD [2026] WASC 178 CORAM : MASTER RUSSELL HEARD : 17 SEPTEMBER 2025 DELIVERED : 7 MAY 2026 FILE NO/S : CIV 1381 of 2025 BETWEEN : CLASSIC MINERALS LIMITED (ACN 119 484 016) Plaintiff AND HYDEN PROJECT HOLDINGS PTY LTD (ACN 141 995 217) Defendant Catchwords: Practice and procedure - Summary judgment - O 14 of the Rules of the Supreme Court 1971 (WA) - Plaintiff's application for summary judgment seeking declaration that termination notice of no effect and orders for specific performance - Issue as to whether contract validly terminated - Turns on own facts Legislation: Rules of the Supreme Court 1971 (WA) O 14, O 14 r 1, O 14 r 1(1), O 14 r 2(1) -- 1 of 22 -- [2026] WASC 178 Page 2 Result: Leave to bring application for summary judgment granted Plaintiff's application for summary judgment dismissed Defendant to have unconditional leave to defend Category: B Representation: Counsel: Plaintiff : Mr A P Hershowitz Defendant : Mr J R C Sippe Solicitors: Plaintiff : Lawton Gillon Defendant : Mizen + Mizen Case(s) referred to in decision(s): Armada Balnaves Pte Ltd v Woodside Energy Julimar Pty Ltd [2022] WASCA 69 Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna [2023] WASC 368 Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 Edenham Pty Ltd v Meares [2016] WASC 301 Fels v Rural Bank [2020] WASCA 151 Foran v Wight [1989] HCA 51 Gerovich v Gerovich [2018] WASC 153 Hadouken Pty Ltd v D Comm Infrastructure Pty Ltd [2024] WASC 330 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 Morgan v Pallister [2004] WASC 188 Property Developments (WA) Pty Ltd v Lord Forrest Nominees Pty Ltd [2024] WASC 388 Shepherd v Felt and Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359 Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 Westpac Banking Corporation v Anderson [2017] WASC 106 Woolworths Group Limited v Gazcorp Pty Ltd [2022] NSWCA 19 -- 2 of 22 -- [2026] WASC 178 MASTER RUSSELL Page 3 MASTER RUSSELL: Overview 1 In October 2023, the plaintiff, Classic Minerals Ltd, and the defendant, Hyden Project Holdings Pty Ltd (then known as Reed Exploration Pty Ltd),1 entered into an agreement pursuant to which the plaintiff agreed to purchase, and the defendant agreed to sell, certain mining tenements (Sale Agreement).2 2 The Sale Agreement was subsequently varied by deeds of variation which, amongst other things, varied the completion date to 1 November 2024. Completion was not effected on that date. 3 On 13 December 2024, following the issue of a default notice by the plaintiff requiring the plaintiff to effect completion under the Sale Agreement, the defendant issued to the plaintiff a further notice titled 'Termination of Tenement Sale Agreement' (Termination Notice).3 4 The plaintiff disputes the Termination Notice was effective to terminate the Sale Agreement. It brings this action against the defendant claiming an order for specific performance of the Sale Agreement and that the defendant sign all documents and do all things necessary to transfer the mining tenements to the plaintiff as required under the Sale Agreement. The plaintiff also claims damages for breach of the Sale Agreement. 5 The plaintiff applies for summary judgment against the defendant pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC) (Application). The defendant opposes the Application on the basis it has a defence to the plaintiff's claim and raises issues that it says should be tried. It seeks orders that the Application be dismissed and that it have unconditional leave to defend the action. 6 For the following reasons, I am not satisfied that this is a clear case in which summary judgment should be entered. The defendant has raised an arguable defence to the plaintiff's claim and there are issues which should be tried. As such, the Application should be dismissed and the defendant granted unconditional leave to defend the action. 1 The defendant changed its name from Reed Exploration Pty Ltd to Hyden Project Holdings Pty Ltd on 2 April 2025. 2 A copy of which is annexed to the affidavit of Madhukar Bhalla sworn on 1 May 2025 as 'MB-4'. 3 A copy of which is annexed to the affidavit of Madhukar Bhalla sworn on 1 May 2025 as 'MB-15'. -- 3 of 22 -- [2026] WASC 178 MASTER RUSSELL Page 4 The Application and the materials relied upon 7 In support of the Application, the plaintiff relies on an affidavit of Madhukar Bhalla sworn on 1 May 2025 (Bhalla Affidavit) and an outline of submissions filed on 6 June 2025. 8 The plaintiff applies for summary judgment against the defendant in the following terms: (a) a declaration that the Termination Notice is of no effect; (b) specific performance of the Sale Agreement; and (c) an order that the defendant sign all documents and do all things necessary to transfer the mining tenements the subject of the Sale Agreement from the defendant to the plaintiff. 9 In opposition to the Application, the defendant relies on an affidavit of Jonathan Heath Stuart Murray sworn on 20 May 2025 (Murray Affidavit) and an outline of submissions filed on 20 June 2025. Summary judgment - applicable principles 10 The procedural requirements for an application for summary judgment under O 14 RSC were summarised by Archer J4 in Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna.5 11 An application for summary judgment must be brought within 21 days after an appearance has been filed, or at a later time with leave of the court.6 In this case, the defendant entered its appearance on 11 April 2025. The Application was filed on 6 May 2025, a few days outside the 21-day period after an appearance was filed. 