Fabulous NR by TUO: an application for an amended response to AMK’s Civil Claim. Honestly it’s like poetry in motion.
The application is to be made on Monday, July 9, 2012 at 9:45am BC time – the first day of the summary trial.
There are some new terms to consider per the amended response:
1 Division 2, paragraph 7 – “the Reasonable Expenditure Requirement”
2 Division2, paragraph 8 – “the Alternate Reasonable Expenditure Requirement”
3 Division 2, paragraph 9(a) – “the CIM Guidelines” (this is the Canadian Institute of Mining, Metallurgy and Petroleum published Exploration Best Practices Guidelines)
4 Division 2, paragraph 9(b) – “the excluded expenditures”
These are collectively referred to as “the Implied Terms of Reasonableness, Competence and Value” in the amended response.
So TUO has now based their entire defense upon these “Implied Terms of…”
The judge is going to say if that’s what you meant (the implied terms) you should have stipulated that in the original option agreement or the amendment to the option agreement – any expense accepted by the Mineral Titles Branch of the BC government will stand as such now if it’s not been clearly outlined in the option agreement otherwise. The court will not rewrite the option agreement to suit TUO.
TUO then goes on to state that (Part 2 paragraph 3) AMK is entitled to compensation upon a declaration that AMK has no interest in the Property (Treaty Creek), then AMK is only entitled to compensation based on quantum meruit calculated on the basis of the value to TUO of the exploration work done on the Property by AMK and not calculated on the basis of the expenditures made by AMK for exploration work.
First off – AMK has nothing to renounce if they did not meet the terms of the contract. Kinda weird they put this in at all, huh, after stating AMK has not fulfilled the agreement (Part 1, Division 2 paragraph 6)? If AMK did not meet the terms why would they have anything to renounce? Odd…
Secondly – if the terms have not been met then AMK would be up the creek without a paddle as far as expenses go. Again it’s very strange this is put in here – the bit about compensation base on quantum meruit (meaning “what one has earned”). When we go to the legal dictionary here’s what it means: Quantum meruit determines the amount to be paid for services when no contract exists or when there is doubt as to the amount due for the work performed but done under circumstances when payment could be expected.
Well that’s odd isn’t it? If AMK hasn’t fulfilled the agreement as TUO claims in (Part 1, Division 2 paragraph 6) why would they now make provision for compensating AMK, would it not be zero?
Clearly TUO’s lawyer is a defense specialist – he’s trying to minimize damages payable by TUO.
We will see you in court in 30 days.