FEDERAL COURT OF AUSTRALIA

Rexel Electrical Supplies Pty Limited v Mentha (Administrator) in the matter of ACN 004 410 833 Limited (formerly Arrium Limited) [2018] FCAFC 229

ORDERS

THE COURT ORDERS THAT:

1.    Within 21 days hereof, the parties file and serve an agreed minute of proposed orders (including on the question of costs), or in the absence of agreement, the parties file and serve short submissions (limited to 3 pages) as to their preferred proposed orders (including on the question of costs).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    This is an appeal from the whole of the judgment and associated orders of the trial judge given on 15 December 2017, Mentha v Epic Energy South Australia Pty Ltd, in the matter of ACN 004 410 833 Limited (formerly Arrium Limited) [2017] FCA 1530 (the ‘primary judgment’), in which the trial judge answered in the affirmative both parts of the following question raised for determination:

On a proper construction of the Documents:

(i)    are each of the Financiers entitled to prove under the Arrium Distribution Deed of Company Arrangement dated 4 November 2016 (“DOCA”) for the amount (if any) of its Arrium Group Claim (as defined in the DOCA), without deducting the amount of its share of the Moly-Cop Proceeds or any part thereof?; and

(ii)    are the First Plaintiffs justified in admitting the Financiers to proof accordingly?

Where:

“Documents” means:

(a)    the Override Deed between, among others, the First Plaintiffs, the Second Plaintiffs and the Financiers, dated 30 September 2016;

(b)    the Required Consent Report made for the purposes of the Override Deed by, among others, Arrium Ltd, dated 17 November 2016; and

(c)    the Deed Poll (Remaining Obligors) made by the Second Plaintiffs, dated 30 December 2016.

“Moly-Cop Proceeds” means the proceeds paid to Financiers as a result of the sale of the Moly-Cop business as recorded in the Share Sale Agreement dated 4 November 2016 between Comsteel Pty Limited (administrators appointed), The ANI Corporation Pty Limited (administrators appointed); OneSteel Americas Holdings Pty Limited (administrators appointed); OneSteel US Investments 1 Pty Limited (administrators appointed); OneSteel US Investments 2 Pty Limited (administrators appointed) and AMC US Acquireco, Inc; AMC Aus Acquireco Pty Limited; AIP MC Holdings Ltd and 1095038 BC LTD.

2    The appellant’s stated basis for this appeal is that the trial judge made errors in the construction of certain contractual documents relied upon by the third respondent and other lenders and noteholders represented by the third respondent (collectively, the ‘Financiers’). These errors were said to have led the trial judge to answer “Yes” in respect of both parts of the question raised for determination.

3    Before setting out the procedural background to this proceeding, a number of things should be noted by way of further introduction.

4    First, while ostensibly these proceedings involved three separate sets of respondents, the third respondent was the appellant’s primary opponent. In effect, the third respondent has represented the interests of the first and second respondents and, at both first instance and on this appeal, has made submissions on their behalf.

5    Second, at the hearing of this appeal on 23 May 2018, this Court made orders by consent to substitute the then listed appellant, Epic Energy South Australia Pty Ltd (‘Epic’), with Rexel Electrical Supplies Pty Limited (‘Rexel’) as the appellant in this proceeding. As Epic did at first instance, Rexel now serves as the representative unsecured creditor in this appeal. The underlying reasons for the substitution of Epic with Rexel were commercial in nature and are not relevant to this appeal.

6    Third, during the course of the hearing of this appeal, new issues emerged from the debate between counsel which were not addressed at first instance by the parties or the trial judge. In light of these new issues, the appellant and third respondent were invited to file with the Court supplementary written submissions to set out their respective positions on these points to aid the Court in its determination of the appeal. The supplementary submissions of the appellant and third respondent are dealt with later in these reasons.

PROCEDURAL BACKGROUND

7    The procedural background that follows is adapted from [1]-[8] of the primary judgment.

8    The first respondents (who are partners of KordaMentha) (the ‘Administrators’) are the joint and several administrators of deeds of company arrangement (‘DOCA’) executed by the second respondents on 4 November 2016. The second respondents comprise the Arrium group of companies (the ‘Arrium Group’) which went into voluntary administration on 7 April 2016. From 12 April 2016 to 4 November 2016, the first respondents were the joint and several administrators of the second respondents.

9    Rexel, as the replacement appellant, is one of approximately 4,000 general creditors of the Arrium Group. After Epic was substituted with Rexel by this Court’s order on 23 May 2018, Rexel was appointed to represent the interests of all unsecured creditors of the Arrium Group (other than the Financiers) under various unsecured syndicated facilities, bilateral facilities and note agreements. The third respondent, Massachusetts Mutual Life Insurance Company, was appointed to represent the interests of the Financiers in this proceeding at first instance and again on appeal.

10    As at 7 April 2016 – the date on which the Arrium Group went into administration – the Financiers were owed approximately $2.8 billion (the ‘Financier Debt’) by the Arrium Group under the unsecured syndicated facilities, bilateral facilities and note agreements (the ‘Subject Finance Documents’).

11    At the time the Arrium Group went into administration, the broader group of Arrium companies also included a number of indirect subsidiaries that were not placed into administration. Some of those companies not placed into administration carried on a mining consumables business known as ‘Moly-Cop’ (the ‘Moly-Cop Entities’), and some of the Moly‑Cop Entities had guaranteed the Financier Debt by way of ‘whole monies’ guarantees under two deeds of guarantee (the ‘Group Guarantees’).

12    On 4 November 2016, the first respondents (in their capacity as the Administrators of the Arrium Group) executed a contract for the sale of a number of the Moly‑Cop Entities (the ‘Moly-Cop Sale Entities’) for US$1.23 billion (the ‘Moly-Cop Transaction’). Upon completion of the Moly-Cop Transaction on 3 January 2017, the Administrators distributed US$1.024 billion of the net transaction proceeds (approximately A$1.4 billion) (the ‘Moly-Cop Proceeds’) to the Financiers with respect to the Group Guarantees.

13    The Financiers lodged proofs of debt and, subject to the Court’s direction, the Administrators intended to accept those proofs of debt for the full amount owing to them (ie the whole of the Financier Debt), without making a deduction for the amounts received by them as a portion of the Moly‑Cop Proceeds. A group of unsecured creditors, which were then represented by Epic (now Rexel), objected to the Administrators accepting the Financiers’ proofs of debt without making that deduction.

14    At first instance, the first and second respondents, as plaintiffs, sought an order pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) (Sch 2 to the Corporations Act 2001 (Cth) (the ‘Corporations Act’)) that the Administrators were justified in admitting the Financiers’ proofs of debt without deducting the value of any partial repayment made to the Financiers in respect of the Group Guarantees. While the first and second respondents sought that order from the trial judge on the basis of the rule against double proofs in insolvency, the Concise Statement filed by the Financiers also put into issue whether the Administrators were contractually bound to admit the Financiers’ proofs of debt in full without deducting the Moly-Cop Proceeds. The application of the respondents formed the basis for the question set out at [1] of these reasons that was asked of and answered in the affirmative by the trial judge.

15    Epic, the then contradictor on the question, submitted that the answer should be “No”. The Administrators and the Arrium Group did not make submissions directly on the question, instead stating that it was their contention that the Financiers’ construction of the contractual documents in question was wholly consistent with the parties’ rights and obligations under general law based on the rule against double proofs in insolvency.

FACTUAL BACKGROUND

16    The following factual background is adapted from [10] of the primary judgment, which was in turn taken by the trial judge from the affidavit of Mr Mark Korda, a partner of KordaMentha.

17    The appointment of administrators to the Arrium Group on 7 April 2016 constituted an event of default under the Subject Finance Documents between companies in the Arrium Group and the Financiers. As a result, the Financier Debt became immediately due and payable, and the Financiers had the right to demand repayment of the Financier Debt from the Moly-Cop Entities which were guarantors under the Group Guarantees. As at 7 April 2016, the total Financier Debt was approximately $2.8 billion, and exceeded the enterprise value of the Moly-Cop business.

18    In order to facilitate an orderly sale of the Moly-Cop business, the Administrators and the Moly-Cop Entities sought forbearance from the Financiers from enforcing their rights under the Group Guarantees. In return for this forbearance, the Financiers required the proceeds from the sale of any of the Moly-Cop Entities to be allocated to the Financiers in respect of the Financier Debt. The parties executed a suite of contractual documents, pursuant to which the Financiers agreed to the forbearance and gave the consents and releases required to implement the realisation of the Moly-Cop Sale Entities free of the Financiers’ claims. These contractual documents included an override deed (the ‘Override Deed’), a required consent report (the ‘Required Consent Report’) and a deed poll (the ‘Deed Poll’), collectively referred to as the ‘Documents’.

19    In accordance with the contractual requirements, US$1.024 billion of the net proceeds was applied in partial repayment of the Financier Debt and on 3 December 2016, two deeds of release were executed under which each Financier released and discharged the Moly-Cop Sale Entities from all claims and obligations arising under or in connection with the Subject Finance Documents. Twenty-two Arrium Group entities remained guarantors of the Financier Debt following the sale of the Moly-Cop Sale Entities.

RELEVANT DOCUMENTS

20    The following summaries of the Documents are adapted from [11]-[29] of the primary judgment.

Override Deed

21    The Override Deed contained the procedure for obtaining the consents and releases from the Financiers which were required to implement the sale of the Moly-Cop Sale Entities free of the Financiers’ claims. It also contained the procedure for the distribution of the Moly-Cop Proceeds amongst the Financiers.

22    By cl 1.5, the parent company of the Arrium Group was appointed the agent of every ‘Obligor’, a term which included the guarantors under the Group Guarantees, to execute on their behalf a range of documents in respect of or in connection with the ‘Approved Transaction’.

23    Clause 3.1(a) relevantly provided that cll 3 to 8 of the Override Deed prevailed over the Subject Finance Documents and Group Guarantees to the extent of any inconsistency.

24    Clause 3.2 was headed ‘Guarantees and obligations to continue’. Clause 3.2(a) contained confirmation by the Obligors that their guarantees and obligations under the Subject Finance Documents and Group Guarantees continued. Clause 3.2(b) contained an acknowledgement that cl 3.2(a) ceased to apply where an Obligor was released to give effect to the Approved Transaction. Clause 3.2(c) contained an acknowledgement that the Override Deed contemplated the potential release of the Obligors to give effect to Approved Transactions. The definition of ‘Approved Transaction’ relevantly included the sale of the Moly-Cop Sale Entities.

