Federal Court of Australia

Tucker, in the matter of Aurora Metals Limited (Administrators Appointed) [2023] FCA 761

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to section 447A of the Corporations Act 2001 (Cth), Part 5.3A of the Act operate as if section 443A(1) of the Act be modified to provide that any debts or liabilities of the plaintiffs incurred with respect to any obligations arising out of or in connection with a loan facility agreement between Avior Asset Management Pty Ltd (ACN 653 778 431), as lender, and the plaintiffs, as borrowers, made on the terms of the draft loan facility agreement annexed to the affidavit of Mr Richard Scott Tucker sworn 30 June 2023 and marked ‘RST-13’ (Loan Agreement) (including but not limited to monies borrowed, interest in respect of monies borrowed and borrowing costs, fees and indemnities) be in the nature of debts incurred by the plaintiffs in the performance and exercise of their functions and powers as joint and several voluntary administrators of the companies named in the schedule to these orders (Group Companies).

2.    Pursuant to section 447A of the Act, operation of section 443A(1) of the Act be modified, insofar as it applies to any liability of the plaintiffs (in their capacities as joint and several administrators of the Group Companies) pursuant to the Loan Agreement, so that if the indemnity of the plaintiffs under section 443D of the Act from the Group Companies be insufficient to meet any amount for which the plaintiffs might be liable arising out of or in connection with the Loan Agreement, then the plaintiffs will not be personally liable to repay any such amount to the extent of the insufficiency.

3.    The plaintiffs take steps to cause notice of these orders to be given, within one business days of making these orders to: (a) the creditors (including persons claiming to be creditors) of the Group Companies in the following manner: (i) where the plaintiffs have an email address for a creditor, by notifying each such creditor, via email of the making of the orders; (ii) where the plaintiffs do not have an email address, by publishing the orders on the website maintained by the plaintiffs, and (b) the Australian Securities and Investments Commission, by its email address.

4.    The costs of the plaintiffs originating process in respect of the orders made in paragraphs 1 – 3 of these orders be treated as costs in the voluntary administration of the Group Companies.

5.    Any person who demonstrates a sufficient interest to vary or discharge orders 1 - 4 above (including any creditor of the Group Companies) have liberty to apply to the Court on two business days' written notice to the plaintiffs.

6.    The relief sought in paragraphs 1 and 2 of the plaintiffs’ originating process be stood over and listed for further hearing on 4 July 2023 at 10.15am (AWST).

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

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to rules 39.05(e), 39.05(g) and 39.05(h) of the Federal Court Rules 2011 (Cth), paragraph 1 of the orders of 30 June 2023 be amended to insert the words ‘Aurora Metals Limited (Administrators Appointed) (ACN 120 634 606)’ before the words ‘the companies named in the schedule to these orders (Group Companies)’.

2.    To the extent necessary, pursuant to section 447A of the Corporations Act 2001 (Cth), Part 5.3A of the Act is to operate in such a way as to:

(a)    treat the appointment of Richard Scott Tucker, Anthony Jay Edward Miskiewicz and David Christopher Obsorne as joint and several administrators of Aurora Metals Limited (Administrators Appointed) (ACN 120 634 606) on 30 June 2023 by Pit N Portal Mining Services Pty Ltd (ACN 116 432 814) as a valid appointment under section 436C of the Act on 30 June 2023; and

(b)    treat the appointment of Tucker, Miskiewicz and Osborne as joint and several administrators of each of the other Group Companies (as described in the orders of 30 June 2023) as a valid appointment under section 436A of the Act on 30 June 2023,

unless and until an order of the Court is made varying or setting aside paragraph 1 of the orders of the Court made on 4 July 2023 in proceedings WAD 149 of 2023 by which an order was made under section 588FM of the Act extending the time, to 22 June 2023, for registration in respect of any security interests granted by Aurora Metals in favour of Pit N Portal Mining Services and which arose under a general security agreement dated 28 April 2023 between Aurora Metals, as grantor, and Pit N Portal Mining Services, as grantee.

3.    The costs of the relief sought in paragraphs 1 and 2 of the originating process be costs in the voluntary administration of the Group Companies.

4.    The plaintiffs take steps to cause notice of these orders to be given, within one business day of making these orders to: (a) the creditors (including persons claiming to be creditors) of the Group Companies in the following manner: (i) where the plaintiffs have an email address for a creditor, by notifying each such creditor, via email of the making of the orders; (ii) where the plaintiffs do not have an email address, by publishing the orders on the website maintained by the plaintiffs, and (b) the Australian Securities and Investments Commission, by its email address.

