Trial Date - Set for the 13th of April 2015
Court Transcript - 30th of October 2014
On Thursday the 30th of October 2014
Paul Batista: New York Judge Denies Smart Win's Motion for Summary Judgment against Empire Energy Corporation International.
NY, NY, October 30, 2014. Justice Jeffrey K. Oing of the New York State Supreme Court today denied the motion of Smart Win International Limited for an award of summary judgment against Empire Energy Corporation International. Justice Oing also ruled that Empire could proceed on its breach of contract counterclaim against Smart Win.
Earlier this year, Smart Win had moved for summary judgment of more than AUD $2 million judgment against Empire. Justice Oing determined that the 2008 agreement between Smart Win and Empire did not preclude the possibility that Empire's costs in drilling for oil in Tasmania might exceed an AUD$ 5 million funding commitment by Smart Win reflected in the 2008 agreement. The judge noted that, for purposes of a summary judgment motion, the fact that Empire's prediction that the initial drilling costs might exceed AUD $ 5 million did not entitle Smart Win to "turn off" the funding "spigot" of up to the AUD $ 5 million commitment even if Empire, as it pursed its drilling efforts based on Smart Win's commitment of as much as $ 5 million, faced the possibility of cost overruns beyond the AUD $ 5 million. According to its own complaint, Smart Win stopped making advances after it had advanced only approximately AUD $ 3 million of the AUD $5 million.
Justice Oing explicitly ruled that summary judgment could not be granted to Smart Win on all four of the causes of action it had asserted in the complaint Smart Win filed in 2010.
Justice Oing also determined that Empire's counterclaim for breach of contract against Smart Win stemming from Smart Win's suspension of advances could proceed to trial. In responding to a suggestion by Smart Win's counsel that any damages caused to Empire by Smart Win's suspension of advances was "too speculative," Justice Oing disagreed with that position, specifically reading into the record the testimony of John Garrison, a director of Empire, that, as Mr. Garrison testified, the conduct of Smart Win "stopped the process of drilling this well. It stopped the process before we [Empire] were able to reach a point in the well of proving that it was a productive well. There were hydrocarbons there to recover. [Smart Win] restricted us from raising other funds. It created significant uncertainty around this by having the issue that was detrimental in dealing with other parties. It put uncertainty into other fund-raising. It stopped our progress and left us incurring standby costs from the drillers because they couldn't move ahead. So it increased the costs and shut down the process, and essentially put the company out of business. [Smart Win] added ammunition to the state of opponents trying to take the license from us."
After quoting this deposition testimony by Mr. Garrison, Justice Oing ruled that a trial was needed on the extent to which Empire sustained damages as a result of Smart Win's possible breach of the full funding commitment. The judge commented that the damages Mr. Garrison identified were not "speculative" for purposes of a motion for summary judgment and that a trial was necessary at which Empire could seek to attempt to prove the financial damages it sustained as a result of what Mr. Garrison described as Smart Win's "putting" Empire "out of business."
Under New York law, a motion for summary judgment is a process by which one party seeks to avoid trial by asserting that the facts are so clear that the party moving for summary judgment should win solely on the basis of information contained in affidavits and other documents. When summary judgment is denied, the issues as to which summary judgment were sought are reserved for trial.
Justice Oing also determined that the 2008 agreement between Empire and Smart Win, while it did contain language relating to a joint venture between Empire and Smart Win, also indicated that a further, more detailed agreement was required for a formal joint venture and that such an additional formal document, while prepared in draft, was never executed. Justice Oing noted that a joint venture could arise from an oral agreement, as Mr. Batista and Empire had argued, but that under the relevant original contract documents, although they referred to a "joint venture" between Smart Win and Empire, it was essential that a further document be executed. Smart Win's funding of the project stopped before that further document was finalised.
According to Mr. Batista, the judge's observation that a further written document was required before a formal joint venture was formed should not have an impact on the amount of damages Empire can attempt to prove on Empire's surviving breach of contract claim claim against Smart Win. In other words, Mr. Batista said, the damages for breach of contract, if Empire can establish that Smart Win breached the contract, would be the same as if the joint venture claim had survived.
Mr. Batista notes that nothing in today's rulings by Justice Oing can be viewed as a prediction as to whether Smart Win or Empire will prevail in whole or in part on their respective claims against each other. Now that the summary judgment motion has been resolved, Mr. Batista stresses that It is only a trial with actual witnesses and documents that will determine the claims and counterclaims.