25    Clause 3.2(d) was one of the key clauses relevant to the question of construction. It provided:

At each Consent Effective Time, the Remaining Obligors (other than the Nominated Released Obligors) acknowledge and agree that, notwithstanding any amendments, variations, waivers, releases or consents granted by the Financiers pursuant to this document (including the release of the Nominated Released Obligors):

(i) until such time as the Financiers have received the total Amount Owing in full, the total Amount Owing remains outstanding;

(ii) each such Remaining Obligor is jointly and severally liable to pay the Amount Owing in accordance with the terms of the Subject Finance Documents; and

(iii) each such Remaining Obligor’s obligations under the Subject Finance Documents are not affected by the variation, waivers, releases or consents granted.

For the purposes of this clause 3.2(d) and in respect of any Consent Effective Time, each party acknowledges and agrees that each reference to the Remaining Obligors shall exclude those Nominated Released Obligors which will become Released Obligors at that Consent Effective Time.

26    ‘Remaining Obligors’ referred to the Arrium Group entities that remained guarantors of the Financier Debt. ‘Amount Owing’ was defined ‘in respect of a Financier’ and meant:

… its debts and claims (without duplication) under the Subject Finance Documents, which for the purposes of calculations and distributions under this document only, is the amount set out in the Global Commitments Register corresponding to the name of the Financier.

27    ‘Global Commitments Register’ (the ‘GCR’) was also defined and meant:

… the table set out in Schedule 3 (Global Commitments Register), as amended in accordance with clauses 6.2(d)(i) (Updates to Global Commitments Register) and 6.3(c)(ii) (Disagreements as to Amounts Owing).

28    The relevant table referred to was dated as at 7 April 2016 – the same date that the Arrium Group went into administration – and it set out the name of each Financier and the Amount Owing in respect of each Financier as at 7 April 2016.

29    Clause 3.2(e) of the Override Deed related to the Deed Poll which was another of the Documents at issue in this proceeding. Clause 3.2(e) of the Override Deed provided:

On each Approval Date in respect of a Consent Request which attaches a Required Consent Report (which contemplates the release of a Nominated Released Obligor), each Remaining Obligor (other than those Nominated Released Obligors) must deliver to the Global Agent a deed poll in favour of the Financiers confirming paragraph (d) above. The Global Agent will hold the deeds poll in escrow to be released on the Consent Effective Time at which those Nominated Released Obligors are released in accordance with the terms of this document.

30    Clause 6 of the Override Deed was headed ‘Calculation of Amount Owing’. Clause 6.2, headed ‘Global Commitments Register’, was another key clause relevant to the question of construction. It provided as follows:

(a) The Amount Owing of each Financier as of the Relevant Date is set forth in the Global Commitments Register in Schedule 3 as at the date of this document, as amended in accordance with clause 6.2(b).

(b) On or before 29 September 2016, the Global Agent must issue a Global Commitments Register confirming the Amount Owing of each Financier as of the Relevant Date, as advised by the Agent and the Financiers. The parties agree that absent manifest error, the Global Commitments Register as updated under this clause 6.2(b) amends Schedule 3 (Global Commitments Register) with effect on and from the date of this document.

(c) The Amount Owing of each Financier shall be updated in accordance with clauses 6.2(d) (Global Commitments Register) and 6.3 (Disagreements as to Amounts Owing) to reflect increases in accrued interest, fees, costs and expenses in accordance with the terms of the Subject Finance Documents.

(d) On each Record Date commencing on and from 30 September 2016, the Global Agent must:

(i) update the Global Commitments Register for each Financier to reflect:

(A) the Amount Owing as at that Record Date;

…

(e) The parties agree that absent manifest error, the Global Commitments Register, as updated under clauses 6.2(d)(i) and 6.3(c)(ii) amends Schedule 3 (Global Commitments Register), with effect on and from the most recent Record Date.

31    ‘Relevant Date’ was defined as 7 April 2016, being the date that the Arrium Group went into administration. ‘Record Date’ was defined as the last business day of each calendar month, and in the case of a ‘Proceeds Distribution Notice’, as the date of that Proceeds Distribution Notice. A ‘Proceeds Distribution Notice’ referred to the notice that the National Australia Bank, as ‘Global Agent’ for the Financiers, was required to give the Financiers and the Arrium Group on receiving the Moly-Cop Proceeds, advising that the proceeds would be distributed to the Financiers in accordance with cl 5 of the Override Deed.

32    Under subcl 5(b)(i)(B), the proceeds were required to be distributed ‘pro rata’ to the Financiers, and the Global Agent was entitled to rely on the GCR in determining, calculating and making the distribution. Relevantly, ‘pro rata’ meant ‘in the proportion that a Financier’s share of the Amount Owing bears to the total Amount Owing of all of the Financiers’.

33    Finally, and significantly, cl 7.2 of the Override Deed provided as follows:

Administrators, Appointment Entities and Obligors acknowledgment

The Administrators, Appointment Entities and Obligors acknowledge, notwithstanding that the Amount Owing for the purposes of voting on a Consent Request will be determined at the most recent Record Date occurring immediately prior to the Consent Commencement Date:

(a) the Financiers do not compromise their debts or claims under the Subject Finance Documents; and

(b) interest, fees costs and expenses continue to accrue under the Subject Finance Documents in accordance with their terms.

Required Consent Report

34    Before the Moly-Cop business could be sold, cl 4.3 of the Override Deed required the Administrators to prepare a ‘required consent report’ explaining the proposed transaction and to seek the consent of a committee of Financiers to proceed with the proposed transaction. On 17 November 2016, a required consent report in respect of the proposed sale of the Moly-Cop Sale Entities was provided by the Administrators to the Financiers.

35    The Required Consent Report was executed as a deed poll. As per the requirements of cl 4.3 of the Override Deed, it was in the form of Sch 11 of the Override Deed but also contained an additional clause, which relevantly contained the following acknowledgement:

(a) The Administrators, the Appointment Entities and the Appointment Obligors acknowledge that:

(i) …

(ii) …

(iii) any proceeds or distributions received by the Financiers in connection with the Proposed Transaction will not prejudice their right to prove for the Amount Owing as of the Relevant Date or receive distributions under the DOCAs.

36    ‘Relevant Date’ was defined as 7 April 2016 (as per the definition of the same term in the Override Deed) and ‘the DOCAs’ was a reference to the two DOCA entered into on 4 November 2016, specifically a distribution DOCA (‘Distribution DOCA’) and a transaction support DOCA.

37    By executing the Required Consent Report on 17 November 2016, the committee of Financiers gave its consent to the sale of the Moly-Cop Sale Entities.

Deed Poll

38    On 30 December 2016, the Administrators entered into two deeds of release of the Group Guarantees under which each of the Financiers released and discharged the Moly-Cop Sale Entities from all claims in connection with the Subject Finance Documents.

39    Also on 30 December 2016, the Administrators entered into the Deed Poll required by cl 3.2(e) of the Override Deed. Under the Deed Poll, each Remaining Obligor (ie Obligors under the Group Guarantees other than the Moly-Cop Sale Entities) acknowledged that the proceeds of the Moly-Cop Transaction were insufficient ‘to discharge the Amount Owing in full’ and that until such time as the Financiers received the ‘total Amount Owing in full’, the total Amount Owing remained outstanding, consistent with the terms of cl 3.2(d) of the Override Deed.

40    Clause 3(a) of the Deed Poll was the key operative provision:

(a) At the Transaction Implementation Date (as defined in the Required Consent Report), each Remaining Obligor acknowledges and agrees that, notwithstanding any amendment, variation, waiver, release or consent granted by the Financiers pursuant to the Required Consent Report:

(i) the Proceeds from the Proposed Transaction (as defined in the Required Consent Report) being paid to the Global Agent are insufficient to discharge the Amount Owing in full;

(ii) until such time as the Financiers have received the total Amount Owing in full, the total Amount Owing remains outstanding;

(iii) each such Remaining Obligor is jointly and severally liable to pay the Amount Owing in accordance with the terms of the Subject Finance Documents; and

(iv) each such Remaining Obligor’s obligations under the Subject Finance Documents are not affected by the variation, waivers, releases or consents granted.

Distribution DOCA

41    Though not one of the three Documents at issue in this proceeding, the Distribution DOCA in respect of the Arrium Group dated 4 November 2016 requires mention. Specifically, cll 18 and 19 included the following relevant provisions:

18    Proofs of Debt

18.1    Proofs of Debt

(a) The Deed Administrators may call for Arrium Group Creditors’ written proofs of debt in respect of their Arrium Group Claims (Proofs of Debt) at such times as they deem appropriate.

(b) Arrium Group Claims which comprise penalties or fines imposed by a court in respect of an offence against a law are not admissible to proof.

(c) Within 21 Business Days of the Deed Administrators’ call for Proofs of Debt, Arrium Group Creditors must lodge their Proofs of Debt with the Deed Administrators (Bar Date).

(d) As soon as reasonably practicable after the date for lodgement of Proofs of Debt, the Deed Administrators will assess the Proofs of Debt and determine whether to admit each Proof of Debt and if so, the quantum to be attributed to each Proof of Debt.

(e) Within 7 Business Days of making their determination, the Deed Administrators will notify each Arrium Group Creditor in writing to the address provided in the Proof of Debt or any email address notified to the Deed Administrators, of their determination in respect of the relevant Proof of Debt.

(f) Where the Deed Administrators reject all or part of a Proof of Debt, the relevant Arrium Group Creditor may appeal to the Court in respect of the Deed Administrators’ rejection within the time allowed for appeals in Regulation 5.6.54.

(g) If:

(i) an Arrium Group Creditor’s Proof of Debt has not been received by the Deed Administrators before the declaration of a dividend; and

(ii) the Proof of Debt is subsequently admitted,

then the Arrium Group Creditor is entitled to be paid dividends that the Arrium Group Creditor has failed to receive out of any available money for the time being in the Arrium Distribution Fund, before that money is applied to the payment of a further dividend.

(h) An Arrium Group Creditor is not entitled to disturb the distribution of a dividend declared before the Arrium Group Creditor’s Proof of Debt was received by the Deed Administrators.

18.2    No double proof

(a)    In the event that any Claim is novated by the Deed Administrators or the Other Deed Administrators from AdminCo to another Arrium Group Company, such a novation will not create a new Claim or Arrium Group Claim.