5.    Any person who can demonstrate a sufficient interest to vary or discharge paragraphs 2 and 3 of these orders (including any creditor of the Group Companies) has liberty to apply to the Court on two business days’ written notice to the plaintiffs.

6.    The plaintiffs have liberty to apply to vary or discharge any order made on the originating process.

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

REASONS FOR JUDGMENT

FEUTRILL J

Introduction and background

1    Late in the afternoon on Friday 30 June 2023, Pit N Portal Mining Services Pty Ltd (ACN 116 432 814) and the plaintiffs executed an instrument by which Pit N Portal appointed the plaintiffs the putative joint and several administrators of Aurora Metals Limited (ACN 126 634 606) under s 436C of the Corporations Act 2001 (Cth). The basis of the appointment was that Pit N Portal was a person entitled to enforce a security interest in the whole, or substantially the whole, of Aurora Metals’ property because the security interest was then enforceable. The relevant security interest was granted under a General Security Agreement dated 28 April 2023 between Aurora Metals, as grantor, and Pit N Portal, as grantee. That security interests was a PPSA security interest that Pit N Portal had registered under the Personal Property and Security Act 2009 (Cth) on 22 June 2023 and was, therefore, perfected within the meaning of the PPSA.

2    Shortly after the instrument of appointment was executed, the administrators acted to remove and replace the directors of certain companies that were immediate subsidiaries of Aurora Metals. The newly appointed directors then resolved to remove and replace the directors of the immediate subsidiaries of those companies and so on until all the companies referred to in the Schedule to the originating process had removed and replaced their directors. The newly appointed directors then resolved to appoint the administrators joint and several administrators of each of those companies under s 436A of the Act. In these reasons, Aurora Metals and each of the companies referred to in the schedule are referred to as the Group Companies.

3    Aurora Metals is the parent of the Group Companies which collectively own and operate several mines in Queensland that produce a variety of commodities including zinc, copper, lead gold and silver. Operations at the mines ceased during June 2023 due to financial difficulties and mine operations were placed on care and maintenance.

4    Pit N Portal is a mining services contractor. It provides care and maintenance services to the mines and made a mining services agreement with Aurora Metals in December 2021 by which it provided underground mining services for a mining operation known as the Chillagoe Project. As a result of non-payment of invoices due under that mining services contract, Aurora Metals and Pit N Portal made a deed of forbearance and repayment on 28 April 2023 and the GSA.

5    On 28 April 2023, Emeco International Pty Limited, a company related to Pit N Portal, purported to register a security interest under the PPSA in respect of the GSA. That purported registration was not effective because it was not in the name of the grantee and, therefore, failed to perfect the security interests granted under the GSA within the meaning of the PPSA. Subsequently, on 22 June 2023, Pit N Portal registered a security interest under the PPSA. That registration was effective as it was in the correct name of the grantee. That registration had the effect of perfecting, within the meaning of the PPSA, the security interest granted under the GSA.

6    It is evident that Aurora Metals failed to comply with the repayment plan set out in the deed of forbearance and repayment. Matters came to a head on 30 June 2023 when Pit N Portal indicated that it would not continue providing care and maintenance services unless Aurora Metals was able to secure funding to pay for the provision of those services. Pit N Portal had proposed that directors of Aurora Metals appoint administrators and that Avior Asset Management Pty Ltd provide funding for the administration in accordance with a proposed term sheet. The directors of Aurora Metals rejected that offer and, thereafter, Pit N Portal immediately took steps to appoint the administrators. Shortly after Pit N Portal executed the instrument to appoint the administrators, it offered to continue providing care and maintenance services subject to confirmation from the administrators that they had secured funding to pay for those services and the administrators issuing a purchase order for those services by 7.00 pm (AWST) on 30 June 2023.

7    In an affidavit sworn in support of the originating application, Mr Richard Scott Tucker, one of the administrators, deposed that, in substance, if care and maintenance services ceased, dewatering of at least one of the mines would cease and that mine could become flooded and the mine infrastructure damaged. Put another way, without dewatering there was a risk that the value of the assets of the Group Companies would be diminished to the detriment of the unsecured (and secured) creditors.