The next status conference is scheduled for December 4, 2014. Its purpose will be to set a trial date. In response to an issue raised by Smart Win's counsel, Justice Oing refused to rule today on whether, as Mr. Batista has requested, the trial should be held in front of a jury or, as counsel for Smart Win has urged, the trial should be held solely in front of the judge himself as the trier of fact. Justice Oing said that issue could be resolved at a later date.
Trial Date - Set for the 13th of April 2015
Court Hearing - 30th of October 2014
Smart Win's Motion for Summary Judgment Denied.
Empire's Counterclaim against Smart Win will proceed to trial.
Court conference - 8th of January 2014 at 10am (Eastern Time)
To hear Empire's Application that the complaint filed by Smart Win in the Supreme Court of New York City be stricken on the basis that Smart Win have failed to comply with a previous Court Order dated 2nd October 2013 in their refusing to make court witnesses available by the 17th December 2013.
Smartwin Case - Memorandum of Law in Support - 3rd of December 2013
Smartwin Case - Motion to compel - Granted - 3rd of October 2013
CEO Update - 30th of August 2013
On Tuesday the 19th of February 2013, Empire Energy Corporation International (Empire) issued a press release, as follows:
SENERGY FEB 2013 CPR ESTIMATES 2.7 TCF OF GAS = TO 508 MMBOE. THREE PETROLEUM SYSTEMS PROVEN ON EL 14/2009, VISION, WORK, EXPENDITURE AND GAS MARKETS VALIDATED IN 2012. CEO INVESTED FURTHER USD $300,000, 18 WEBSITE BOXES DESCRIBE THE FOUNDATION FOR 2013. TXO RAISED USD $1,654,615 TO ASSIST FUND, GBG INTO CASH FLOW, TOG TO PLAN DRILLING, TOG/EMPIRE SMARTWIN CASE AND SENERGY CPR. A BASE FOR FURTHER CAPITAL RAISING AND DRILLING ESTABLISHED. ALPHA USD $1.6M TOG OPTION. EMPIRE HAS 45% OF TOG.
LEAWOOD, Kansas, Tuesday the 19th of February 2013 - Empire Energy Corporation International (Empire) (EEGC - News) recently lodged four 8K filings, (as exhibited on the Empire Energy website www.EmpireEnergy.com) on Dec 3rd 2012 (Box 1), Jan 14th (Box 2), Jan 18th (Box 3) and Feb 19th 2013 (Box 4) of TXO Plc (TXO) press releases, dated 3rd Dec 2012, Jan 11th, Jan 18th and Feb 12th 2013, describe among other events TXO's, USD $1,654.615 (£1,043,000 GB pounds), capital raise. These funds were invested in Tasmania Oil and Gas Ltd (TOG) in which TXO now has a 25% interest (Box 4) and Grand Bahamas Group (GBG) which announced two large contracts for waste oil, from which they believe they will receive significant benefit in 2013, through their current 30% interest in the (GBG).
Tasmania Oil and Gas Ltd (TOG)
These announcements also indicate TXO's investment of these funds into both the further seeding of TOG and to start generating a cash flow from the receipt, beneficiation and sale of waste oil in Freeport, Bahamas from GBG's contracts. Hill Street investments has transferred its 50% interest in the Smartwin court case to TOG and in addition capitalized its historical expenditure on the case. As a result Hill Street now owns 10% of TOG. Alpha Prospects Plc. (Alpha) has an option to pay in cash or shares to acquire its 20% interest in TOG to comple a USD $1.6m investment into TOG. Empire has a 45% interest in TOG and has invested USD $200,000 to support TOG.
Box 5 on Empire's website, summarizes in a TOG Tasmania Basin EL 14/2009 power point presentation, TOG's data and plans including a link to the new TOG website. Boxes 6 to 14 outline the key references and data supporting the analogy with the Cooper/Eromanga Basin, Gondwana Petroleum System, in Central Eastern Australia (TOG, oil and gas, Play 1, Box 5). The Tasmania Basin TOG project also saw the validation of the analogous, Amadeus Basin; Larapintine Petroleum System in Central Australia (TOG, gas and oil, Play 2, Boxes 5 & 12) and McArthur River Basin; Centralian Petroleum System in North Eastern Australia (TOG, gas and helium, Play 3, Boxes 5 & 13) in 2012. The three petroleum systems described above have all therefore now been proven on Mainland Australia and in the Middle East at Oman. This validates our Frontier Basin, groundbreaking, fundamental research, findings and cuttings, shows, induced flows of oil, gas and Helium from wells drilled in the Tasmania Basin over the last 35 years, once and for all proving the message board skeptics and critics wrong.