(b)    The rule against double proof will apply in respect the Arrium Group Companies in aggregate, so that a Creditor proves only once against the Arrium Distribution Fund in respect of a Claim against a primary obligor but may not prove in respect of a Claim guaranteed by a co-guarantor.

(c)    The rule against double proof will apply in respect the AdminCo such that a Creditor will not have any Entitlement in respect of any Claim arising from the partial repayment of a debt or obligation owing by AdminCo which has been guaranteed by the Creditor.

…

19    Entitlements and Payment from the Arrium Distribution Fund

19.1    Entitlement

(a) Notwithstanding any other provision of this DOCA or the Other Arrium DOCAs, each Arrium Group Creditor’s Entitlements are to be adjudicated by the Deed Administrators as at the Appointment Date, and, regardless of whether the Arrium Group Claim has been subsequently novated, released or extinguished by:

(i) the Deed Administrators pursuant to this DOCA or the Other Arrium DOCAs; or

(ii) any other party or parties, provided that the Deed Administrators determine to exercise their power under this clause to allow the Arrium Group Claim to remain provable notwithstanding its novation, release or extinguishment.

(b) Each Arrium Group Creditor will be entitled to receive distributions in respect of its Admitted Claim from the Arrium Distribution Fund in accordance with the order of priority in clause 19.2.

(c) Arrium Group Creditors are only entitled to receive such distributions and amounts as are declared by the Deed Administrators and provided for in this DOCA and the Other Arrium DOCAs.

(d) The Deed Administrators must pay Arrium Group Creditors their Entitlements under this DOCA as soon as reasonably practicable, including by issuing interim Dividends whenever considered appropriate by the Deed Administrators in their sole and absolute discretion.

19.2    The Waterfall

The Deed Administrators will distribute the Arrium Distribution Fund in the following order of priority (Waterfall).

(a) subject to section 561 of the Act (which is incorporated into this DOCA with any necessary changes), the Admitted Claims of Arrium Group Secured Creditors to the extent of their “security interest” (as that term is defined in the Act) in any of the assets or undertaking of any of the Arrium Group Companies which secures their Admitted Claim;

(b) next, the expenses properly incurred by the Voluntary Administrators, Other Voluntary Administrators, Deed Administrators and Other Deed Administrators in preserving, realising or getting in property or the Arrium Group Companies, or in carrying on the businesses of the Arrium Group Companies;

(c) next, the debts for which paragraph 443D(a) or (aa) and subject to section 443E would entitle an administrator of any of the Arrium Group Companies to be indemnified (even if the administration has ended), except expenses covered by paragraph (b);

(d) next, the exercise by the Deed Administrators of the lien provided for in clause 10.3 or by the Other Deed Administrators of lien provided for in clause 10.4 to secure any right of indemnity conferred by clause 10.1 or otherwise conferred by law;

(e) next, the remuneration of the Voluntary Administrators, Other Voluntary Administrators, Deed Administrators and other Deed Administrators as approved from time to time;

(f) next, Admitted Claims comprising Arrium Group Employee Priority Claims, which are to be adjudicated and paid in accordance with sections 556, 560 and 561 of the Act subject to any adjustment determined by the Deed Administrators, as required under clause 19.3(a);

(g) next, the Admitted Claims of Arrium Group Unsecured Creditors rateably subject to any adjustment determined by the Deed Administrators, as required under clause 19.3(a);

(h) next, payment of interest on Admitted Claims;

(i) next, the Admitted Claims of Members of the Arrium Group Companies to the extent that their Admitted Claims are subordinated in accordance with section 563A of the Act (which pursuant to clause 16.5 is incorporated into this DOCA with any necessary changes).

42    ‘Arrium Group Claim’ was relevantly defined to mean a debt or claim against companies in the Arrium Group.

TRIAL JUDGE’S REASONING

43    The trial judge preferred the Financiers’ construction of each of the Documents, and in so doing, accepted the Financiers’ contention that receipt of the Moly-Cop Proceeds did not reduce the Amount Owing recorded against each Financier in the GCR, and did not reduce the amount in respect of which the Financiers were entitled to lodge proofs of debt.

Override Deed

44    The trial judge found that the Financiers’ construction of the Override Deed was to be preferred for a number of reasons.

45    First, her Honour found that Epic’s interpretation of ‘Amount Owing’ was not supported by a textual analysis of the Override Deed. Although the debts and claims under the Subject Finance Documents provided the source for the calculation of the amounts set out in the GCR, the combination of the definitions of ‘Amount Owing’, ‘Global Commitments Register’ and ‘Relevant Date’, and cll 6.2(a) and (b) made it clear to the trial judge that ‘Amount Owing’ meant the debts and claims as at 7 April 2016.

46    Second, her Honour found that the express terms of cl 6.2(c) supported the Financiers’ construction of the Override Deed and were not otherwise adequately explained by Epic. Her Honour reasoned that if, as her Honour had found, the definition of ‘Amount Owing’ referred to the debts and claims as at 7 April 2016, cl 6.2 would on Epic’s construction be otiose because the terms of the Subject Finance Documents would of their own force operate to require the additional amounts in accrued interest, fees, costs and expenses to be included in the Amount Owing in respect of each Financier. The trial judge also found that the Financiers’ interpretation of cl 6.2(c) gave an internal coherence to cl 6.2 as a whole.

47    Third, the trial judge accepted the Financiers’ submissions that the Remaining Obligors’ acknowledgement in cl 3.2(d) was given in the context of the Financiers’ impending receipt of proceeds from what was then the proposed sale of the Moly-Cop Sale Entities. This, her Honour concluded, told against Epic’s construction that each Financier’s Amount Owing was to be reduced by proceeds that the Financier received from the Moly-Cop Transaction, or indeed any other Approved Transaction.

48    Fourth, her Honour dismissed Epic’s submission in respect of cl 5 and the ‘Turnover Amounts’ it referred to on the basis that the Turnover Amounts did not form part of the calculation of the amounts in the GCR, and unlike proceeds received from Approved Transactions (such as the Moly-Cop Transaction), the Override Deed contained a specific provision to the effect that Turnover Amounts would be taken to reduce each Financier’s Amount Owing.

Required Consent Report

49    The trial judge also favoured the Financiers’ construction of subcl 5.1(a)(iii) of the Required Consent Report.

50    Her Honour held that the effect of subcl 5.1(a)(iii) was to confirm that the receipt of the Moly-Cop Proceeds by the Financiers did not reduce the amount in respect of which the Financiers were entitled to lodge a proof of debt. Her Honour also held that, contrary to Epic’s submissions, subcl 5.1(a)(iii) was consistent with cl 19.1 of the Distribution DOCA insofar as both provided that creditor entitlements were to be adjudicated as at 7 April 2016.

Deed Poll

51    In respect of the Deed Poll, her Honour held that ‘Amount Owing’, as used in cl 3 of the Deed Poll, was to be construed conformably with the use of the same term in the Override Deed.

Interpretation not ‘uncommercial’

52    Finally, the trial judge rejected the argument advanced by Epic that the net result of the Documents entered into was ‘grossly uncommercial’. On her Honour’s account, in order for the Moly-Cop Transaction to proceed, it was necessary to obtain the release of the Financiers’ of certain of the Moly-Cop Sale Entities from their obligations under the Group Guarantees, and that as a condition to this release the Financiers were able to leverage their advantageous bargaining position to secure favourable commercial terms in the administration of the Arrium Group. Her Honour held at [51] of the primary judgment that this construction did not ‘[make] commercial nonsense or [cause] commercial inconvenience in a way that [cast] doubt on whether the parties intended the [Documents] to have the meaning conveyed by the textual analysis’.

PRIMARY SUBMISSIONS

The appellant

53    The overarching contention of the appellant was that while the trial judge correctly identified the relevant legal principles, her Honour incorrectly applied those principles to the construction of the Override Deed. These errors also led to consequential errors in the construction of other Documents relied upon by the Financiers. This meant that the trial judge answered both parts of the question raised for determination “Yes”, when on the submission of the appellant, both should have been answered “No”.

Override Deed

54    The appellant contended that the Override Deed was executed in the factual context of, and in the parties’ contemplation of, a plan to realise the value of the Moly-Cop Entities, which at the time the Arrium Group entered into administration operated a profitable mining consumables business.

55    According to the appellant, the purpose and effect of the Override Deed was twofold. First, to effect the permissions and waivers required to sell the Moly-Cop Sale Entities. And second, to provide for the distribution of the Moly-Cop Proceeds. The Override Deed also imposed ‘Override Terms’ under cl 3.1. The Override Terms were contractual terms which, on the appellant’s construction, amended, varied or supplemented the Subject Finance Documents under which monies were advanced to the Arrium Group by its creditors (including the parties to this proceeding), and which prevailed in the event of inconsistency with the Subject Finance Documents.

56    The appellant drew the Court’s attention to a number of clauses in the Override Deed in support of its position.

57    Purportedly, cl 4 was to make way for the sale process of the Moly-Cop Sale Entities as an Approved Transaction by effecting certain consents and waivers that needed to be obtained from the Financiers in order for the transaction to proceed. It did this by establishing a regime for approval of a prospective Approved Transaction whereby the administrators would deliver a ‘required consent report’ to a committee of Financiers describing the proposed transaction, and then the committee would consent to the proposed transaction on behalf of all of the Financiers.

58    Clause 5 was described as dealing with the payment and distribution of proceeds from Approved Transactions. Under cl 5(a), the parties agreed that proceeds from Approved Transactions that were payable to the Financiers would be paid in accordance with the ‘Proceeds Allocation Schedule’ attached as a schedule to the Override Deed, and cl 5(b). Under cl 5(b), proceeds would either be distributed by the Global Agent ‘in accordance with the Proceeds Allocation Schedule’, or if the Global Agent was instructed by a majority of the Financiers to do so, the Global Agent would ‘refrain from distributing’ the Approved Transaction proceeds to the Financiers. If so instructed, the Global Agent was required to deposit the proceeds in an ‘interest-bearing suspense account’ until further instructed to distribute the proceeds and any accrued interest to the Financiers on a pro rata basis.

59    Clause 5 was also described as making provision for:

(1)    recoveries by Financiers outside the regime established by the Override Deed – the appellant emphasised that any recoveries made by a Financier outside the Override Deed’s regime were deducted from that Financier’s ‘claims and debts’ for the purposes of distributions made under cl 5; and

(2)    calculating the moneys owed to Financiers – the appellant characterised these provisions as being in contemplation of the fact that the moneys owed to Financiers would change over the period in which the Moly-Cop Entities would be put up for sale.