8    Mr Tucker also deposed that Avior was willing to provide funding to the administrators on the terms set out in a draft loan facility agreement annexed to his affidavit. The terms of that proposed agreement, in effect, were subject to a condition subsequent that the Court made orders modifying the operation of s 443A(1) of the Act such that the administrators’ liability under the loan facility agreement would be limited to the extent of the administrators’ indemnity under ss 443D and 443F of the Act. It was also a condition subsequent that the administrators would apply to the Court for such orders within 7 days after execution of the agreement.

9    In the circumstances described, the administrators applied for urgent orders to be made under s 447A of the Act. If such orders were made, the administrators would be in a position to confirm funding and issue a purchase order to ensure that Pit N Portal continued providing care and maintenance services and to mitigate the risk of damage arising from mine flooding. For the reasons which follow, I made the orders requested with respect to the loan facility agreement.

10    The administrators also requested that the Court make declarations as to the validity of their appointments, alternatively, that orders be made under s 447A having the effect of confirming the validity of their appointments. The administrators requested that orders be made confirming the validity of their appointment as administrators of Aurora Metals under s 436C of the Act because, in the circumstances described earlier, for the purposes of s 588FL(2) of the Act, the latest time for registration of the security interest in the collateral granted under the GSA was 20 business days after 28 April 2023. As the security interest was not registered until 22 June 2023, that registration was after the ‘latest time’. As a consequence, by operation of s 588FL, the PPSA security interest granted under the GSA vested in Aurora Metals immediately before the administrators were appointed under s 436C.

11    The administrators submitted that these circumstances created doubt about the validity of their appointment as administrators of Aurora Metals under s 436C of the Act. That, in turn, created doubt about the process by which the directors of the other Group Companies were removed and replaced and resolutions made appointing them administrators of all those companies under s 436A of the Act. Additionally, at the time the originating process was filed, the administrators had not been able to verify that the removal and replacement of the directors of those companies had been carried out in accordance with the constitutions of those companies. That second area of doubt was removed between 30 June 2023 and 4 July 2023.

12    The administrators filed and read a second affidavit of Mr Tucker sworn 3 July 2023. Exhibited to that affidavit were circular resolutions the administrators executed on behalf of Aurora Metals to replace the directors of companies that are the immediate subsidiaries of Aurora Metals. Exhibited to that affidavit were circular resolutions of the directors (as replaced) of other Group Companies by which all directors of the Group Companies were removed and replaced. Also exhibited to that affidavit were forms (Form 505) each relevant Group Company lodged with ASIC with respect to the appointment of the administrators as administrators of that company. The resolutions appointing the administrators under s 436A were exhibited to Mr Tucker’s first affidavit. The administrators also filed and read an affidavit of Ms Jing Yun Soh sworn 3 July 2023 which exhibited the constitutions of each of the Group Companies. The substance of these affidavits was that, subject to the validity of the administrators’ appointment under s 436C of the Act and the consequential validity of the replacement of the directors of the other Group Companies and their resolutions to appoint the administrators under s 436A of the Act, the administrators were satisfied that their appointments as administrators of the Group Companies were in accordance with the constitutions and the Act.

13    The administrators filed and read a second affidavit of Ms Soh sworn 4 July 2023. Although an executed version of the loan facility agreement was not in evidence, that affidavit exhibited a remittance advice demonstrating that there had been a drawdown on a loan and transfer of $750,000 from Avior to the administrators on 4 July 2023. That affidavit also exhibited email correspondence between lawyers of Lavan (the administrators’ solicitors) and lawyers of Dentons (who identified themselves as acting for Mt Garnet Mineral Finance Pty Ltd, a secured creditor, who had appointed Mr Phillip Campbell-Wilson and Mr Said Jahani of Grant Thornton as receivers and managers of all present and after acquired property of the Group Companies).

14    In the period between 30 June 2023 and 4 July 2023, Pit N Portal also filed an originating process by which it sought an order under s 588FM to extend the latest time, to 22 June 2023, for registration of the security interest in the collateral granted under the GSA. For the reasons given in a separate judgment on that originating process, I made the requested orders: Pit N Portal Mining Services Pty Ltd v Aurora Metals Limited (Administrators Appointed) [2023] FCA 762. However, the terms of those orders make provision for a person with a sufficient interest to apply to vary or set aside the order extending the time for registration.

15    Having regard to the order made under s 588FM, the question of the validity of the administrators’ appointment under s 436C as administrators of Aurora Metals and the validity of their appointment as administrators of the other Group Companies under s 436A is moot unless and until an order is made varying or setting aside the s 588FM order. However, to avoid any uncertainty concerning the validity of the administrators’ appointment in the meantime, for the reasons given later, I made orders that will have the effect of validating the administrators’ appointment from 30 June 2023 to the date any order is made varying or setting aside the s 588FM order.