12 No issue has been taken by the defendant with the late filing of the Application. There is no suggestion of any prejudice to the defendant, and the Application is still brought at an early stage of the proceedings. As such, I am satisfied that leave to bring the Application should be granted. 4 As her Honour then was. 5 Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna [2023] WASC 368 [27] (Archer J). 6 O 14 r 1(1) RSC. -- 4 of 22 -- [2026] WASC 178 MASTER RUSSELL Page 5 13 The application must be supported by an affidavit verifying the facts upon which the claim is based and stating that, in the deponent's belief, there is no defence to the claim.7 The plaintiff has complied with those requirements. 14 The legal principles relating to applications for summary judgment are well established and were not in dispute. The key principles were summarised by the Court of Appeal in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd,8 as follows: … Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55]. 15 The plaintiff bears the legal burden of persuading the court that its claim is a good one and that there is no defence to it. If the plaintiff's affidavit or affidavits in support of the application make out a prima facie case on these two matters, the evidentiary burden passes to the defendant to show there is an arguable defence or some other reason there ought to be a trial of the action.9 16 A defendant does not have to show a defence on the balance of probabilities. However, a defendant seeking to demonstrate an arguable defence or some other reason why there ought to be a trial must, in their affidavit, provide sufficient particulars and details of their defence.10 17 As observed by Pullin J in Morgan v Pallister,11 summary judgment 'is not confined to cases which are immediately plain and obvious and the fact that a transaction is intricate does not disentitle a plaintiff to relief in a clear case'. However, it is not the intention of O 14 that an action be disposed of summarily where the facts are in 7 O 14 r 2(1) RSC. 8 Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24]. 9 Westpac Banking Corporation v Anderson [2017] WASC 106 (Westpac v Anderson) [53] - [54], [103]. See also Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 (Lafferty) [54] (Tottle J) and the authorities referred to. 10 See Lafferty [54]. 11 Morgan v Pallister [2004] WASC 188 [4] (Pullin J). -- 5 of 22 -- [2026] WASC 178 MASTER RUSSELL Page 6 dispute. Although, where the issues raised depend upon questions of law, the court may answer those questions in deciding whether summary judgment should be granted.12 18 If there is a conflict of evidence on the affidavits, the court should approach the application for summary judgment on the assumption that the facts set out in the affidavits relied upon by the party resisting the application will be ultimately accepted at trial.13 19 Where an issue or question is raised, summary judgment should only be granted in favour of the applicant where they can demonstrate that the question will certainly be resolved in their favour.14 The plaintiff's claim 20 The following facts, as pleaded in the statement of claim,15 and summarised in the plaintiff's outline of submissions, are derived from the Bhalla Affidavit, and make up the essential elements of the plaintiff's claim. 21 In October 2023, the defendant was entitled to the following mining tenements issued pursuant to the provisions of the Mining Act 1978 (WA) (together, the Tenements):16 (a) Exploration Licence 77/2207; (b) Exploration Licence 77/2219; (c) Exploration Licence 77/2220; (d) Exploration Licence 77/2239; (e) Exploration Licence 77/2460; (f) Exploration Licence 77/2546; (g) Exploration Licence 77/2711; (h) Application for Exploration Licence 77/3002; 12 Hadouken Pty Ltd v D Comm Infrastructure Pty Ltd [2024] WASC 330 [18] (Whitby J), citing Edenham Pty Ltd v Meares [2016] WASC 301 [17] (Le Miere J). 13 Hadouken Pty Ltd v D Comm Infrastructure Pty Ltd [21], citing Gerovich v Gerovich [2018] WASC 153 [32]. 14 Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 [54] - [55]; Fels v Rural Bank [2020] WASCA 151 [27]. 15 Statement of Claim filed on 29 April 2025 (SOC). 16 SOC [4]; Bhalla Affidavit [8], 'MB-3'. -- 6 of 22 -- [2026] WASC 178 MASTER RUSSELL Page 7 (i) Prospecting Licence 77/4290; (j) Prospecting Licence 77/4291; and (k) Prospecting Licence 77/4534. 22 Subsequently, on 9 May 2024, Prospecting Licence 77/4290, Prospecting Licence 77/4291, part of Exploration Licence 77/2220 and part of Exploration Licence 77/2239 were converted to Mining Lease 77/1310 pursuant to s 49 and s 67 of the Mining Act.17 23 On about 3 October 2023, the plaintiff and the defendant entered into the Sale Agreement, pursuant to which the plaintiff agreed to purchase, and the defendant agreed to sell the Tenements on the terms and conditions set out in the Sale Agreement.18 24 It is the plaintiff's case that, on a proper construction of the Sale Agreement, its relevant terms included, amongst other things, that: (a) the Sale Agreement was subject to a number of conditions precedent (Conditions Precedent), which were required to be either satisfied or waived by 30 November 2023, or such other date as may be agreed in writing between the plaintiff and the defendant (Conditions Precedent Date);19 (b) on execution of the Sale Agreement, the plaintiff was to pay a non-refundable deposit of $50,000 to the defendant (Deposit) (cll 3(a), 5.1);20 (c) the defendant agreed to transfer the Tenements to the plaintiff for the following consideration:21 (i) $200,000 in cash at completion (Cash Consideration), to be paid to the defendant upon completion (cll 3(b), 6.3(a));22 (ii) 500,000,000 fully paid ordinary shares in the plaintiff (Share Consideration) (cll 3(b), 6.3(b)); and 17 SOC [5]; Bhalla Affidavit [11], 'MB-5'. 