Definition of ‘Amount Owing’

60    A key part of the contractual mechanism used to calculate and track changes over time in the quantum of moneys owed to Financiers was the term ‘Amount Owing’. On the appellant’s submission, the definition of ‘Amount Owing’ had two aspects. First, the amount owing pursuant to each Subject Finance Document. And second, the amount set out in the GCR which was in turn defined as ‘the table set out in Schedule 3 … as amended in accordance with clauses 6.2(d)(i) … and 6.3(c)(ii)’.

61    The appellant put forward the following interpretation of cl 6:

Under cl 6.2(b) a baseline is created: prior to entry into the Override Deed the Global Agent issues a draft GCR “confirming” the Amount Owing to each Financier as at the Relevant Date (7 April 2016), as advised by each Financier. Clause 6.2(a) then has operation. It provides that “the Amount Owing of each Financier as of the Relevant Date is set forth in the [GCR] as at the date of this document, as amended in accordance with clause 6.2(b)”. Clause 6.2(a) has two consequences. First, it deems the Amount Owing to be the amount in the GCR on commencement of the Override Deed. Secondly, it provides that the Amount Owing will change to reflect amendments to the GCR made under “clause 6.2(b)”. (The reference to clause 6.2(b) is obviously a drafting error; cl 6.2(d) (which deals with amendments to the GCR) is plainly the intended reference.)

Pursuant to clause 6.2(d) at the end of each month, and on any date when Proceeds are distributed (Record Date), the Global Agent must update the GCR for each Financier. The updated GCR is sent to each Financier.

By cl 6.2(e) (absent manifest error) the updated document is deemed to be the GCR with effect from the most recent Record Date and the Amount Owing is the amount set out in the GCR, as “updated” from time to time.

Clause 6.2(c) facilitates increases in the Amount Owing to reflect accrued interest, fees, costs and expenses payable under the Subject Finance Documents.

62    The appellant submitted that, as shown by the provisions summarised above, the regime established by the Override Deed was intended to operate flexibly in contemplation of the possibility of the Moly-Cop Entities being sold in more than one transaction.

Clause 3.2

63    In response to the Financiers’ submissions at first instance, which were largely accepted by the trial judge, the appellant focused particular attention on cl 3.2(d) and the use of the defined term ‘Amount Owing’ in that clause.

64    The appellant argued that subcl 3.2(d)(i), and in particular the different drafting of the phrases ‘the total Amount Owing in full’ and ‘the total Amount Owing’, supported the construction which it put to the trial judge at first instance. Specifically, that the subclause contemplated that the Amount Owing (as shown in the GCR) would vary from time to time and be updated accordingly. For instance, the Amount Owing in respect of each Financier might increase from time to time as interest and other charges on the Amount Owing accrued over time. Conversely, the Amount Owing in respect of a Financier might decrease as and when that Financier received distributions of proceeds from an Approved Transaction, like the Moly-Cop Transaction. The appellant contrasted this with the Financiers’ interpretation of the same provision, which on the appellant’s submission, drew no meaningful distinction between the drafting of the phrases ‘the total Amount Owing in full’ and ‘the total Amount Owing’.

65    The appellant further argued that its interpretation of the clause as a whole stood in contrast to that of the Financiers.

66    It was generally accepted by both the appellant and the Financiers that subcll 3.2(d)(ii) and (iii) served a reasonably obvious and clear purpose to preserve the effect of the Group Guarantees held by the Financiers. This was considered especially important in circumstances where, upon the receipt of any proceeds, those Group Guarantees might otherwise have been discharged by operation of law. This was based on the view that where an arrangement is reached with either a principal debtor or with a co-surety which has the effect of diminishing the obligation of that principal debtor or co-surety at law, that will typically release the guarantee.

67    However, the appellant sought to highlight the different views adopted by each party in respect of subcl 3.2(d)(i), as opposed to subcll (ii) and (iii) referred to above.

68    The appellant took the view that subcl 3.2(d)(i) served a purpose similar to its accompanying subclauses, that is, to ensure (with a ‘belts and braces’ mentality) that the benefit of the Group Guarantees was preserved and not lost by operation of law. It was argued that drafting the entire clause with a clear and cohesive purpose would have made sense in the context.

69    In contrast, the Financiers took the view that subcl 3.2(d)(i) served to replicate the common law rule in Westpac Banking Corporation v Gollin & Co Ltd (in liq) [1988] VR 397 (‘Westpac v Gollin’): that a creditor who proves in the bankruptcy of their debtor need not deduct from the amount of their proof any sum paid to them by a guarantor under a whole moneys guarantee so long as any part of the guaranteed debt remains unpaid by their debtor.

70    On the Financier’s view, the effect of subcl 3.2(d)(i) was to make clear that, consistent with the rule in Westpac v Gollin, any moneys received by the Financiers on the basis of the Group Guarantees would not adversely affect the amount for which the Financiers could lodge proofs of debt.

71    The appellant disagreed with the Financiers’ construction. It argued that the effect of subcl 3.2(d)(i) was solely to preserve the Group Guarantees by using express language to make clear that, notwithstanding any potential partial repayment of the Amount Owing to each Financier, the Group Guarantees would remain on foot. This, the appellant said, was consistent with the ‘preservation flavour’ of subcll 3.2(d)(ii) and (iii).

72    In oral submissions, the appellant also contended that the Financiers’ construction of the Override Deed meant that the overall purpose of the document would be so overwhelming in favour of the Financiers such that it would be ‘uncommercial’. It was argued that the constructional choice was between the Financiers’ interpretation, which would see them take the entire benefit of the Moly-Cop Proceeds, and the appellant’s interpretation, which would benefit the entire pool of unsecured creditors (without discriminating between the Financier creditors and the non-Financier creditors, all of whom were unsecured). Further, if the Financiers’ interpretation of the Override Deed was adopted by the Court, there would be:

… absolutely nothing in the [Override Deed] that would, for example … have stopped [the Financiers] from getting 90 cents in the dollar from [the Moly-Cop Proceeds] and then proving for 100 cents in the distribution from [the] Arrium Group and getting, perhaps, another 30 cents.

73    The appellant concluded that the absence of a cap on the amount that could be recovered by the Financiers told against the construction advanced by the Financiers and adopted by the trial judge at first instance.

Clause 6

74    In a similar vein to the submissions made in respect of cl 3.2, the appellant argued that cl 6 of the Override Deed was also drafted in contemplation of the fact that the Amount Owing recorded against each Financier’s name in the GCR could be, from time to time, upwardly or downwardly revised to take account of adjustments to the moneys owed under the Subject Finance Documents.

75    On the appellant’s construction of cl 6.2(d), on each Record Date (as defined in cl 1.1) the Global Agent was, in respect of each Financier listed in the GCR, required to:

(1)    upwardly revise the Amount Owing ‘to reflect increases in accrued interest, fees, costs and expenses’ in accordance with the Subject Finance Documents (as per cl 6.2(c)); and

(2)    downwardly revise the Amount Owing to reflect any Approved Transaction proceeds that were received by the Financier which, on the appellant’s submission, would reduce the Amount Owing for which that Financier could later submit proofs.

76    In support of its argument, the appellant pointed to cl 5 of the Override Deed which dealt with the payment and distribution of Approved Transaction proceeds. It was argued that cl 5 created a mechanism by which monies recovered directly by a Financier be applied so as to reduce that Financier’s ‘claims and debts’, where the phrase ‘claims and debts’ was also used in the definition of ‘Amount Owing’. This, on the appellant’s submission, meant that cl 6.2(c) was given some work to do independent from the terms of cl 6.2(d). In other words, the purpose of the Global Agent’s contractual power to update the GCR under cl 6.2(d) was to accommodate any revisions to each individual Financier’s Amount Owing that may be required by cl 5 due to Approved Transaction proceeds having been recovered directly by a Financier. If the Court accepted that cl 6.2(d) created a right in the Global Agent to ‘update the Global Commitments Register’ beyond merely accounting only for ‘increases in accrued interest, fees, costs and expenses’ as provided for under cl 6.2(c) – and thus rejected the Financiers’ submissions to the contrary – it would follow that cl 6.2(d) would support a construction of the Override Deed that would allow for the Amount Owing to each Financier to be downwardly revised upon the receipt of the Moly-Cop Proceeds.

77    In oral submissions, the appellant highlighted another aspect of drafting which, on its submission, further suggested that any Approved Transaction proceeds received and distributed by the Global Agent under cl 5 were intended to be applied so as to reduce the each recipient Financier’s Amount Owing. It was submitted that subcl 5(b)(i) created a waterfall arrangement where upon a Distribution Date, the Global Agent was required to distribute any Approved Transaction proceeds first to ‘Replacement Facility Lenders’ (which were a select group of Financiers that had entered into a special replacement facility arrangement with administrators early on in administration of the Arrium Group) on a pro rata basis and second to ‘the Financiers’, also on a pro rata basis.

78    It was suggested by the appellant that if it were accepted that the Override Deed was drafted in contemplation of multiple Approved Transactions, it would be absurd if the Replacement Facility Lenders were paid first under the waterfall arrangement each and every time an Approved Transaction took place. According to the appellant, this is what would occur if the proceeds distributed to each recipient Financier did not reduce the Amount Owing to each recipient Financier. This would create the potential for over-recovery by some creditors and simultaneous under-recovery by other creditors, which from the perspective of the appellant would not have been a logical commercial arrangement.

79    During the course of oral submissions, the appellant also drew the Court’s attention to the two methods by which distributions of Approved Transaction proceeds could be dealt with under the terms of cl 5(b):

(1)    under subcl 5(b)(i), proceeds received by the Global Agent would be distributed by it to each Financier; and

(2)    under subcl 5(b)(ii), proceeds received by the Global Agent would be held by it in an ‘interest-bearing suspense account’ if instructed to do so by a majority of Financiers until such time as that majority of Financiers instructs for the proceeds received (plus any interest accrued on those proceeds) to be distributed in the normal way.

80    The appellant argued that the second method of distributing intended to address a common law rule regarding receipt of funds from a guarantor in part discharge of the principal debtor’s debt. The appellant asserted that the rule held that where a creditor received funds from a guarantor, but that creditor does not want those funds to go towards part discharge of the principal debtor’s debt, the creditor may hold the funds received from the guarantor in a suspense account until the creditor executes its rights against the principal debtor. No citation was given for this rule in oral submissions.

