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Gold/Mining/Energy : Winspear Resources -- Ignore unavailable to you. Want to Upgrade?

To: Andrew who wrote (26030)	6/30/2000 9:36:02 PM
From: Andrew	Respond to of 26850

Winspear Diamonds Inc - Aber loses security round in court to Winspear Winspear Diamonds Inc WSP Shares issued 51,634,088 2000-06-30 close $4.21 Friday Jun 30 2000 See Aber Resources Ltd (ABZ) Street Wire by Brent Mudry In the latest court tangle between Aber Resources Ltd. and Winspear Resources Ltd., Aber has lost a bid to secure half of its property payments to Winspear relating to the contentious Camsell Lake diamond joint venture in the Northwest Territories. (Winspear Resources was renamed Winspear Diamonds Inc. on Friday.) In a nine-page decision released Friday by the Court of Appeal of British Columbia, Mr. Justice Lance Finch dismissed Aber's application for a court order preserving 17.34 per cent of the funds payable by the two parties under the joint venture agreement. The speedy decision comes three days after a chambers hearing in appeal court on June 27, with submissions from Aber lawyer Howard Shapray of Shapray Cramer & Associates, and Winspear lawyers Robert G. Ward and David Towill of Edwards Kenny & Bray. Aber made the court move soon after winning its fight to preserve its 17.34-per-cent in the project, over half of its total 32.24-per-cent interest. In a Rule 18A judgment issued April 10 by the Supreme Court of B.C., Aber won an order to retain the 17.34-per-cent interest, conditional on paying $4-million within 30 days, representing its share of financing for the joint venture's 1999 exploration program. Aber had launched the high-stakes court battle after project operator Winspear attempted to cut Aber's Camsell Lake interest from 32.24 per cent due to Aber's alleged non-participation in the 1999 work program. The trial judge ruled that Winspear was out of line, and restored Aber's full interest. A month after the supreme court decision, Aber and Winspear were back in court on May 11 for "directions" on the matter, and Winspear obtained an order for payment by Aber of a further $428,450 within 30 days, as Aber's contribution to the 1999 supplementary exploration program. Winspear lost an application for amounts payable for the 2000 exploration program. Appeal court Judge Finch notes that Aber made the $4-million payment within the 30 days ordered by the trial judge, and subsequently paid the additional $428,500. "The defendant (Winspear) has now issued a cash call for the year 2000 exploration program, of which the plaintiff's 32.34-per-cent share will be about $8-million. To maintain that interest the plaintiff will therefore be required to pay for the 1999 and 2000 exploration programs a total of about $12-million," states Judge Finch. In its appeal court wrangle, Aber, claiming Winspear is in poor financial condition, applied to have its 17.24-per-cent payment segregated and secured to ensure it could retrieve its funds if Winspear wins its appeal of the high-stakes 18A ruling. "The defendant (Winspear) says the plaintiff's (Aber's) concerns are unfounded. It says its financial condition is sound, and that if it succeeds on appeal it will be able to repay the plaintiff's 'overcontributions'," notes Judge Finch. To show its good faith, Winspear told the court that if it wins its appeal and it is unable to pay Aber's overcontributions to the 2000 exploration program, it will effectively forfeit its win and granted Aber the claimed 32.24 per cent interest. "The defendant undertakes, on the affidavit of its chief financial officer, R.J. Macdonald, to refund the excess payment within 90 days, in default of which it would consent to a declaration that the plaintiff was a 32.24-per-cent owner in the joint venture," states Judge Finch. "In my respectful view, the plaintiff is not entitled to any relief beyond that offered by the defendant's undertaking," ruled Judge Finch. The judge notes he was not shown anything in the joint venture agreement which would allow Aber to make its contributions to the 1999 and 2000 programs by paying the required amounts into a separate fund, as Aber sought in this application. "Either it must participate in the program as contemplated by the agreement, or it must bear the consequences of non-compliance," states Judge Finch. Aber's lawyer Mr. Shapray did not leave court entirely empty-handed, however. While Winspear offered a 90-day repayment period, Mr. Shapray argued that 30 days would be more fair. The judge split the difference, and fixed the period at 60 days. "The plaintiff's application is therefore dismissed upon the defendant's undertaking to refund to the plaintiff any excess payments within 60 days of the appeal's disposition, together with interest at such rate as the court may order, in default of which payment the defendant will consent to a declaration that the plaintiff is the owner of 32.24 per cent of the joint venture interest," ruled Judge Finch. The judge awarded costs to Winspear, noting that it was "substantially" successful in opposing Aber's application. (c) Copyright 2000 Canjex Publishing Ltd. canada-stockwatch.com