18 SOC [6]; Bhalla Affidavit [9], 'MB-4'. 19 SOC [7.2]; Bhalla Affidavit [12]. 20 SOC [7.3]; Bhalla Affidavit [10]. 21 SOC [7.4]. 22 SOC [7.4] refers to $275,000, however, cl 3(b) of the Sale Agreement states the Cash Consideration as $200,000. -- 7 of 22 -- [2026] WASC 178 MASTER RUSSELL Page 8 (iii) reimburse the defendant for amounts the defendant had incurred in maintaining the Tenements (Reimbursement Amount) (cl 6.3(a)(ii)); (d) completion was to be effected five business days after the Conditions Precedent had been satisfied or waived (Completion Date) (cll 1.1, 6.1);23 (h) at completion, the defendant will deliver to the plaintiff title to and effective possession and control of the Tenements and the documents specified to give effect to the transfer of the Tenements to the plaintiff (cl 6.2);24 (i) after completion, the defendant holds on trust for the benefit of the plaintiff any rights or benefits to the Tenements not capable of being legally transferred to, conferred upon, or exercised by the plaintiff (cl 7.2);25 (j) if a party does not perform its obligations under cll 6.2 or 6.3 on the Completion Date, the other party may give the defaulting party a notice requiring them to effect completion within three business days of receipt of the notice (cl 10.1);26 (k) in addition to any other rights or remedies available at law, the non-defaulting party may elect to seek specific performance of the defaulting party's obligations under the Sale Agreement or to terminate the Sale Agreement (cl 10.2).27 25 The Sale Agreement was varied by six deeds of variation, dated 1 February 2024, 15 March 2024, 12 April 2024, 5 June 2024, 1 August 2024 and 17 September 2024.28 26 By the 17 September 2024 variation, the Sale Agreement was varied to extend the Completion Date to 1 November 2024, and the plaintiff was to pay the defendant the sum of $451,322.62 on the varied Completion Date.29 23 SOC [7.5]. 24 SOC [7.6] - [7.7]. 25 SOC [7.8]. 26 SOC [7.9]. 27 SOC [7.10]. 28 SOC [8] - [10], [13] - [15]; Bhalla Affidavit [13], [16], [20] - [23], 'MB-6', 'MB-7', 'MB-10' - 'MB-13'. 29 SOC [15]; Bhalla Affidavit [28], 'MB-13'. -- 8 of 22 -- [2026] WASC 178 MASTER RUSSELL Page 9 27 The plaintiff did not pay the defendant the sum of $451,322.62 and completion of the Sale Agreement did not occur on the varied Completion Date of 1 November 2024.30 28 The defendant issued a notice to the plaintiff on Tuesday, 10 December 2024, giving notice to the plaintiff that the defendant required the plaintiff to effect completion under the Sale Agreement by paying to the defendant the 'outstanding cash payments' within three business days of 10 December 2024.31 29 The plaintiff refers to and defines the notice issued on 10 December 2024 in the statement of claim and its written submissions as the 'Default Notice'. It referred to it in its oral submissions as the 'Notice to Complete'. The defendant has referred to and defined the same document as the 'Notice to Complete'. 30 Although the parties have each defined and referred to the 10 December 2024 letter differently, they are referring to the same document. For the purposes of the Application, nothing turns on how it is described. To avoid confusion, I will refer to the defendant's letter to the plaintiff dated 10 December 202432 in these reasons as the Notice to Complete. 31 On 13 December 2024, the defendant issued the Termination Notice to the plaintiff, which the plaintiff says purported to terminate the Sale Agreement.33 Mr Bhalla deposes that the defendant sent the Termination Notice by email at 5.13 pm on 13 December 2014.34 The plaintiff accepted at the hearing of the Application that the defendant had sent the Termination Notice to the plaintiff by email at 5.40 pm on 13 December 2024.35 32 The plaintiff says that the Termination Notice was of no effect as it was issued by the defendant to the plaintiff prior to the expiration of three business days from the date of issue of the Notice to Complete.36 It relies on the terms of the Sale Agreement, as outlined in further detail later in these reasons. 30 SOC [16]; Bhalla Affidavit [24]. 31 SOC [17]; Bhalla Affidavit [25], 'MB-14'. 32 A copy of which is attached to the Bhalla Affidavit as 'MB-14' and to the Murray Affidavit as 'JM1'. 33 SOC [18]; Bhalla Affidavit [26], 'MB-15'. 34 Bhalla Affidavit [26]. 35 ts 8. 