16    For completeness, I should add that Mt Garnett Mineral Finance requested and was granted leave to appear on the hearing of the originating process. Mt Garnett Mineral Finance made no submissions in opposition to the orders the administrators sought on that application after I had indicated the orders that would be made on Pit N Portal’s originating process. Pit N Portal also appeared on the administrators’ originating process. It made no submissions in opposition to the orders the administrators’ requested but made a submission, which I accepted, that the appointment validation aspects of the administrators originating process should not be determined until after Pit N Portal’s originating process was heard and determined.

Loan facility agreement

17    Section 435A of the Act provides that the object of Part 5.3A and Schedule 2 (to the extent it relates to Part 5.3A) of the Act is to provide for the business, property and affairs of an insolvent company to be administered in a way that maximises the chances of the company, or as much as possible of its business, continuing in existence or, if that is not possible, results in a better return for the company’s creditors and members than would result from an immediate winding up of the company. Section 436C provides that a person who is entitled to enforce a security interest in the whole or substantially the whole of a company’s property may by writing appoint an administrator of the company if the security interest has become and is still enforceable. However, that applies to a PPSA security interest only if the security interest is perfected within the meaning of the PPSA. Section 436A provides that a company may, by writing, appoint an administrator of the company if the board has resolved to the effect that in the opinion of the directors voting for the resolution, the company is insolvent, or is likely to become insolvent at some future time, and an administrator of the company should be appointed. After appointment, an administrator is to convene a first meeting of creditors, assume control of the company’s affairs and investigate the company’s affairs before convening a second meeting of creditors for the purpose of determining if the company should execute a deed of company arrangement, the administration should be terminated or the company should be wound up: Part 5.3A Divisions 2 – 5 of the Act.

18    Section 443A of the Act provides:

443A    General debts

(1)    The administrator of a company under administration is liable for debts he or she incurs, in the performance or exercise, or purported performance or exercise, of any of his or her functions and powers as administrator, for:

(a)    services rendered; or

(b)    goods bought; or

(c)    property hired, leased, used or occupied, including property consisting of goods that is subject to a lease that gives rise to a PPSA security interest in the goods; or

(d)    the repayment of money borrowed; or

(e)    interest in respect of money borrowed; or

(f)    borrowing costs.

(2)    Subsection (1) has effect despite any agreement to the contrary, but without prejudice to the administrator’s rights against the company or anyone else.

19    Section 443D of the Act provides that the administrator of a company is entitled to be indemnified out of the company’s property (other than certain PPSA retention of title property that is not relevant for present purposes) for, relevantly, the debts for which the administrator is liable under s 443A of the Act. Section 443E provides that, subject to s 556, the right of indemnity under s 443D has priority over all the company’s unsecured debts and certain secured debts. Section 443F of the Act provides that the administrator has a lien over the company’s property to secure the right of indemnity under s 443D.

20    If the administrators enter into a loan agreement with a financier, that loan and the interest payable on it is not considered to be a debt falling with s 443A and the indemnity in s 443D. Therefore, an administrator, absent an order modifying the operation of Part 5.3A in respect of such a loan, would be personally liable for the loan principal and interest: Re Spyglass Management Group Pty Ltd [2004] FCA 1469; (2004) 51 ACSR 432 at [4].

21    Section 447A confers a broad power on the Court to ‘make such order as it thinks appropriate about how [Part 5.3A] is to operate in relation to a particular company’. Courts regularly make orders limiting an administrator’s liability under s 447A where satisfied that loan agreements are made for the purpose of allowing the company in administration to trade for the benefit of creditors: e.g., Korda, in the matter of Ten Network Holdings Ltd (Administrators Appointed) (Receivers and Managers Appointed) [2017] FCA 1144 at [42] (Markovic J); Re Virgin Australia Holdings Ltd (Administrators Appointed) (No 2) [2020] FCA 717; 144 ACSR 347 at [90] (Middleton J); Hill, in the matter of Ovato Limited (Administrators Appointed) [2022] FCA 903 at [14] (Stewart J). The applicable principles are well-established and set out in Re Unlockd Ltd (Administrators Appointed) [2018] VSC 345 at [60]-[64] (Sloss J) and need not be repeated. See, also, Virgin (No 2) at [89], [91]; Ovato at [15].

