COMMODITIES trader Noble Resources International has taken legal action against Yancoal's Gloucester Coal claiming it is owed more than $165 million in unpaid coal marketing fees and damages.
The matter is set to be heard in the Supreme Court over two weeks in October.
Court documents reveal the companies signed an agreement in 2011 that entitled Noble to a marketing fee calculated as a percentage of the volume of coal exported from the Port of Newcastle.
Noble alleges Gloucester Coal breached the agreement in 2014 by failing to pay $US1.5 million and failing to make marketing fee payments or disclosures for 2015, 2016 and 2017, estimated at $US44 million.
In response, Gloucester Coal alleges it was not bound by the agreement, was justified in terminating it and doesn't owe Noble $US127 million being claimed.
The coal company alleges it was not bound by the agreement because the document included a clause that it could be terminated if either party was unable to pay its debts.
According to a judgement handed down by Justice James Stevenson on Wednesday addressing a dispute about pre-trail discovery of evidence, Noble Group admitted that from March 14, 2018, it was unable to pay its debts and did not notify Gloucester Coal.
"Gloucester/Yancoal served evidence to the effect that had such a notice been given, Gloucester would have terminated the agreement on the basis that it was an unprofitable contract for Gloucester as it did not, in practice, require or make use of any marketing services from Noble or Noble Group," Justice Stevenson said.
He further outlined a dispute over whether the agreement captured coal delivered to the Port of Newcastle by rail.
Gloucester Coal claims the "parties conducted themselves" on the basis the agreement did not extend to "rail capacity" entitlements it assigned to third parties to transfer coal to the port.
"Gloucester has served evidence that, if it had been aware that Noble or Noble Group would, or might, contend that rail transfers were to be included, it would and could have arranged its use of infrastructure capacity differently so as to avoid or minimise any marketing fee payable on coal exported using transferred rail capacity," Justice Stevenson said.
Gloucester Coal sought access to documents outlining Noble's executives' knowledge that Yancoal Group companies transferred rail infrastructure capacity between 2013 and 2018.
Noble estimated the cost of providing the documents was between $266,000 and $294,000.
"That is, of course, a large amount of money but is proportionate to the claim made and the complexity of the issues in the proceedings," Justice Stevenson said.