36 SOC [19]; Bhalla Affidavit [27] - [28]. -- 9 of 22 -- [2026] WASC 178 MASTER RUSSELL Page 10 33 On 28 March 2025, the plaintiff tendered the amount owing by the plaintiff to the defendant pursuant to the terms of the Sale Agreement, as varied, in the sum of $478,587.46, by causing its lawyers to deliver a bank cheque (Bank Cheque) in that amount to the defendant at its registered office.37 The difference of $27,264.84 represents a payment of interest at the rate of 15% per annum from 1 November 2024 (the varied Completion Date) to the date of tender.38 34 On 31 March 2025 the defendant returned the Bank Cheque to the plaintiff's lawyers.39 35 The plaintiff alleges that, in breach of the Sale Agreement, the defendant has refused to accept the amount tendered by the plaintiff and has refused, and continues to refuse, to transfer the Tenements to the plaintiff.40 36 The plaintiff states that it is, and has since 28 March 2025 been, ready willing and able to complete the purchase of the Tenements pursuant to the terms of the Sale Agreement, as varied.41 It claims to have suffered loss and damage as a result of the defendant's breach of the Sale Agreement, as it has been deprived of the benefit of ownership of the Tenements.42 37 Mr Bhalla deposes in the Bhalla Affidavit to further communications between the parties and the parties' lawyers between 2 April 2025 and 27 May 2025,43 including a further notice to complete issued on 3 April 2025 giving the defendant three business days' notice to effect completion.44 This does not form part of the plaintiff's pleaded case. 38 The defendant's lawyers replied to the plaintiff's notice to complete on 4 April 2025, amongst other things, refuting that the Sale Agreement remained on foot and that the defendant had any obligations under it other than those that survived termination.45 37 SOC [20] - [21]; Bhalla Affidavit [29], 'MB-16'. 38 Bhalla Affidavit, 'MB-16'. 39 SOC [22]; Bhalla Affidavit [30]. 40 SOC [23]; Bhalla Affidavit [30] - [37], 'MB-17' - 'MB-20'. 41 SOC [24]; Bhalla Affidavit [38]. 42 SOC [25]. 43 Bhalla Affidavit [33] - [36], [40], [42], 'MB-18' - 'MB-23'. 44 Bhalla Affidavit [35], 'MB-20'. 45 Bhalla Affidavit [36], 'MB-21'. -- 10 of 22 -- [2026] WASC 178 MASTER RUSSELL Page 11 Plaintiff's submissions 39 The plaintiff submits, in essence, that there is no defence to the claim and that summary judgment should be entered in its favour. It contends that, on a proper construction of the relevant provisions of the Sale Agreement, the defendant's purported termination of the Sale Agreement was of no effect because the period of three days had not lapsed from the issue of the Notice to Complete when the Termination Notice was given. 40 The plaintiff relies on cl 10.1 of the Sale Agreement and the definitions of 'day' and 'business day' in cl 1.2. 41 Clause 10.1 of the Sale Agreement provides: 10.1 Notice to complete If a party (defaulting party) does not perform its obligations under clauses 6.2 or 6.3 (as applicable) on the completion date, then the other party (non-defaulting party) may give the defaulting party a notice requiring the defaulting party to attend and effect completion (including performance of those outstanding obligations) within 3 business days of receipt of the notice. 42 Clause 1.2(c)(xii) provides that, unless the context otherwise requires reference to: [A] day is to a period of time commencing at midnight and ending 24 hours later. 43 Clause 1.2(g) provides: When, in this agreement, a period of time dates from a given day or the day of an act or event, it is to be calculated exclusive of that day. 44 Clause 1.2(h) provides: When, in this agreement, a day on or by which anything to be done is not a business day, that thing may be done on the next business day. 45 'Business day' is defined in cl 1.1 as 'a day other than a Saturday, Sunday, public holiday or bank holiday in Perth, Western Australia.' 46 The plaintiff submits that it received the Notice to Complete on 10 December 2024 and, as a result, having regard to the above provisions, the defendant had until midnight on 13 December 2024 to comply with the Notice to Complete. It is the plaintiff's case that the -- 11 of 22 -- [2026] WASC 178 MASTER RUSSELL Page 12 defendant was not entitled to issue a termination notice until after midnight on 13 December 2024, such that the Termination Notice issued by the defendant prior to midnight on 13 December 2024 is of no effect.46 47 The plaintiff contends that the Sale Agreement was not validly terminated by the defendant and, as such, the Sale Agreement remained on foot at the time it tendered the Bank Cheque to the defendant. It claims that it is entitled to an order for specific performance, having tendered the full amount due to the defendant and having called upon the defendant to comply with its obligations under the Sale Agreement. 48 The plaintiff contends that it has established a prima facie right to judgment pursuant to O 14 RSC and the Murray Affidavit does not raise any factual dispute or any defence to the plaintiff's claim. The plaintiff submits that, in the circumstances, it is entitled to summary judgment and an order for specific performance of the Sale Agreement and requiring the defendant to take all necessary steps to transfer the Tenements to the plaintiff. Defendant's evidence 49 Mr Murray deposes in the Murray Affidavit that, at the material times, he was a non-executive director of the defendant. He was also a partner of Steinepreis Paganin.47 50 Attached to the Murray Affidavit is a further copy of the Notice to Complete, being the letter from the defendant to the plaintiff dated 10 December 2024. Mr Murray states that the Notice to Complete was sent to Mr Bhalla by email by Jack Moore, an associate of Steinepreis Paganin, at 10.48 am on 10 December 2024.48 51 The Notice to Complete is addressed to Mr Bhalla of the plaintiff and headed 'Notice of Buyer's Failure to Perform and Comply with Tenement Sale Agreement'. It is signed by Mr Murray in his capacity as a director of the defendant and stated to be given by the defendant to the plaintiff pursuant to cl 10.1 of the Sale Agreement. 