What is the potential liability if they do lose?This was the...

What is the potential liability if they do lose?
This was the contract summary published in the High Court Judgement:

• Payment of a non-refundable deposit of US$5 million, and consideration
of US$35 million to be paid on settlement, which occurred in November
2010.
• Two further performance payments of US$40 million each would become
due on defined volumes of coal being shipped from the permit areas. The
first performance payment was due when Bathurst had shipped 25,000
tonnes of coal, and the second payment when one million tonnes of coal
had been shipped.
• When the second performance payment was due, or if Bathurst received
notice of an offer to acquire more than 50 per cent of its shares (or notice
of a transaction having substantially the same effect), Bathurst was obliged
to issue fully paid ordinary shares representing five per cent of the then
current post-issue share capital of Bathurst.
• In addition to that sequence of payments, Bathurst was obliged to pay
royalties on amounts received for sales of coal. The detailed royalties
provisions were recorded in a separate deed of royalty, a draft of which was
annexed to the ASP and which was separately completed in August 2010
(the royalty deed). The initial royalty rate was 10 per cent of gross sales
revenue of coal, but after the first performance payment was made the rate
would drop to five per cent until the second performance payment was
made, and thereafter would be 1.75 per cent.
• If Bathurst was constrained by regulatory requirements, or for any other
reason, from issuing shares to L&M when the second performance measure
was achieved, then in lieu of the issue of those shares the relevant royalty
rate in the royalty deed would increase by two per cent.

It is but a mere summary, but it reads to me that they can only really claim the 5% share issue, not the performance payment...
There also seems to be a get out clause that Bathurst can just increase the royalty payment by 2%. Which as we know, equates to sweet FA

Any more insight?