81    It was argued that the existence of this mechanism provided further support for the appellant’s construction of the Override Deed. If, as per the submissions of the Financiers, there was no requirement to update the Amount Owing for proceeds received in respect of each Financier, there would be no need for such a mechanism. Accordingly, its existence was said to tell against the submissions of the Financiers that the Amount Owing never needed to be updated to reflect moneys received by Financiers as proceeds of Approved Transactions.

82    Finally, the appellant pointed to the dispute resolution mechanism in cl 6.3 of the Override Deed. The appellant asserted that if the Amount Owing in respect of each Financier could only be revised upwards to account for accrued interest and fees, then there would be no need for a complex dispute resolution mechanism of the type found in cl 5(b) of the Override Deed. This was cited as further evidence that the Financiers’ construction of the document should be rejected.

Required Consent Report

83    In its written submissions, the appellant referred to the conclusion drawn by the trial judge at [49] of the primary judgment that:

… the effect of cl 5.1(a)(iii) [of the Required Consent Report] was to confirm that the payment of the [Moly-Cop Proceeds] to the Financiers did not consequentially reduce the quantum of the amount in respect of which the Financiers were entitled to lodge a proof of debt.

84    On the appellant’s submission, the reasons given by the trial judge did not make clear whether her Honour concluded that the Required Consent Report operated as an instrument independent of the Override Deed or, on the contrary, that the Required Consent Report supported, by way of ‘confirm[ing]’, the position of the Override Deed (which, on her Honour’s findings, was to preserve the full amount of the Financiers’ debts notwithstanding their receipt of the Moly-Cop Proceeds).

85    On the appellant’s view, subcl 5(a)(iii) of the Required Consent Report, which refers to ‘the Amount Owing as of the Relevant Date’, merely served to make clear that the payment of the Moly-Cop Proceeds would not prejudice a Financier’s right to prove for the Amount Owing if they were indeed owed money on the Relevant Date (ie 7 April 2016). In other words, the appellant adopted a construction of this subclause to the effect that if a Financier is owed money as at the Relevant Date (meaning that the Financier’s name is recorded in the GCR), then the receipt of the Moly-Cop Proceeds will not prejudice that Financier’s right to prove for the Amount Owing, as adjusted (up or down) from time to time under the terms of the Override Deed.

Deed Poll

86    In written submissions, the appellant concluded its primary arguments by asserting that because the trial judge erred in the construction of the Override Deed, and because both documents were to be properly interpreted ‘conformably’, the Deed Poll was also infected by the same error made by the trial judge in respect of the Override Deed.

The Financiers

87    As noted above at [3] of these reasons, each of the Administrators, the Arrium Group, and the Financiers were, in effect, collectively represented on appeal by the third respondent. On behalf of each other respondent in the proceeding, the third respondent contended that both parts of the question raised for determination should be answered “Yes”, as per the conclusion of the trial judge.

88    The Administrators and the Arrium Group filed no substantive written submissions addressing the construction question and were content, at both first instance and on appeal, to rely on the third respondent’s submissions.

Override Deed

89    The Financiers’ key argument was that the phrases ‘total Amount Owing in full’ and ‘total Amount Owing’ in subcl 3.2(d)(i) should each be interpreted as a reference to the Amount Owing, unreduced by the proceeds of any Approved Transaction, such as the Moly-Cop Proceeds.

90    On the Financiers’ view, the Override Deed made provision both for Obligors that were to be sold as part of the voluntary administration, and for Obligors that were not to be sold as part of the voluntary administration. Clause 4 of the Override Deed related to the former and cl 3.2(d) related to the latter.

91    The Financiers argued that the effect of subcl 3.2(d)(i) was further confirmed and restated in later instruments executed by the parties, namely the Required Consent Report and the Deed Poll.

92    During the course of the Financiers’ oral submissions, arguments were also made in relation to the definition of ‘Amount Owing’. Here, the Financiers’ emphasised that the definition of Amount Owing (being ‘the amount set out in the [GCR] corresponding to the name of [each] Financier’) was qualified as being strictly for the purposes of calculations and distributions under the Override Deed only.

93    Put another way, the Amount Owing as recorded in the GCR was a matter only concerning the Financiers – it did not affect or touch on the rights of the Obligors. The Financiers submitted that the whole procedure set out in cl 6.2(b) – that is, the updating of the Amount Owing in respect of each Financiers on each Record Date – was for the sole purpose of keeping track of the number of votes held by each Financier on questions of whether to approve would-be Approved Transactions.

94    In support of this construction, counsel for the third respondent referred to the dispute resolution mechanism in cl 6.3. Counsel emphasised that the Obligors had no contractual right under that mechanism to dispute the amounts recorded in the GCR. It was suggested that if the provisions of the Override Deed had the meaning given to them by the appellant – namely, that the GCR served as a ‘point in time’ record of the amounts owed under the Subject Finance Documents, adjusted upwards and downwards as required by the circumstances – it would have made sense for there to be some right for the Obligors to challenge the amounts recorded in the GCR. Counsel for the third respondent submitted that the absence of such an express provision told against the construction advanced by the appellant.

Required Consent Report

95    The Financiers asserted that further support of their interpretation of the Override Deed was found in subcl 5.1(a)(iii) of the Required Consent Report, which stated:

5.1 Acknowledgments

(a) The Administrators, the Appointment Entities and the Appointment Obligors acknowledge that:

…

(iii) any proceeds or distributions received by the Financiers in connection with the Proposed Transaction will not prejudice their right to prove for the Amount Owing as of the Relevant Date or receive distributions under the DOCAs.

96    In that clause, ‘Proposed Transaction’ meant the sale of the Moly-Cop Sale Entities, and the terms Amount Owing and Relevant Date bore the same meaning given to those terms in the Override Deed.

97    The Financiers argued that the composite expression ‘Amount Owing as of the Relevant Date’ in that clause meant the debts and claims of a Financier (without duplication) under the Subject Finance Documents as at the Relevant Date. In other words, by subcl 5.1(a)(iii), the Administrators and others acknowledged that the proceeds or distributions to be received by the Financiers in connection with the sale of the Moly-Cop Sale Entities did not prejudice (ie did not affect adversely) the Financiers’ right to prove for the Amount Owing as at the Relevant Date. This, it was contended, supported the conclusions of the trial judge in answering in the affirmative both parts of the question raised for determination at first instance.

98    As noted above at [85] of these reasons, the appellant argued that this clause was aimed at ensuring that, if a Financier was owed an amount as at the Relevant Date, that Financier’s ability to prove for the Amount Owing (as adjusted up or down depending on the receipt of proceeds) would not be prejudiced. During the course of oral submissions, counsel for the third respondent challenged this interpretation. It was argued that such a construction was fanciful on the basis that the parties would not have used such express language in the Required Consent Report to fulfil such an ‘empty objective’.

Deed Poll

99    The Financiers also claimed support for their contended construction of the Documents by reference to the Deed Poll.

100    Pursuant to cl 3.2(e) of the Override Deed, on each ‘Approval Date’ (ie the date by which Financiers must either consent or not consent to a transaction described in a required consent report), each Remaining Obligor must deliver to the Global Agent a deed poll in favour of the Financiers confirming the acknowledgements given in cl 3.2(d) of the Override Deed. It is to be recalled that the deed poll concerning the Moly-Cop Transaction, being the Deed Poll, stated:

Acknowledgment and Agreement by Remaining Obligors

(a)    At the Transaction Implementation Date (as defined in the Required Consent Report), each Remaining Obligor acknowledges and agrees that, notwithstanding any amendment, variation, waiver, release or consent granted by the Financiers pursuant to the Required Consent Report:

(i)    the Proceeds from the Proposed Transaction (as defined in the Required Consent Report) being paid to the Global Agent are insufficient to discharge the Amount Owing in full;

(ii)    until such time as the Financiers have received the total Amount Owing in full, the total Amount Owing remains outstanding;

(iii)    each such Remaining Obligor is jointly and severally liable to pay the Amount Owing in accordance with the terms of the Subject Finance Documents; and

(iv)    each such Remaining Obligor’s obligations under the Subject Finance Documents are not affected by the variation, waivers, releases or consents granted.

101    The Financiers contended that, subcll (a)(i) and (ii) of the Deed Poll answered both parts of the question raised for determination at first instance in favour of the Financiers. First, the Moly-Cop Proceeds that were paid to the Global Agent for distribution to the Financiers were acknowledged as being insufficient to discharge the Amount Owing in full (that is, the debts and claims then owing under the Subject Finance Documents) (see subcl 3(a)(i)). And second, until such time as the Financiers have received the total Amount Owing in full (that is, the debts and claims under the Subject Finance Documents), the total Amount Owing remains outstanding (see subcl 3(a)(ii)).

102    The Financiers considered that these subclauses of the Deed Poll conclusively answered both parts of the question raised for determination in the affirmative.

Responding to the appellant’s submissions

103    The Financiers’ overarching critique of the appellant’s submissions was that they did not engage with the plain language of the relevant provisions in the Documents. The appellant’s primary submissions on each of the Documents were addressed by the Financiers in turn.

104    First, the Financiers considered the appellant’s submissions in respect of cll 3.2 and 6.2 of the Override Deed. The Financiers argued that cl 3.2 of the Override Deed had a wider operation than was contended by the appellant and that different subclauses of cl 3.2 dealt with different matters. On the Financiers’ analysis:

(1)    subcl (a) confirmed that each Obligor remains liable, notwithstanding the terms of the Override Deed;

(2)    subcl (b) carved out certain nominated Obligors from the operation of subcl (a) so that such nominated Obligors can be sold, free of the debts owed to Financiers, pursuant to the Approved Transaction process under cl 4.1;

(3)    subcl (c) provided for each Obligor’s acknowledgement that the Override Deed contemplates the potential release of Obligors and the novation of certain of the Amount Owing to give effect to Approved Transactions; and

(4)    subcl (d), with each of its three constituent subclauses worked as follows. Subclauses (ii) and (iii) avoid the problem arising from the obligations of guarantors (ie it preserves the operation of the Group Guarantees notwithstanding any part payment of debts owing), while subcl (i) serves a different purpose of identifying that the total Amount Owing remains outstanding, notwithstanding the receipt of proceeds. The Financiers added that the appellant failed to explain why subcl (i) would be required in the context of subcll (ii) and (iii), and that subsequent instruments entered into by the same parties (specifically, the Required Consent Report) restated that the Amount Owing as at the Relevant Date is not reduced by the Moly-Cop Proceeds.