46 Relying on Property Developments (WA) Pty Ltd v Lord Forrest Nominees Pty Ltd [2024] WASC 388 [35] - [44]. 47 Murray Affidavit [1]. 48 Murray Affidavit [4], 'JM1'. The email is part of the email chain referred to in [7] and attached as 'JM3' at page 7 of the Murray Affidavit. -- 12 of 22 -- [2026] WASC 178 MASTER RUSSELL Page 13 52 Paragraph 3 of the Notice to Complete states: [The plaintiff] has failed to perform and comply, in material respects, with its obligations under clause 6.3 of the [Sale Agreement] on the agreed completion date of 1 November 2024, in that [the plaintiff] did not pay the completion payments as agreed under the deed of variation dated 18 September 2024. 53 Paragraph 4 of the Notice to Complete states: [The defendant] requires [the plaintiff] to attend to and effect completion (including performance of the outstanding obligation to make cash payments) within 3 business days of receipt of this notice. 54 Mr Murray's evidence is that, on 13 December 2024 at 5.28 pm, he had a telephone conversation with Mr Bhalla regarding the Notice to Complete. He says that, during that conversation, Mr Bhalla said words to the effect that the plaintiff was not in a position to complete the transaction, the subject of the Notice to Complete by the deadline set out in the Notice to Complete. He says that Mr Bhalla asked him whether the defendant would be prepared to grant a further extension, to which Mr Murray responded with words to the effect that the defendant had pushed it as far as they can and were not prepared to grant any further extension.49 55 Mr Murray attaches to his affidavit a chain of emails between Steinepreis Paganin and the plaintiff, exchanged between Tuesday, 10 December 2024 and Monday, 16 December 2024.50 56 Mr Murray denies that the Termination Notice was sent at 5.13 pm on 13 December 2024, as deposed to by Mr Bhalla. Mr Murray's evidence is that the Termination Notice was sent by Steinepreis Paganin on behalf of the defendant by email at 5.40 pm on 13 December 2024.51 As noted, this has been accepted on behalf of the plaintiff.52 57 Mr Murray says that the Termination Notice was sent in reliance on the fact that the plaintiff had not complied with the Notice to Complete and Mr Bhalla stating in his conversation with Mr Murray 49 Murray Affidavit [5]. 50 Murray Affidavit [7], 'JM3'. 51 Murray Affidavit [6]. A copy of the email is part of the chain attached as 'JM3' on pages 6 and 7 of the Murray Affidavit. 52 ts 8. -- 13 of 22 -- [2026] WASC 178 MASTER RUSSELL Page 14 that the plaintiff could not complete the transaction within the time provided.53 58 In an email sent to Mr Murray on Friday 13 December 2024 at 5.53 pm, Mr Bhalla stated:54 I have just spoken with Directors. The Chair will advance [the plaintiff] 25,000 from his personal funds. We will then deposit the 25,000.00 on Monday to your account if you are able to reinstate, and full and final payment on or before 28 February 2025. 59 Mr Murray responded to Mr Bhalla by email on 13 December 2024 at 8.30 pm stating:55 As discussed, our agreement is at an end. 60 On Saturday 14 December 2024 at 10.29 am, Mr Bhalla sent another email to Mr Murray thanking him for his email and stating:56 As you have stated that the Agreement is at an end, the Directors have asked me to enquire if a fresh proposal for the same transaction would be considered by your Board. 61 Mr Murray responded to Mr Bhalla by email at 8.29 am on Monday, 16 December 2024 stating:57 [The plaintiff's] inability to complete forced us to consider other options for our interest. We have agreed to binding terms for sale and have made a release to ASX this morning (see attached). 62 Attached to the email chain annexed at 'JM3' to the Murray Affidavit, is a copy of an ASX announcement by the plaintiff's holding company, Redivium Limited, announcing that it has entered into a binding share sale agreement with Viridian Capital Pty Ltd to sell all of its fully paid ordinary shares in the defendant, which holds the tenements that make up the Forrestania Project. The announcement also refers to the defendant having terminated its agreement to sell tenement interests in the Forrestania Project to the plaintiff.58 53 Murray Affidavit [6], 'JM2'. 54 Murray Affidavit, 'JM2', page 6. 55 Murray Affidavit, 'JM2', page 6. 56 Murray Affidavit, 'JM2', page 5. 57 Murray Affidavit, 'JM2', page 5. 58 Murray Affidavit, 'JM3', pages 8 - 9. -- 14 of 22 -- [2026] WASC 178 MASTER RUSSELL Page 15 Defendant's submissions 63 The defendant submits that, contrary to Mr Bhalla's statement in the Bhalla Affidavit that it does not raise any factual dispute, the Murray Affidavit discloses a defence to the plaintiff's claim and raises issues that are not appropriate for summary determination. 64 In essence, the defendant's position is that, even if the Termination Notice is found to be invalid for the purpose of cl 10.2, the defendant has an arguable case that the Sale Agreement was terminated, or that it had been abandoned by the plaintiff, such that it was not on foot when the plaintiff purported to tender the Bank Cheque to complete. As such, the defendant says it was (and is) under no obligation to complete the transaction. 