Well I suppose it might be worth revisiting MZN's original announcement where from memory they claimed that a binding agreement existed and they asked KDR to move towards the making of a HOA.
Has a Joint Venture been formed by those emails? No.
Was a HOA agreed to in those emails? No, by MZN's own admission they want KDR to move to this stage as one leg of their current claim in the court.
Can a binding agreement be made through phone conversations and emails? I would say the answer is yes but to be 100% sure one would need to find the defining case law which I'm not going to do now.
So if we can assume for one minute that the 7 month delay in asking KDR to move to the HOA didn't exist, and those conflicting statements in MZN's company announcements, where MZN refers several times to EG has belonging to KDR didn't exist, and the fact that the existence of the alleged binding agreement was never disclosed to the ASX......if we can forget all that and for one minute assume it is not relevant to what MZN are asking the judge to decide (which personally I'd image you can't assume) what are we left with? We are left with a case about whether a contractual agreement existed between MZN and KDR, the agreement being simply that KDR, according to MZN, is obliged to move to the next stage (whatever that might be) of a HOA. Under the very unlikely assumption that none of the above factors are relevant to determining this simple question and the judge finds that a binding agreement exists, then I'd think MZN might be entitled to some form of damages and KDR would then not be entitled to any damages.
As I've mentioned in a previous post I think it would probably be possible (I'd need to check the Supreme Court rules) for KDR to file a counter claim as part of the present proceedings (if the court gave them leave). That counter claim could in theory include damages along the lines that you are proposing. At this stage KDR hasn't elected to pursue this route (if it's even available to them I'd need to check).
If MZN withdrew its claim prior to the trial, ie applied to have the case discontinued, then I suspect KDR could look at the case for damages, at this stage it probably revolves around whether or not a bargain had ever been struck in the first place. Even if that bargain is found to have been struck to move to the HOA, then the final terms of the that heads of agreement would still need to be agreed before that agreement would be binding in my opinion, so the question of the lithium rights to the tenement would still need to be considered, ie did that bargain bind KDR in any way with respect to those rights (I don't think it could have but I'm not certain). You see we might be looking at to different questions, the answer to the first might determine the answer to the second but not MZN's rights to claim damages if the first question is found in their favour.
The real risk for KDR is how long could MZN continue to pursue their rights, if they have any, and ultimately what are they trying to achieve by pursuing their rights, if they have any.
This is all largely opinion and shouldn't be relied on in any way, I am not qualified to give legal opinions. DYOR Eshmun
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