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John Merlo secures relief constraining mine giant from having recourse to an unconditional financial guarantee and security

Actions against mine giants

Recently I prevented a mine from converting an unconditional financial guarantee for an alleged failure to hand over a sewerage treatment plant in working order.  Restraining an unconditional financial guarantee and security is a very difficult thing to do. 

 

In this case I was able look at the mine giants conduct and collect forensic evidence of misleading and deceptive conduct. The mines staff were deliberately destroying the sewerage treatment plants ability to process sewerage in the biozone by pouring chlorine into the biozone.

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Forensic evidence was strategically collected and analysed and an expert report was produced. The mine was put on notice that open correspondence would be produced and relied on as tithe question of costs.

 

This matter serves as an example of my use of strategy and evidence gathering to achieve commercial results in a surprisingly short period.

​In another matter for another client, John Merlo commenced adjudication proceedings against a mine. 

The matter was au fait accompli, the mine giant was caught with red hands, its workers having sabotaged the clients expensive equipment in a giant wash down facility built by the client.  Back to base remote reporting was streaming in data and footage detailing the sabotage. 

 

On the day the adjudication response was due the Queensland Supreme Court handed down the decision in Agripower Australia Ltd v J & D Rigging Pty Ltd & Ors [2013] QSC 164. That decision effectively said that all construction work carried out on a mine site was not able to be adjudicated. Wilson J in her reasons effectively said that a mine lease was an artifice over the actual land, and construction work attached to the lease, and not the land so that BCIPA and adjudication did not apply. 

 

The decision destroyed a month of carefully drafted submissions and evidence which was certain to succeed.

 

Deprived of income, the only option to the client appeared to be litigation. All options and likely outcomes were analysed and considered.

 

I advised the client to suspend the work under the contract, knowing that the Mine would then purport to terminate the contract and take the wash down facility under control. 

 

The wash down facility was critical to the mine giants operations, as heavy plant could not be moved from one area to another without wash down and clearance. It was understood that an issue arose concerning the Environmental Protection Act, as fire ants were known to be on the mine site, and various other pollutants were produced by the mine. It was clear the Environmental Protection Act   which would be breached if the mine took control of the wash down facility.

 

The Mine did in fact purport to terminate, and take control of the facility and I was briefed to seek an injunction restraining the mine giant from operating as without a properly functioning wash down facility operations would certainly breach the Environmental Protection Act.

 

Immediate injunctive relief was threatened and the consequences of shutting down the mine were made clear, economically the mine stood to lose tens of millions of dollars.

 

In that light, sensibility prevailed, the Mine paid the client, and the wash down facility was completed and handed over.

 

This matter serves as an example of the expert legal and strategic thinking I bring to your matters.

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