65 The defendant relies on the telephone conversation between Mr Murray and Mr Bhalla on 13 December 2024 and their subsequent exchange of emails. It says that, at 5.28 pm on 13 December 2024, Mr Bhalla said to Mr Murray that the plaintiff was not able to complete the transaction the subject of the Notice to Complete by the time required (within the three business days stated in the Notice to Complete). Mr Bhalla asked for a further extension of time, which was refused by Mr Murray. He said that the defendant was not prepared to grant any further extensions. 66 The defendant submits that Mr Bhalla's words conveyed the plaintiff's inability to perform an essential term of the Sale Agreement - to pay the amount required to complete the transaction by the time provided. No further extension to the Completion Date was agreed. The plaintiff, by Mr Bhalla's request for a further extension, manifested its inability to perform and that it could only perform its fundamental obligation of paying the purchase price in a manner that was inconsistent with the terms of the Sale Agreement. 67 It is the defendant's position that such amounted to an anticipatory breach by the plaintiff to complete the transaction59 and, in those circumstances, the defendant was entitled to treat the Sale Agreement at an end, which it did, and issued the Termination Notice. 68 In relation to the timing of the issue of the Termination Notice, the defendant contends that it was entitled to issue the Termination Notice before midnight on 13 December 2024 because Mr Bhalla had told 59 Relying on Foran v Wight [1989] HCA 51 [18]; (1989) 168 CLR 385, 394 - 395; Armada Balnaves Pte Ltd v Woodside Energy Julimar Pty Ltd [2022] WASCA 69 (Armada v Woodside) [603]. -- 15 of 22 -- [2026] WASC 178 MASTER RUSSELL Page 16 Mr Murray that the plaintiff was not in a position to complete the transaction within the time required by the Notice to Complete and his request for a further extension to the Completion Date had been refused. Although, the defendant accepts that the Termination Notice does not expressly say so, it contends that the Termination Notice operates as confirmation of its acceptance of the plaintiff's repudiation. 69 It was submitted on behalf of the plaintiff that the Termination Notice refers to the plaintiff's failure to comply with the Notice to Complete and gives notice of termination of the Sale Agreement pursuant to cl 10.2(b) of the Sale Agreement. It notes there is no reference to the alleged telephone conversation between Mr Murray and Mr Bhalla and no reference to any anticipatory breach or repudiation by the plaintiff. 70 The defendant relies on Shepherd v Felt and Textiles of Australia Ltd,60 in support of its submission to the effect that its termination of the Sale Agreement is still effective even if it purports to terminate on what proves to be an invalid ground, as it was justified on another, valid ground. 71 The plaintiff submits that even if it is accepted for the purpose of the Application that there was a conversation between Mr Murray and Mr Bhalla in the terms advanced, such could not give rise to an anticipatory breach capable of repudiation and acceptance. 72 The plaintiff's position is that for there to have been an anticipatory breach, there must be an unequivocal refusal by the plaintiff to perform its obligations under the Sale Agreement. It says that Mr Bhalla's words deposed to by Mr Murray could not be construed as the plaintiff stating that it would not perform at all. Rather, that performance by the deadline was difficult and a request made for an extension, which it was submitted is consistent with an intention to perform, not with abandoning the agreement. It did not say that it would not complete, only that it was not in a position to complete by that date. 73 The defendant's response is that the only evidence of the conversation is that of Mr Murray, which is to be accepted for the purpose of the Application. Mr Murray's evidence is not to the effect that Mr Bhalla said performance by the deadline would be difficult. He said that the plaintiff was not in a position to complete by the time 60 Shepherd v Felt and Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359, 377 - 378. -- 16 of 22 -- [2026] WASC 178 MASTER RUSSELL Page 17 required, which is confirmed by his request for a further extension of the time for completion. 74 The defendant further submits that, if it is found that the conversation between Mr Bhalla and Mr Murray on 13 December 2024 was not a repudiation and an acceptance of the repudiation, and the Termination Notice was not effective to terminate, the subsequent communications are sufficient notice of termination of the Sale Agreement because of the plaintiff's inability to complete. 75 The defendant says that Mr Bhalla communicated the plaintiff's acceptance that the agreement was at an end in his emails sent to Mr Murray at 5.53 pm on 13 December 2024 and at 10.29 am on 14 December 2024. Mr Murray's email of 16 December 2024 also expressly refers to the plaintiff's inability to complete.61 76 The defendant says that if, contrary to its position it was found that the defendant had not validly terminated the Sale Agreement through the notices and communications in December 2024, the objective facts before the court would lead to the inference that the parties considered the Sale Agreement to be at an end. The defendant referred to and relied on Woolworths Group Limited v Gazcorp Pty Ltd62 in support of this submission. 