In proceedings against Atlantic Nickel Mineracao Ltda (Atlantic Nickel), Mining Standards International Pty Ltd (MSI) alleges that it lost the opportunity to acquire the Santa Rita nickel mine in Brazil when, due to Atlantic Nickel’s conduct and that of associated parties, it was prevented from completing a sale agreement for the mine’s assets, which it valued at approximately US$745 million.
MSI applied to amend its statement of claim to provide more detailed particulars of its “loss of opportunity” claim. Atlantic Nickel opposed the amendments, arguing they introduced a new, time-barred cause of action, would cause prejudice or delay, and failed to give adequate notice of the causation theory. The Court found that the amendments did not introduce a new cause of action but rather clarified and elaborated on the existing claim, particularly the counterfactual scenario and the steps MSI would have taken had the alleged wrongdoing not occurred.
Justice Derrington held that the amendments were permissible, as they arose out of substantially the same facts as the original claim and did not fundamentally alter the nature of the dispute. The Court emphasized that, in complex commercial litigation, pleadings need only provide sufficient clarity to inform the opposing party of the case to be met, with further details to be developed through evidence and expert reports. Any prejudice to Atlantic Nickel could be addressed by costs or requests for further particulars.
The Court granted MSI leave to amend its claim, ordered it to pay any costs thrown away by the amendments, and directed that the costs of the application otherwise be each party’s costs in the proceedings.
Matthew Hickey OAM KC appeared with Emma Hoiberg of Counsel, instructed by Allens and King & Wood Mallesons.
The judgment can be read by clicking here