Further Cash Injections by the Empire CEO into Empire and TOG
Since Jan 2012 Empire's CEO, Malcolm Bendall, has made further cash injections into Empire of over USD $300,000 and intends to continue funding Empire's ongoing operations this year. This investment has financed amongst other things:
a) Empire and TOG's US legal action in New York with attorney Paul Batista Esq. who instructed Malcolm Bendall and John Garrison to attend the Smartwin depositions in New York last month. These have now been successfully completed;
b) Payment of Empire's contribution of USD $200,000 toward the establishment and growth of TOG;
c) The supply of technical support and data for the Senergy (GB) Ltd (Senergy) CPR report by Global Exploration Services (GES) consultant Enzo Zappaterra.
d) Compliance with USA and Australian regulatory requirements, including the preparation of accounts and transfer agent costs;
e) The Nevada registration for Empire;
f) Supporting the Great South Land Minerals Ltd (in Liquidation; Receivers and Managers appointed) (GSLM)
receiver managers, Sellers Muldoon and Benton (SMB) and Tasmanian legal counsel, Butler McIntyre and Butler (BMB).
BMB and SMB continue to work together with TOG to have an Administrator appointed to GSLM and execute a Deed of Company Arrangement ("DOCA") with the intention to then bring GSLM out of Liquidation. To this end Empire, TXO, Alpha, Hill Street and TOG continue to work together in conjunction with the proposed Administrators and Receivers Managers of GSLM, SMB, to prepare a DOCA that will also require the approval of the majority of GSLM's creditors prior to the sanction of the Court.
Potential Supply to Eastern Australian Gas Market
Three recent articles from Australian newspaper, "The Australian", a newspaper based in Sydney, on Dec 21st 2012, Jan 19th and Feb 9-10th 2013 (Box 6), reported that Origin Energy has signed a deal to provide natural gas to Chinese-controlled miner MMG at a price close to $9 a gigajoule beginning in 2015. This reported price is more than double current prices and 50% higher than other long-term deals. This arrangement indicates expected higher future prices for domestic and export gas in the future when Liquid Natural Gas exports from Queensland to Asia begin. Australia currently has an oil world parity pricing policy, which has been in place for the last 50 years this will have a great impact on the economics of oil and gas exploration and production in the future, as the domestic market competes with international sales. The third article was in the Australian Financial Review (Box 6) published on the 21st Jan 2013 further expands on the looming crisis in the supply of gas to the Eastern Australian Market.
Senergy CPR report
The Directors of Empire believe this pricing improves and confirms the value of TOG's exploration license EL 14/2009 in Tasmania, Australia. This potential has been further defined, in the Senergy, Competent Persons Report (CPR), published last week (Box 15). TOG contracted Senergy, in October 2012, to complete an updated CPR on EL 14/2009. The first draft of the report was received on Monday 21st Jan and a review was completed and the final CPR was signed and delivered to TOG last week. Empire and TOG are pleased with the final report as it identifies the volume of prospective resources associated with two principal leads and prospects of the license. It also re-assesses the geological chances of success. In terms of hydrocarbon volumes, Senergy estimate total mean recoverable prospective resources of 2,755 Bcf (Billion cubic feet) of gas or 2.7 Tcf (Trillion cubic feet) approximately equivalent to 490 million barrels of oil (490 MMBOE), for both the Ordovician/Silurian Larapintine and Permian Gondwana Systems. When estimated mean resources of 18 million barrels of Permian oil are added, the cumulative mean recoverable prospective resources for the Bellevue and Thunderbolt prospects total 508 MMBOE (Million barrel oil equivalent) or 0.5 BBOE (Billion barrel oil equivalent) (Box 16). This resource figure does not include the other 10 structures, now outside our current EL14/2009 license area, which is still under dispute with MRT and also make up part of the losses counter claimed against Smartwin, noted in the previous RPS Energy report (Box 11) that are planned to be documented by Senergy in their next report. To be clear the new Senergy report including the Gondwana and Larapintine Petroleum Systems have almost doubled the original resource estimates on Bellevue and Thunderbolt.
Empire has used Senergy's results (Box 15), known Tasmanian gas market parameters and costs to determine risk-adjusted Net Present Value (NPV) calculations of the gas resources identified in (Box 14).