105    Second, the Financiers challenged the appellant’s characterisation that cl 6 of the Override Deed and the GCR served to identify amounts owed by Obligors to the Financiers, and that therefore, the Amount Owing for each Financier needed to be updated upon that Financier’s receipt of proceeds from than Approved Transaction. On the Financiers’ submission, cl 6 and in particular cll 6.2(c) and (d), were concerned with the entitlements of the Financiers to the distribution of proceeds amongst themselves. It was argued that nowhere in cl 6, or anywhere in the Override Deed, was there any requirement that the GCR be ‘updated’ so as to reduce the Amount Owing. It was further submitted that cl 6 and the GCR were not intended to record the Amount Owing at any given time, but that rather, cll 6.2(a) and (b) determined the Amount Owing as at the Relevant Date, being the critical date for proof of debt purposes, and that the adjustments to the Amount Owing contemplated by cll 6.2(c) and (d) do not change the Amount Owing as at the Relevant Date.

106    Third, the Financiers dismissed the appellant’s contention that if the trial judge’s construction of the Override Deed was overturned, so too would her Honour’s construction of the Required Consent Report and the Deed Poll. The Financiers’ argued that both the Required Consent Report and the Deed Poll constituted independent deed polls that bound the entities that made them, irrespective of the terms of the Override Deed.

107    Fourth and finally, in the course of oral submissions, counsel for the third respondent briefly addressed a matter raised by the appellant in its notice of appeal, but not elaborated on in its primary written submissions. In short, ground 4 of the appellant’s notice of appeal challenged the finding of the trial judge that the Deed Poll operated in a manner inconsistent with cl 19.1 of the Distribution DOCA. On the appellant’s argument, because cl 6.2 of the Override Deed meant that the Amount Owing in respect of each Financier increased from time to time due to accruing interest, fees, costs and other expenses incurred after the Arrium Group went into administration, the Amount Owing in respect of each Financier included sums which were not due on that date. On this basis, it was asserted that contrary to the findings of the trial judge, the Deed Poll and the Distribution DOCA were not consistent on their terms.

108    In addressing the matter raised, the Financiers advanced a different interpretation of the trial judge’s findings. They argued that her Honour’s reasons were simply describing the fact that, as there was no subsequent novation, release or extinguishment of the Financier Debt, the proof of debt was put in by the Financiers as it was at 7 April 2016.

APPELLANT’S SUBMISSIONS IN REPLY

Clause 3.2

109    As noted above at [90] of these reasons, the Financiers contended that ‘the words to be construed in subcl 3.2(d)(i) [of the Override Deed] are ‘total Amount Owing in full’ and ‘total Amount Owing’, not ‘Amount Owing’ as a standalone expression’. On reply, the appellant argued that this contention should be rejected. Both phrases, it was argued, could be given a coherent and sensible meaning on the appellant’s construction of the Override Deed:

… “the total Amount Owing in full” is a reference to everything owed to the Financiers as identified in the GCR … [until the “total Amount Owing”] has been paid “in full” the Remaining Obligors are liable for the “total Amount Owing”, which is the figure that remains owing at a particular time. On this construction, until everything owed (i.e. “the total Amount Owing in full”) is paid there remains a liability to repay what is outstanding (i.e. “total Amount Owing”).

110    It was argued that the Financiers’ construction sought to read the two phrases (‘total Amount Owing’ and ‘total Amount Owing in full’) as though they meant the same thing despite the fact that different words are used. Were the Financiers’ construction to be adopted, Obligors would remain liable for the ‘total Amount Owing in full’ notwithstanding the fact that the Financiers had been repaid some of that amount in the form of Approved Transaction proceeds, like the Moly-Cop Proceeds. This, it was put, would deliver an uncommercial result which ought not to be accepted by the Court.

111    The appellant also argued that the construction adopted by the Financiers suggested that the Override Deed intended to make significant departure from ‘usual lending arrangements’ and the effect of the Subject Finance Documents. It was said that it would be unusual for such a departure to be effected via ‘a single sub-subclause in a provision that is (even on [the Financiers’] construction) predominantly directed as a different issue’.

Clause 6.2

112    As noted above at [105] of these reasons, the Financiers argued that cll 6.2(c) and (d) were concerned with the entitlements of the Financiers to the distribution of proceeds amongst themselves, as opposed to the amounts actually owed by the Obligors to the Financiers.

113    On reply, the appellant contended that the Financiers’ construction was demonstrably false. The appellant argued that cl 6.2(d) was directly relevant to the amount owed by the Obligors to the Financiers because the defined term ‘Amount Owing’ refers to the GCR, which is in turn defined as the table in Sch 3 of the Override Deed ‘as amended in accordance with clauses 6.2(d)(i) … and 6.3(c)(ii)’.

114    The appellant also argued that the Financiers’ construction of cl 6.2 was neither harmonious, nor commercially sensible. It was said to require the Court to read cll 6.2(a) and (b) as directed at identifying the amounts owed to the Financiers by the Obligors, while reading cll 6.2(c) and (d) as directed at the entitlements of the Financiers to the distribution of proceeds amongst themselves.

115    The appellant also critiqued the Financiers’ claim that nothing in the Override Deed expressly provided for the GCR to be updated to reduce the Amount Owing as missing the point. On the appellant’s submission, no express power would be required under the Override Deed because such an effect would already follow from the definition of Amount Owing as debts and claims under the Subject Finance Documents. When those debts and claims are repaid, or partly repaid, the debt reduces for the purpose of the GCR, which is to be updated monthly, or prior to a distribution.

Required Consent Report

116    The appellant then addressed the Financiers’ contentions with respect to subcl 5.1(a)(iii) of the Required Consent Report. As stated at [95]-[98] of these reasons, the Financiers argued that the subclause in the Required Consent Report – which both parties agreed operated as a legally binding deed – supported the trial judge’s conclusions.

117    On reply, the appellant took a different view. It argued that subcl 5.1(a)(iii) may, at first blush, appear to be an acknowledgement that receipt of Moly-Cop Proceeds ‘will not prejudice the Financiers’ ability to prove for the Amount Owing as of 7 April 2016’. However, as highlighted by the appellant, the language of subcl 5.1(a)(iii) is cast in a passive voice and merely acknowledges an absence of prejudice. In other words, the subclause is not, as a matter of construction, sufficient to establish new rights for the Financiers that are inconsistent with the Subject Finance Documents. It was asserted by the appellant that the Required Consent Report was not sufficient to create the rights contended for by the Financiers and that, as a consequence, subcl 5.1(a)(iii) was of no assistance to the Financiers’ proposed construction.

Deed Poll

118    As noted at [101] of these reasons, the Financiers relied on subcl 3(a)(ii) of the Deed Poll, the relevant part of which states ‘until such time as the Financiers have received the total Amount Owing in full, the total Amount Owing remains outstanding’, which mirrors the language used in subcl 3.2(d)(i) of the Override Deed.

119    However, on the appellant’s submissions in reply, the significance of this language was called into question. It was argued that given the relationship between the Override Deed and the Deed Poll, it was not possible to conceive that the parties intended for language (which was mirrored in that way) to bear a different meaning in the two documents. Hence, it was argued, for the same reasons that apply to subcl 3.2(d)(i) of the Override Deed, as a matter of construction, subcl 3(a)(ii) of the Deed Poll did not have the effect contended by the Financiers.

Distribution DOCA

120    Exclusively in its reply submissions, the appellant’s sought to refer to the Distribution DOCA and the way in which it governed the rights of creditors to prove in the Distribution Fund. Relevantly, cl 19.1 prescribed how proofs of debt submitted to the Administrators are to be assessed.

121    The appellant argued that this provision of the Distribution DOCA controlled the admission of proofs in respect of the Distribution Fund, and that by reason of s 444D(1) of the Corporations Act, the provisions of the Distribution DOCA bound all creditors who made claims arising before the date on which the Administrators were appointed.

122    The appellant asserted that if the Financiers’ construction was to be adopted, it would mean that on execution of the Override Deed, Required Consent Report and the Deed Poll, the Financiers were able to amend the ‘claims’ as they stood at 7 April 2016 and convert them from, in the words of the appellant, ‘orthodox lending arrangements’ (where partial repayment reduced the outstanding debt), to ‘unorthodox claims’ that required the whole of the debt to be repaid before there was any reduction in the borrowers’ (or Obligors’) liability for the whole of the amount borrowed.

123    The appellant contented that those submissions should fail as a matter of construction, but stated that even if the Financiers’ construction arguments were accepted, the result urged by the Financiers could not be achieved. Clause 19.1 of the Distribution DOCA required the Administrators to adjudicate claims as at 7 April 2016. On that date, the amended rights claimed by the Financiers did not exist because documents executed by the Administrators after 7 April 2016 could not logically operate to modify the rights created by cl 19.1 of the Distribution DOCA.

SUPPLEMENTARY SUBMISSIONS

124    At the conclusion of oral submissions heard by the Court on 23 May 2018, the parties were invited to make further written submissions in respect of the Distribution DOCA, s 444D(1) of the Corporations Act and their combined effect. The parties were also invited to make submissions that considered a scenario where the Court were to find against the Financiers on the Override Deed, but for the Financiers on either or both of the Required Consent Report and the Deed Poll. In accordance with the directions of the Court, the appellant made what were termed supplementary submissions on these points on 1 June 2018, and the Financiers lodged corresponding supplementary submissions on the same points a week later on 8 June 2018.

125    The appellant’s supplementary submissions commenced by addressing its fourth ground of appeal in its original notice of appeal dated 22 December 2017 (the same ground of appeal discussed at [107]-[108] of these reasons), which alleged an inconsistency between the Deed Poll and cl 19.1 of the Distribution DOCA:

… the learned trial judge was in error in holding … that in purporting to permit the Financiers to prove for the ‘Amount Owing’, as that expression was construed by her Honour, the Deed Poll operated consistently with clause 19.1 of the [Distribution] DOCA. On the contrary, on the learned primary judge’s construction, because the operation of clause 6.2 of the Override Deed mean that the ‘Amount Owing’ was increased from time to time by accrued interest, fees, costs and expenses incurred after 7 April 2016, the ‘Amount Owing’ included sums which were not due at that date. It is inconsistent with clause 19.1 of the [Distribution] DOCA, which required the Administrators to adjudicate proofs as at that date.

126    The appellant’s supplementary submissions then proceeded to canvas its contentions if the Court were to find against the Financiers on the Override Deed, but for the Financiers on either or both of the Required Consent Report and the Deed Poll.

