Extract from The Guardian
Exclusive: Queensland supreme court says company engaged in ‘unconscionable conduct’
Last modified on Fri 28 Aug 2020 17.23 AEST
Adani has quietly begun planning to rebrand its Abbot Point coal terminal – removing all reference to Adani in its company name and branding – as financiers continue to abandon the business and a Queensland court orders it to pay $106.8m in damages.
The Queensland supreme court this week ordered Adani to pay four terminal users damages for “unconscionable conduct” in a judgement that was scathing of Adani’s actions to advantage its own financial interests over other coal companies.
In the 93-page decision, the supreme court justice Jean Dalton said Adani’s ports business “attempted to disguise its behaviour in complex transactions”, engaged in conduct outside the boundaries of normal commercial behaviour, and “pleaded matters which were false”.
Name change planned as more investors pull out
Guardian Australia can reveal that Adani reserved two new company names with the Australian Securities and Investments Commission on 18 August – eight days before the court judgement. The Asic documents flag its intention to rebrand Adani Abbot Point Terminal and its holding company as the “North Queensland Export Terminal”.
In July, an Adani employee registered the web domain www.nqxt.com.au on behalf of Adani Abbot Point Operations, a separate company that manages the operations of the export terminal.
Climate campaigners say the move appears to be Adani “changing what has obviously become a toxic brand” amid its ongoing difficulties refinancing the port’s debts.
The Guardian can also reveal two additional Korean investors have, under pressure from climate activists, said they will dump their investments in Adani’s port, which has total debts of $1.5bn.
In recent days, Korean Investment Securities and Industrial Bank of Korea have written to activist groups confirming they will not offer further finance to the port, which would export coal from Adani’s controversial Carmichael coalmine.
Adani’s debt difficulties at Abbot Point necessitated the terminal’s Indian parent company, Adani Enterprises, urgently injecting $100m needed to meet repayments due in May.
The terminal has also drawn down on about $170m of shareholder loans to pay off debt – owed to the Commonwealth Bank and Westpac – that was due to mature in November.
Finding of ‘unconscionable conduct’
On Wednesday, the Queensland supreme court made a lengthy judgement in a long-running legal dispute between Adani Abbot Point Terminal and four coal companies with ongoing agreements to export coal from the facility.
In 2016, a Rio Tinto-owned company, Queensland Coal, negotiated an agreement to assign its rights to export coal from the port to Adani’s mining arm from 2022. Adani was paid a total of $255m by Queensland Coal in the deal.
After signing this deal, Adani then increased user and handling charges for other companies at the port, which the latter claimed had advantaged Adani’s business interests over other port customers.
Justice Dalton’s judgement said the port is “in practical effect … a facility shared and paid for by all the users, although not under their control” and that the “monopolistic nature” of Adani’s ownership placed users in a position of “economic vulnerability”.
She found Adani engaged in “unconscionable conduct” and awarded the four coal companies sums totalling $106.8m.
“[Adani] exercised contractual power to obtain a large financial reward,” the judgement said.
“It deliberately chose to do so knowing that it would thereby disadvantage the respondents. It was not just acting in its own commercial interests as port owner; it was acting on instructions from, and in the interests of [a parent company].
“There were alternatives available which would have enabled it to protect its own interests, advantage [its parent company], and not disadvantage the respondents. [Adani], Queensland Coal and [an Adani employee] recognised that its conduct was not within the boundaries of normal commercial behaviour.
“It attempted to disguise its behaviour in complex transactions. It attempted to include dishonest recitals in those transactions. It pleaded matters which were false in this proceeding and had [an Adani employee] give false evidence in its case.
“In my view these matters establish unconscionable conduct as alleged by the respondents.”
Adani considering judgement
Adani said in a statement the company is “carefully considering” the judgement.
“The decision concerns a dispute between the company and four of its commercial customers relating to terminal handling and access charges at the Abbot Point port,” a spokeswoman said.
“Whilst respecting the judgment of the supreme court, the matters in dispute between the parties are complex and Adani Abbot Point Terminal in conjunction with its legal advisers will review Her Honour’s reasons and consider the company’s rights of appeal.”
Adani did not address questions about why it had flagged a rebrand of the business and whether this was related to the court case or the ongoing attempts to refinance the port’s debt.
Pablo Brait, a campaigner for investor action group Market Forces, said: “It looks like Adani is trying to lure investors back to its heavily indebted coal port by changing what has obviously become a toxic brand.
“You can put lipstick on a pig, but it’s still a pig.”
No comments:
Post a Comment