Tasmanian Onshore gas production could deliver up to the maximum annual capacity of 40 Petajoules (40,000,000 Gigajoules), of gas per year through the Bass Strait Seafloor pipeline for over 60 years, at average prices expected, over that period, to well exceed $10 a Gigajoule. This would equate to a potential projected average annual cash flow of about USD $400,000,000 per annum from sales to the Eastern Australian gas market, (including Sydney, Melbourne, Adelaide and Brisbane) using the full capacity of the existing 16 inch, 250Km Bass Strait pipeline, which is currently supplying Tasmania's domestic and industrial needs. The Bass Strait Pipeline can have its direction of flow reversed as it was built to establish a Tasmanian market first and then reverse to supply Gas to both Tasmania and the Mainland Australian markets.
Empire intends to aggressively pursue, in anticipation of discovery and production as a result of its anticipated 2013 drilling program, long term Gas contracts to supply mainland Australia and the unsolicited Jet fuel sales contract with the US Navy. Senergy's CPR has further validated the potential of the Tasmanian project which is intended to be followed by a further capital raising, drilling, further discoveries and production in 2013.
Court Extension to EL14/2009 Hearing and Smartwin depositions successfully completed
As a result of a scheduling conflict with the Smartwin depositions in New York and the Tasmanian hearings, as Malcolm Bendall is the prime witness being CEO for both GSLM and Empire a request was made to move the Tasmanian hearing. SMB requested BMB to ask the Tasmanian Magistrates Court, in Australia, to reschedule another court hearing date. With agreement of the Crown, the court has graciously extended the hearing date commencing the 22nd of April 2013. Empire CEO Malcolm Bendall and President John Garrison attended Smartwin depositions along with their legal councel Paul Batista Esq in New York and were very pleased with the developments.
Bass Energy Pty Ltd (in Liquidation) (Bass) has wind farm projects in Tasmania, which, if developed, may supply Green Credits, which Empire could use to offset potential future oil and gas production Green Debits. Empire is in negotiations to acquire control of Bass.
CEO Malcolm Bendall commented
"Empire, which has now invested over USD $65 Million in fundamental scientific research, and its partners have established a new solid commercial business plan and built a technically sound internationally recognized foundation through the establishment and funding of TOG. TOG has three listed companies who have successfully pooled their financial and human resources, including notably Global Exploration Services consultant Enzo Zappaterra, to produce the Feb 2013 Senergy CPR report. Nobody can now deny the truth of the now twice independently validated potential of the Tasmania Basin project with the recent cumulative mean recoverable prospective resources, for the Bellevue and Thunderbolt prospects, total of 2.7 Trillion Cubic Feet of Gas or 508 Million Barrels of Oil Equivalent having a gross in ground value today (assuming $100 a barrel oil price) of over USD $50 Billion. At 40 PJ (40,000,000,GJ) per year, filling the Bass Strait pipeline to maximum capacity, would supply gas to domestic and industrial consumers in both Tasmania and Australia for 67.5 years. The anticipated average price over the 25 year period covered by the spreadsheet in Slide 2 (Box 14), is very conservative $10 per GJ ($16 a gigajoule would be equal to the current oil price) which equates to gross potential earnings from gas sales of $400 million per year."
Reference documents found at www.EmpireEnergy.com
This Empire press release has cited 18 Website boxes that are exhibited in red boxes, numbered 1 to 18 on the Empire Web site (www.empireenergy.com).
6) Three Australian newspaper articles on the increase in gas prices in the Eastern Australian market which Tasmanian onshore gas production could supply 40 Petajoules a year through the Duke Energy 16 inch 250km sea floor pipeline. Financial Times articles on TXO in London and on the looming crisis of supply in the "The Australian" in Australian industrial and domestic gas markets.
9) Gondwana Conference Paper, Bendall et al 1991, Validating the work of Dr Eugene Domack confirming Gondwana (200 to 300m yrs.) Petroleum System particularly the source rock potential of the Late Carboniferous Tasmanites oil shale, the current world standard for type one Kerogen (Marine Algae).
12) Petroleum Systems in the Amadeus Basin, Central Australia: Were they all oil prone? By T.R. Marshall et al. A 2012 Paper validating the oil prospectivity of the Australian, Larapintine (Ordovician 460m yr.) Petroleum System.
Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
EMPIRE ENERGY CORPORATION INTERNATIONAL
Dated: Friday, February 19, 2013
By: /s/ Malcolm Bendall
Mr. Malcolm Bendall
Chief Executive Officer