127    The appellant contended that if the Court reached the view that either (or both) of the Required Consent Report and Deed Poll had the effect contended by the Financiers (but the Override Deed did not), the Court would likely be required to address the question raised for determination at first instance in a more nuanced way than a “Yes” or “No” answer.

128    On the appellant’s view, two issues would in any event need to be resolved by a court for the matter to finally proceed to determination:

(1)    whether the Required Consent Report was a valid and enforceable document (termed by the appellant as the ‘Validity Question’); and

(2)    whether the Administrators’ conduct in executing the Required Consent Report breached duties owed by them, or was otherwise impugned, so as to make their proposed conduct of accepting the Financiers’ proofs (without deduction of the Moly-Cop Proceeds) inconsistent with the judicial advice sought (termed by the appellant as the ‘Duty Question’).

129    The Court has now read the supplementary submissions of the parties, and the position is as follows.

130    Both parties accepted that the Duty Question was not considered below and should not therefore be considered in this appeal. We agree.

131    The Validity Question does involve a question of construction raised in the appellant’s fourth ground of appeal, and to that extent it was considered by the trial judge at [49]-[50] of the primary judgment. There is agreement between the parties that the fourth ground of appeal should not only be read as relating to the Deed Poll, but also to the Required Consent Report and [49]-[50] of the primary judgment.

132    In our view, the alleged inconsistency between cl 19.1 of the Distribution DOCA and the Deed Poll and Required Consent Report are matters that were raised before the trial judge, and are raised in the fourth ground of appeal (which has not been abandoned), and these impact on the construction issues. Accordingly, we will deal with this construction issue in this appeal.

133    We will not determine any wider issue concerning the unenforceability of the Required Consent Report by reason of the operation of s 444D of the Corporations Act. The ambit of the dispute between the parties before the trial judge and before us on appeal was only concerned with construction issues.

134    The appellant submitted that the trial judge made two errors in construing the Distribution DOCA which led her Honour into error at [49]-[50] of the primary judgment. Her Honour concluded that cl 19.1 of the Distribution DOCA had the effect that the Financiers’ proofs were to be adjudicated as at the Appointment Date without deduction for later partial repayment, and consequently the Distribution DOCA was consistent with the construction of the Required Consent Report advanced by the Financiers. This reasoning, it was submitted, was flawed.

135    The appellant submitted that cl 19.1 was relevantly in two parts. The chapeau to the clause, from its commencement down to the words ‘Appointment Date’, was said to be orthodox and reflected in substance the standard form of a typical DOCA. The second part of the clause, comprising the balance of the words, were inserted to deal with the complications that arise from the pooling arrangement. The entirety of cl 19.1 was said to be mechanical in its terms, as was cl 18 which stood as the principal clause dealing with the lodgement and adjudication of proofs. Clause 18.1(d) required the Administrator to assess a creditor’s proof of debt and determine its admitted claims for which it will be entitled to receive a distribution via the waterfall mechanism in cl 19.2. Pursuant to the Subject Finance Documents, any part payment received from the Moly-Cop Proceeds were to be deducted from the amount claimed by the Financiers to determine their admitted claim.

136    In the appellant’s view, the trial judge’s conclusion appeared to be that the first half of cl 19.1 operated so that a debt adjudicated as at the Appointment Date must be admitted to proof for the full amount, even though that debt was partially extinguished by repayment after the Appointment Date. According to the appellant, the trial judge’s reasoning depended on this conclusion about the effect of cl 19.1 of the Distribution DOCA, but that if that conclusion was correct, it would have implications for almost every other DOCA due to the orthodoxy of the language of that part of cl 19.1.

137    It was further argued by the appellant that the peculiar facts of this case – namely that one group of creditors (being the Financiers) had received a substantial payment from the assets of the insolvent debtors ahead of other creditors – should not obscure the wider ramifications of adopting a construction of orthodox language used in DOCA about admission to proof to the effect that any creditor receiving part payment after the Relevant Date could nonetheless prove as if such payment did not partially extinguish the relevant debt.

138    The main contentions of the Financiers in response were as follows. The Financiers dismissed the appellant’s premise that payments by a debtor or a guarantor to a creditor must always be characterised as partially extinguishing a debt owed by the debtor to the creditor. It was submitted that it is a matter of the relevant parties’ intentions as to whether or not the payment goes towards part satisfaction of the debt. In this case, it was the Documents which evinced such an intention, namely that the Moly-Cop Proceeds did not effect a partial repayment of the Amount Owing (unless and until that Amount Owing was repaid in full). It was further argued that contrary to the submissions of the appellant, the Financiers held the benefit of the Group Guarantees from most of the Moly-Cop Sale Entities. By reason of those extant rights, the Financiers asserted that they were in a position to give their consent to the Moly-Cop Transaction (and the release of those Group Guarantees) only on the condition that their provable debts would not be reduced, as if all of the proceeds had come directly from guarantors by way of those guarantors selling all of their assets and remitting the proceeds to the Financiers (without the debt being reduced).

139    The Financiers submitted that once it was appreciated that on a proper construction of the Documents, no debts were extinguished, it followed that there was no inconsistency with the Distribution DOCA. It was put that in substance, cl 19.1 provided that each creditor’s entitlements were to be ascertained as at 7 April 2016 and regardless of whether the Arrium Group Claim had been ‘subsequently novated, released or extinguished’ by the events described in subcll 19.1(a)(i) and (ii). As to the first part of the clause, the Administrators intended to adjudicate the claimed entitlements of the Financiers as at 7 April 2016. As to the second part of the clause, no part of the claim of the Financiers has been ‘subsequently novated, released or extinguished’.

140    The Financiers also submitted that the Documents were not inconsistent with the Distribution DOCA in circumstances where, under subcl 19.1(a)(ii) of the Distribution DOCA, the Administrators had the express power to admit a claim in full ‘regardless of whether the [claim] has been subsequently novated, released or extinguished by any other party or parties’. Even if the debts of the Financiers were partially extinguished by the Moly-Cop Proceeds, the Administrators’ promise in the Required Consent Report (to the effect that the Financiers’ proofs of debt would not be reduced by reason of that partial extinguishment) was, it was argued, entirely consistent with subcl 19.1(a)(ii) of the Distribution DOCA.

CONSIDERATION

141    There was no dispute between the parties concerning the principles to be applied in construing the Documents before the Court. The question is what a reasonable businessperson would have understood the Documents to mean. Consideration must be given to the language used, the surrounding circumstances known to the parties and the commercial purposes or objects secured by the Documents.

142    As recently stated by a plurality of the High Court in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [46]-[52] (French CJ, Nettle and Gordon JJ):

The rights and liabilities of parties under a provision of a contract are determined objectively … by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.

In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean … That enquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract …

Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning …

However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating” … It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals.

Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties’ statements and actions reflecting their actual intentions and expectations …

Other principles are relevant in the construction of commercial contracts. Unless a contrary intention is indicated in the contract, a court is entitled to approach the task of giving a commercial contract an interpretation on the assumption “that the parties ... intended to produce a commercial result” … Put another way, a commercial contract should be construed so as to avoid it “making commercial nonsense or working commercial inconvenience”.

(citations omitted)

143    As is apparent from the description of the Documents and the arguments put by the parties, the various words and phrases adopted in the Documents, with the abundant use of defined terms, causes difficulties in understanding the operation of the Documents. However, once the purpose and operation of the Documents is understood, and by reading the definitions in the context of the operative provisions, the arguments put forward by the Financiers and the approach of the trial judge are in our view sound.

144    At the outset, it is important to keep in mind that in order to facilitate an orderly sale of the Moly-Cop business, the Administrators and the Moly-Cop Entities sought forbearance from the Financiers from enforcing their rights under the Group Guarantees. In return for this forbearance, the Financiers required the proceeds from the sale of any of the Moly-Cop Entities to be allocated to the Financiers in respect of the Financier Debt. The parties executed a suite of contractual documents, pursuant to which the Financiers agreed to the forbearance and gave the consents and releases required to implement the sale of the Moly-Cop Sale Entities free of the Financiers’ claims. In order for the Moly-Cop Transaction to proceed, it was necessary to obtain the Financiers’ release of certain of the Moly-Cop Sale Entities from their obligations under the Group Guarantees, and that as a condition to this release the Financiers were able to leverage their advantageous bargaining position to secure favourable commercial terms in the administration of the Arrium Group. By reason of those extant rights, the Financiers were in a position to give their consent to the Moly-Cop Transaction (and the release of those Group Guarantees) only on the condition that their provable debts would not be reduced, as if all of the proceeds had come directly from guarantors by way of those guarantors selling all of their assets and remitting the proceeds to the Financiers.

145    More specifically, it is to be recalled that the Documents were executed in circumstances where the quantum of the debt guaranteed by certain of the Moly-Cop Sale Entities to the Financiers (approximately $2.8 billion) far outweighed the total value of those entities (approximately $1.4 billion), such that the shares held by the Arrium Group in the Moly-Cop Sale Entities were essentially worthless. Further, the Financiers’ consents in the Documents were integral to the Moly-Cop Transaction proceeding. There would have been no transaction at all if the Financiers had not received the Required Consent Report and the Deed Poll as, in those circumstances, there would have been no guarantor releases provided by them in respect of the Group Guarantees.

146    Therefore, whilst the Financiers could take the entire benefit of the Moly-Cop Proceeds, this at the time the Documents were entered into should not be seen as necessarily commercial nonsense or commercially inconvenient.

147    It is also important to understand that the scheme surrounding the operation and purpose of the Documents supports the approach taken by the trial judge, and puts in context the language used in the Documents.

148    As all parties accepted, there was a need to preserve the effect of the Group Guarantees held by the Financiers. The Documents were not entered into to create rights, in the sense of giving the Financiers additional rights in relation to the proofs of debt. The Subject Finance Documents were to remain binding and to continue in full force and effect, and were only to be amended, varied and supplemented by the Override Terms in the Override Deed (see cl 3.1 of the Override Deed). This was reinforced a number of times in the Override Deed and other documents, in one way or another, by reference to the term ‘Amount Owing’ and specific clauses preserving the position of the Financiers. For instance, cl 7.2 of the Override Deed provided that despite the operation of the Override Deed, the Financiers had not compromised their debts or claims under the Subject Finance Documents.