77 The defendant reiterated that the plaintiff was told on 13 December 2024 and on 16 December 2024 that the defendant regarded the Sale Agreement as being at an end. The defendant submits that the parties' conduct from that point is consistent with them both accepting that the agreement would no longer be performed. It points to there being no evidence before the court of any communications between the parties between 16 December 2024 and the plaintiff purporting to tender payment to complete on 28 March 2025. 78 The defendant says that, at the very least, Mr Murray's affidavit raises triable issues as to the conversation between him and Mr Bhalla, and as to whether there has been a repudiation and termination of the Sale Agreement, or whether, by the time the plaintiff purported to complete, it had been abandoned and was no longer on foot. 61 See Murray Affidavit, 'JM3', page 5. 62 Woolworths Group Limited v Gazcorp Pty Ltd [2022] NSWCA 19. -- 17 of 22 -- [2026] WASC 178 MASTER RUSSELL Page 18 Determination 79 In my view, the issues raised by the defendant are not matters that can or should be determined summarily. 80 The material presently before the court raises triable issues as to: (a) whether the Sale Agreement was terminated in December 2024 by the Termination Notice, or otherwise; (b) alternatively, whether it was abandoned; or (c) whether it remained on foot and it was still open to the plaintiff to insist on completion in March 2025 and subsequently in the absence of any agreement to further extend the Completion Date. 81 I am not satisfied that, for the purpose of its application for summary judgment, the plaintiff has demonstrated that these questions will certainly be resolved in its favour. 82 It is common ground that the defendant issued the plaintiff with the Notice to Complete on 10 December 2024. As has been referred to, the notice stated that the plaintiff had failed to perform and comply, in material respects, with its obligations under cl 6.3 of the Sale Agreement on the varied Completion Date of 1 November 2024 to pay the agreed completion payments. 83 The Notice to Complete required the plaintiff to effect completion and perform its outstanding obligation to make the cash payments within three business days of the notice. The notice is expressed to have been given under cl 10.1 of the Sale Agreement. 84 The Termination Notice refers to the Notice to Complete, and states that the plaintiff has not complied with that notice and that completion has not occurred. It states that notice of termination is given pursuant to cl 10.2(b) of the Sale Agreement. As outlined, cl 10.2(b) provides that if the non-defaulting party seeks to terminate under cl 10.2(a), it must give the other party written notice to that effect. 85 The plaintiff says the Termination Notice was invalid or ineffective to terminate the Sale Agreement because it was given before midnight on 13 December 2024, when it says the time to comply with the Notice to Complete expired. -- 18 of 22 -- [2026] WASC 178 MASTER RUSSELL Page 19 86 I accept the defendant's submission to the effect that, if the Termination Notice was not effective to terminate the Sale Agreement pursuant to s 10.2(b) because it was issued before midnight on 13 December 2024, it is arguable that termination was justified on another, valid ground. 87 The defendant argues that it was entitled to terminate the Sale Agreement because, even if the time by which the plaintiff was required to complete had not yet passed, Mr Bhalla said that the plaintiff would not be able to complete by that time and, by his conduct repudiated the Sale Agreement. 88 As expressed by the authors of Cheshire and Fifoot Law of Contract:63 The law recognises that a party may commit an anticipatory breach of contract by manifesting an inability or unwillingness to perform it before performance is due. If the manifestation is of unwillingness or inability to perform the contract at all or in substance, it constitutes repudiation. In that event, the innocent party may terminate the contract forthwith, without waiting until performance falls due. … … Once a repudiation has been accepted, that is an election to terminate has been made, the contract-breaker cannot retract the breach. (References omitted) 89 Whether the plaintiff's conduct amounted to an anticipatory breach or was such as to repudiate the Sale Agreement is to be assessed objectively.64 As stated by Buss P and Murphy JA in Armada Balnaves Pte Ltd v Woodside Energy Julimar Pty Ltd:65 [509] … 'repudiation' may refer to conduct of the repudiating party which evinces an unwillingness or inability to render substantial performance of a contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it in a manner substantially inconsistent with the party's obligations. When used in this sense, the test of repudiation is whether the conduct of that party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or 63 Sneddon NC and Bigwood RA, Cheshire & Fifoot Law of Contract (12th ed, 2023) [21.13]. 64 See Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623, 647 - 648, 657 - 658. 