FEDERAL COURT OF AUSTRALIA
NSD 1534 of 2018
Date of judgment:
Date of hearing:
New South Wales
National Practice Area:
Commercial and Corporations
Corporations and Corporate Insolvency
Number of paragraphs:
Counsel for the Plaintiff:
Mr M L Rose
Solicitor for the Plaintiff:
King & Wood Mallesons
NSD 1534 of 2018
CHALLENGER GOLD OPERATIONS PTY LTD (ADMINISTRATORS APPOINTED) ACN 000 715 882
WPG SECURITIES PTY LTD (ADMINISTRATORS APPOINTED) ACN 149 062 724 (and others named in the Schedule)
DATE OF ORDER:
THE COURT ORDERS THAT:
2. Pursuant to section 447A(1) of the Corporations Act 2001 (Cth) (Act), section 444B(2)(a) of the act operate in relation to WPG Resources Ltd (receivers and managers appointed) (in liquidation) ACN109 426 502 (WPG Resources) as if the reference to “15 business days” in that subsection was a reference to “16 business days”.
Service and notices
3. The plaintiffs, within five business days of the making these orders, take all reasonable steps to give notice of the orders to WPG Resources’ creditors (including the persons claiming to be creditors), by means of a circular:
(a) To be sent by email transmission to creditors for whom the plaintiffs have a current email address; or
(b) To be sent by ordinary post to creditors for whom the plaintiffs have only a postal address.
4. Any person who can demonstrate a sufficient interest (including any creditor of WPG Resources) for the purpose of modifying or discharging any order made pursuant to paragraph 2 has liberty to apply on giving all other interested parties not less than 3 business days’ notice.
5. Orders 1 to 4 of this interlocutory process be entered forthwith.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
1 This is an application seeking an order pursuant to s 447A of the Corporations Act 2001 (Cth) (the Act), that s 444B(2)(a) of the Act is to operate in relation to the company WPG Resources Limited (In Liquidation) (Receivers and Managers Appointed) (WPG Resources) as if the reference to 15 business days in that subsection was a reference to 16 business days.
2 As explained in the written submissions for the plaintiffs, the application arises in circumstances where despite steps being taken to have a deed of company arrangement (DOCA) in respect of WPG Resources executed within the 15 day period set out in s 444B(2)(a) of the Act, in fact, the DOCA was not executed by WPG Resources until eight minutes past midnight on the sixteenth day.
3 In those circumstances, the effect of s 446A(2) of the Act was that at 12.01 am on the sixteenth day WPG Resources was deemed to have passed a special resolution under s 491 of the Act that it be wound up voluntarily, and that the liquidators were deemed to have been appointed liquidators of WPG Resources at that time.
4 The purpose of the order now sought is to ensure that the intention of proceeding in accordance with the DOCA can be effectuated.
5 The evidence for the applicant gives details of the circumstances in which the DOCA came to be executed after the period of 15 business days. The evidence also confirms that all relevant persons have proceeded on the basis that the DOCA had been effectively executed.
6 In short, on 22 July 2019 the liquidators had notified the Australian Securities Exchange (ASX) that the DOCA had been executed and that the liquidators, as a result, were the deed administrators of WPG Resources. Further, there has been tendered in evidence, as exhibit 1, a communication which confirms that the deposit amount in accordance with the DOCA has now been transferred on the basis that the execution of the DOCA was effective.
7 The plaintiffs’ written submissions confirm that it is appropriate that the orders be granted in circumstances where (1) the creditors of WPG Resources in attendance at the reconvened second meeting voted unanimously in favour of the DOCA; (2) the delay in execution of the DOCA was inadvertent, and arose as a result of the parties engaging in protracted negotiations about its terms and a short delay in it being signed; (3) the liquidators have to date acted on the basis that the DOCA is effective, including by notifying the ASX of its execution; (4) upon becoming aware that the DOCA was not effective, the liquidators sought the orders that are the subject of this application; (5) the DOCA proponent supports this application; and (6) WPG Resources’ creditors have been notified, and there has not been any opposition to the orders sought by the liquidators.
8 In these circumstances, as the submissions for the plaintiffs state, there is no suggestion that any rights might be adversely affected by the orders sought in the present application being made. In these circumstances, I will make orders in accordance with the interlocutory process.
NSD 1534 of 2018
TARCOOLA GOLD PTY LTD (ADMINISTRATORS APPOINTED) ACN 137 063 140
TUNKILIA GOLD PTY LTD (ADMINISTRATORS APPOINTED) ACN 108 925 382
SOUTHERN COAL HOLDINGS PTY LTD (ADMINISTRATORS APPOINTED) ACN 142 504 827
WPG GAWLER PTY LTD (ADMINISTRATORS APPOINTED) ACN 130 640 041