149    Whilst each of the Override Deed, Required Consent Report and Deed Poll had different functions, they all harmoniously interacted with each other in effectively dealing with the proposed sale of the Moly-Cop Sale Entities and the relationship between the Financiers. The Documents were all directed to ensuring that, notwithstanding the receipt of the proceeds of an Approved Transaction (specifically the Moly-Cop Proceeds), the total Amount Owing remained outstanding. In each of the relevant clauses of the Documents, ‘Amount Owing’ was defined to mean each Financier’s ‘debts and claims (without duplication) under the Subject Finance Documents’ because usage of that definition therein was not directed to ‘calculations and distributions’ under the Override Deed.

150    Nevertheless, each of the Documents had a separate purpose. Subclause 3.2(d)(i) of the Override Deed was directed at Approved Transactions generally, and to define the ongoing contractual obligations of the Remaining Obligors. By contrast, subcl 5.1(a)(iii) of the Required Consent Report was concerned specifically with the Moly-Cop Transaction and the right to prove for the Amount Owing as at 7 April 2016 and to receive distributions under the Distribution DOCA. The Deed Poll was directed to the implications of the receipt of the Moly-Cop Proceeds in the context of the ongoing contractual entitlements of the Financiers rather than their rights in respect of proofs of debt. In addition, although consistent with one another, each of the Documents operated as a freestanding legal instrument.

151    It is also to be observed that subcl 3.2(d)(i) of the Override Deed does not relate to ‘calculations and distributions’ among the Financiers and, therefore, the second part of the definition of ‘Amount Owing’ is not engaged. That is not to say that ‘Amount Owing’ means different things, but the defined meaning needs to be applied in accordance with its terms in the context of the relevant operative provision of the document in question. Whilst not engaged in subcl 3.2(d)(i), the second part of the definition is engaged in cl 6 of the Override Deed.

152    In essence, the clauses relied upon by the Financiers emphasise that the obligations under the Subject Finance Documents continued to apply, were not to be ‘overridden’ by the Override Deed, and the ability to prove for the Amount Owing at 7 April 2016 was not prejudiced. The Deed Poll itself was very explicit. The Moly-Cop Proceeds that were paid to the Global Agent for distribution to the Financiers were acknowledged as being insufficient to discharge the Amount Owing in full (that is, the debts and claims then owing under the Subject Finance Documents) (subcl 3(a)(i)). Then until such time as the Financiers had received the total Amount Owing in full (that is, the debts and claims under the Subject Finance Documents), the total Amount Owing remained outstanding (subcl 3(a)(ii)).

153    Viewing the definition of ‘Amount Owing’ as having two parts, the Amount Owing as recorded in the GCR was a matter only concerning the Financiers. It did not affect or touch on the rights of the Obligors. The whole procedure set out in cl 6.2(b) – that is, the updating of the Amount Owing in respect of each Financier on each Record Date – was for the purpose of keeping track of the number of votes held by each Financier on questions of whether to approve would-be Approved Transactions.

154    Returning to subcl 3.2(d)(i) of the Override Deed, the relevant phrases to be construed in that subclause were ‘total Amount Owing in full’ and ‘total Amount Owing’ (emphasis added), not just ‘Amount Owing’ as a standalone expression. In order to give the words ‘total’ and ‘in full’ work to do, the relevant phrases should be interpreted as referring to the Amount Owing under the Subject Finance Documents, unreduced and unaffected by the receipt of any proceeds of an Approved Transaction, such as the Moly-Cop Proceeds.

155    The approach of the appellant was to construe the Override Deed as ‘overriding’ the Subject Finance Documents in respect of the Amount Owing as at 7 April 2016 for the purposes of lodging proofs of debt. However, the Override Deed was focussing on the possibility of the Moly-Cop Entities being sold in more than one transaction, and then the mechanism for the distribution of the proceeds amongst the Financiers. As we have indicated, the calculation of the amounts set out in the GCR were for this purpose. The calculation of the Amount Owing is to be viewed (as contemplated by cl 6) as relevantly affecting the interests of each Financier and effecting the sale of the Moly-Cop Entities. On our approach, the Override Deed preserves the Subject Finance Documents and only varies, amends or supplements to the extent necessary to allow for the sale of the Moly-Cop Entities (and otherwise such as to deal with the ‘Turnover Amounts’).

156    Further, the Override Deed did distinguish between Obligors that were to be sold as part of the voluntary administration and Obligors that were not to be sold as part of the voluntary administration.

157    Clause 4 dealt with Obligors that were to be sold as part of the voluntary administration. It provided for a series of consents, releases, waivers, novations and agreements by the Financiers and created a procedure under which the Administrators were required to prepare and deliver to a steering committee a ‘required consent report’. Assuming each Financier granted the required consents, waivers, novations and agreements in order to facilitate the transaction, the transaction would constitute an Approved Transaction for the purposes of the Override Deed. Once the Approved Transaction was completed and proceeds were received by the Global Agent, the proceeds would be distributed via the process set out in cl 5.

158    Clause 3.2(d) related to where the Obligors were not to be sold as part of the voluntary administration of the Arrium Group. By cl 3.2(d), at each ‘Consent Effective Time’ (as recorded in the relevant required consent report), those Obligors acknowledged and agreed that, notwithstanding any amendments, variations, waivers, releases or consents granted by the Financiers by operation of cl 4.1 in the context of a required consent report:

(1)    until such time as the Financiers had received the total Amount Owing in full, the total Amount Owing remained outstanding (subcl 3.2(d)(i));

(2)    each such Remaining Obligor was jointly and severally liable to pay the Amount Owing in accordance with the terms of the Subject Finance Documents (subcl 3.2(d)(ii)); and

(3)    each such Remaining Obligor’s obligations under the Subject Finance Documents were not affected by the variation, waivers, releases or consents granted (subcl 3.2(d)(iii)).

159    We agree with the approach of the Financiers that subcll 3.2(d)(ii) and (iii) intended to affirm the liability of each Remaining Obligor, notwithstanding the amendments, variations, waivers, releases or consents granted by the Financiers arising from their execution of the Required Consent Report. On the other hand, subcl 3.2(d)(i) had a different purpose which was to establish that until the Financiers had received the ‘total Amount Owing in full’ – that is, the total Financier Debt of $2.8 billion – that amount of $2.8 billion remained outstanding.

160    The Required Consent Report and the Deed Poll implement these arrangements, and are consistent with such arrangements.

161    As to the specific operation of cl 6 of the Override Deed and the GCR, we reject the characterisation put by the appellant that cl 6 and the GCR served to identify amounts owed by Obligors to the Financiers and that the Amount Owing for each Financier needed to be updated upon that Financier’s receipt of proceeds from that Approved Transaction. Clause 6, and in particular cll 6.2(c) and (d), were concerned with the entitlements of the Financiers to the distribution of proceeds amongst themselves. Nowhere in cl 6, or anywhere in the Override Deed, was there any requirement that the GCR be ‘updated’ so as to reduce the Amount Owing, namely the debts and claims under the Subject Finance Documents. In our view, cl 6 and the GCR were not intended to record the Amount Owing in this sense at any given time: rather, cll 6.2(a) and (b) determined the Amount Owing (that is the debts and claims under the Subject Finance Documents) as at the Relevant Date, being the critical date for proof of debt purposes, and that the adjustments to the Amount Owing contemplated by cll 6.2(c) and (d) do not change the Amount Owing as at the Relevant Date but did change the Amount Owing for the purposes of cl 6 and the GCR.

162    In our view, the Documents all evince the parties’ intention that the Moly-Cop Proceeds did not effect a partial repayment. This conclusion flows from the plain words of the Documents themselves and is supported by a consideration of the circumstances in which the Documents were entered into. The plain words appear, in particular, in subcl 3.2(d)(i) of the Override Deed, subcll 3(a)(i) and (ii) of the Deed Poll and subcl 5.1(a)(iii) of the Required Consent Report. The language of those provisions reflects the fact that the parties did not intend the receipt of the Moly-Cop Proceeds to be a repayment of any part of the Amount Owing unless and until the total Amount Owing was repaid in full.

163    It has to be observed that the inference to be drawn from the contextual background is that the parties intended the Financiers to be placed in the same position as if the payments were made by guarantors under the Group Guarantees so as to attract the rule against double proof affirmed in Westpac v Gollin. Contrary to the appellant’s argument, it is not apt to say that the rights now claimed by the Financiers did not exist as at 7 April 2016. As we have said, the Financiers held the benefit of guarantees from most of the Moly-Cop Sale Entities and by reason of those extant rights, were in a position to condition their consent to the Moly-Cop Transaction (and the release of the Group Guarantees) on their provable debts not reducing, as if all of the proceeds had come directly from guarantors by way of those guarantors selling all of their assets and remitting the proceeds to the Financiers (without the debt being reduced).

164    Relevant to the fourth ground of appeal, once it is appreciated that on a proper construction of the Documents no debts are extinguished, it follows that there is no inconsistency with the Distribution DOCA. We agree with the submissions of the Financiers. In substance, cl 19.1 provided that each Arrium Group Creditor’s Entitlements were to be ascertained as at the Appointment Date and regardless of whether the Arrium Group Claim had been ‘subsequently novated, released or extinguished’ by the events described in subcll 19.1(a)(i) and (ii). As to the first part of the clause, the Administrators intended to adjudicate the claimed entitlements of the Financiers as at the Appointment Date. As to the second part of the clause, no part of the claim of the Financiers had been ‘subsequently novated, released or extinguished’. On our approach, the Financiers will receive their rateable share of any funds of the Arrium Group strictly in accordance with the Distribution DOCA.

165    We also agree with the submissions of the Financiers that the Documents cannot be said to be inconsistent with the Distribution DOCA in circumstances where, under subcl 19.1(a)(ii) of the Distribution DOCA, the Administrators have the express power to admit a claim in full ‘regardless of whether the [claim] has been subsequently novated, released or extinguished by any other party or parties’. Even if the debts of the Financiers were partially extinguished by the Moly-Cop Proceeds, the Administrators’ promise in the Required Consent Report, to the effect that the Financiers’ proofs of debt would not be reduced by reason of that partial extinguishment is consistent with subcl 19.1(a)(ii) of the Distribution DOCA. One way or another, that outcome was a necessary ingredient of the securing of the Moly-Cop Transaction.

CONCLUSION

166    For the foregoing reasons, the appeal should be dismissed. The trial judge’s determination was correct.

167    We will direct that the parties confer and within 21 days provide a minute of proposed order (including on the question of costs). If the parties cannot agree, then a short submission should be filed and served as to their position within 21 days.

Associate:

Dated:    20 December 2018