65 Armada v Woodside [509] - [511]. -- 19 of 22 -- [2026] WASC 178 MASTER RUSSELL Page 20 of a fundamental obligation under it. Repudiation in this sense may be referred to as 'renunciation'. [510] Renunciation in this sense may be established by the promisor's express language to that effect. Renunciation may also be established where the promisor's express language and conduct conveys to the promisee that the promisor intends to fulfil the contract only in a manner substantially inconsistent with that party's obligations, and not in any other way. [511] Generally speaking, a finding of repudiation depends upon objective acts and omissions, and not upon uncommunicated intentions. (citations omitted) 90 Evidence of the alleged conversation between Mr Murray and Mr Bhalla is essential to an objective assessment of whether there was an anticipatory breach or repudiation that would have entitled the defendant to terminate the Sale Agreement. Such evidence should be tested at trial and considered in light of any evidence of Mr Bhalla about the alleged conversation and the events surrounding the issue of the Notice to Complete and the Termination Notice, and following. 91 On Mr Murray's evidence, Mr Bhalla told him on 13 December 2024, just before the Termination Notice was sent to the plaintiff, that the plaintiff was not in a position to complete on that date and sought a further extension of the already extended Completion Date. After receiving the Termination Notice, the plaintiff's response was to put forward an alternative proposal to deposit $25,000 into the defendant's account on the next business day (Monday, 16 December 2024) if the defendant was able to reinstate the Sale Agreement, with the date for completion and the date by which the plaintiff was to make full payment being extended by a further two months to on or before 28 February 2025. 92 In response, the defendant reiterated its position that the Sale Agreement was at an end. Mr Bhalla responded the next morning on Saturday, 14 December 2024 acknowledging that the agreement was at an end and asked if the defendant would consider a fresh proposal for the same transaction. In response, on Monday, 16 December 2024, Mr Murray referred to the plaintiff's inability to complete, which he said had forced the plaintiff to consider other options and informed him that the defendant had agreed an alternative transaction. He attached a copy of the ASX announcement, which included a public -- 20 of 22 -- [2026] WASC 178 MASTER RUSSELL Page 21 announcement that the Sale Agreement with the plaintiff had been terminated. 93 As submitted by the defendant, there is no evidence that the plaintiff, having been told on 16 December 2024 that the defendant's position was that the Sales Agreement was at an end, and being aware of the ASX announcement which stated the defendant had terminated the Sales Agreement, took any contrary position. There is no evidence of any correspondence between the parties following Mr Murray's email of 16 December 2024 until the tender of the Bank Cheque by the plaintiff's solicitors on 28 March 2025, more than three months later. 94 I accept that the matters raised, as outlined, raise triable issues as to whether, if the Sale Agreement was not validly terminated in December 2024, by the Termination Notice or otherwise, the parties had, by their conduct, abandoned the Sale Agreement at that point or by the time the plaintiff called on the defendant to complete. Conclusion and orders 95 For these reasons, it is not appropriate in my view to enter summary judgment. The action should proceed to trial in the ordinary course, if the matter is not otherwise resolved. 96 Nothing in these reasons should be taken to anticipate the outcome of the proceedings. For present purposes, it is sufficient to conclude that this is not one of those very clear cases where the court should order summary judgment. 97 The Application should be, and is, dismissed and the defendant should have unconditional leave to defend the action. 98 I will make orders as follows and hear from the parties in respect of the orders to be made in relation to the costs of the Application, if they are not agreed: 1. The plaintiff has leave to bring the Application out of time, the time for which is extended to the date of filing. 2. The Application is dismissed. 3. The defendant has unconditional leave to defend the action. -- 21 of 22 -- [2026] WASC 178 MASTER RUSSELL Page 22 4. Within seven (7) days of the date of these orders, the parties are to confer in relation to the costs of the Application and: (a) if agreement is reached, file a memorandum of consent orders; (b) if agreement is not reached, each party is to file a minute of proposed orders in relation to the costs of the Application. 99 The defendant has also made an application for summary judgment pursuant to RSC O 16 r 1. That application has not been progressed pending the outcome of this Application. It was advanced on the basis that if the plaintiff's application for summary judgment is dismissed, the corollary is that the defendant be entitled to summary judgment. 100 I acknowledge that the defendant's application for summary judgment is yet to be determined and, at this stage, no submissions have been filed. However, given the matters canvassed in this Application and these reasons, I do not consider that it necessarily follows that, because this Application has been dismissed, the defendant should be entitled to summary judgment. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. SC Associate to Master Russell 7 MAY 2026 -- 22 of 22 --