Billabong Gold Pty Ltd v Vango Mining Ltd [No 2]

[2023] WASCA 58

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Assignment
2. › Choses in action
3. › Bare cause of action
4. › Whether assignee had genuine and substantial interest or genuine commercial interest independent of assignment
5. › Whether need for pre-existing commercial interest anterior to assignment
6. › Public policy against trafficking in litigation
1. Contract
2. › Novation
3. › Pre-authorised novation
4. › Whether clause permitting disposal to third party effected novation
5. › Whether novation operated prospectively from date of novation
1. Remedies
2. › Equitable relief
3. › Mandatory injunction
4. › Right of first refusal
5. › Whether mandatory injunctive relief inconsistent with previous injunctive relief granted in respect of other causes of action
6. › Hardship
7. › Election
1. Practice and Procedure
2. › Appeal
3. › New point raised on appeal
4. › Whether defence of hardship could be raised for first time on appeal
5. › Whether point could possibly have been met by calling evidence at trial

Quick Take

For the valid assignment of a cause of action, the assignee's commercial interest need not pre-date the assignment; it is sufficient that the interest be genuine and distinct from the assignment itself. A contemporaneous commercial interest arising from a composite transaction (such as the purchase of a business) is sufficient to support the assignment of accrued causes of action. The question of whether a pre-existing interest is required, left open in Equuscorp v Haxton and Bakewell v Anchorage Capital, is resolved in the negative.