22    The key terms of the proposed loan facility agreement between Avior and the administrators may be summarised as follows.

(a)    Avior would agree to lend $10,000,000 for certain purposes referred to as Facility A ($750,000), Facility B ($750,000) and Facility C ($8,500,000) (Facility or Loan).

(b)    Subject to an order of the Court under s 447A, the Loan would constitute a debt or liability for which the administrators would be entitled to be indemnified under s 443D and s 443F of the Act and accorded priority in accordance with s 443E and s 556(1)(c) of the Act: cl 2.2.

(c)    The administrators would have no personal liability under the Facility and, to the extent permitted by law, their liability would be limited to the amount of their indemnity under s 443D of the Act: cll 2.1, 2.3, 2.4, 2.5.

(d)    The administrators would apply to the Court for orders under s 447A to limit the liability of the administrators in a manner consistent with cl 2: cl 3.

(e)    Facility A would be conditional on Pit N Portal agreeing to continue to provide the care and maintenance services: cl 5.6.

(f)    Facility B would be conditional on certain secured parties confirming that they would enter into a deed of priority on terms acceptable to Avior by which, amongst other things, a security to be granted to Avior to secure the Loan would have first ranking priority over the Group Companies’ assets: cl 5.7.

(g)    Facility C would be conditional on certain secured parties providing the administrators with written consent pursuant to s 443E(5) of the Act (debts secured by a circulating security interest) that the administrators’ indemnity under s 443D would have priority for the full amount of the Loans under the Facility: cl 5.4.4.

23    The effect of the conditions associated with the advances under Facility B and Facility C was that, without the agreement (consent) of various secured parties, the Loan under the proposed loan facility agreement would be limited to Facility A ($750,000) and the funds necessary to continue the care and maintenance services for a limited period of time. Otherwise, the proposed terms of the loan facility agreement appear to be reasonable, commercial and standard.

24    I was satisfied on the affidavit evidence of Mr Tucker that it was appropriate to make the orders the administrators requested for the following reasons.

(1)    Pit N Portal had evinced an intention to cease providing care and maintenance services in the absence of the administrators confirming that they had funding in place and a purchase order for those services. Without the continuing provision of care and maintenance services there was a risk that the assets of one or more of the Group Companies would be damaged and the value of the assets diminished.

(2)    Subject to the agreement (consent) of the various secured parties, the liability of the administrators under s 443A and extent of the indemnity for it under s 443D (as modified) would be limited to $750,000 and the funding necessary to preserve the Group Company assets in the short-term.

(3)    Secured creditors’ interests would not be affected without their agreement (consent) to the conditions of the proposed loan facility agreement.

(4)    The requested orders were consistent with the interests of unsecured creditors and, to the extent there were any unsecured creditors who (which) opposed the orders, their interests could be adequately preserved through an order permitting creditors to apply to vary or discharge the order.

Validation of administrators’ appointment

25    In the originating process, the administrators sought an order under s 447C of the Act for a declaration to the effect that their appointment as administrators of Aurora Metals under s 436C was valid. In the alternative, the administrators sought an order under s 447A of the Act to the effect that their appointment be treated as valid for the purposes of Part 5.3A.

26    As there was some complexity to that aspect of the originating process and it was not necessary to determine that question before 7.00 pm on 30 June 2023, I stood that part of the originating process over for further hearing on 4 July 2023. As already mentioned, in the meantime, Pit N Portal filed an originating process in which it sought orders extending the time for registration of the collateral to 22 June 2023 and I made orders in terms of that originating process on 4 July 2023. The effect of those orders, if they remain unvaried and are not discharged by further order of the Court, is that the security interest of Pit N Portal under the GSA has not vested in Aurora Metals. Therefore, there is presently no doubt of the kind the administrators have raised concerning the validity of the administrators’ appointment under s 436C of the Act.

27    However, under the orders made on Pit N Portal’s originating process, an interested party may apply to vary or discharge the s 588FM order. If such an order were made, it may, once again, call into question the validity of the administrators’ appointment under s 436C if the security interest is taken to have vested in the company under administration immediately before that appointment.

28    As the issue, at this point, is hypothetical and, in any event, there was no proper contradictor in respect of the declarations the administrators have sought, I considered that it was not appropriate to hear and determine the application for orders for declarations under s 447C at the present time. If an order were made varying or setting aside the s 588FM orders, then it may become necessary to determine the issue and consider if a declaration should be made. Likewise, I considered that it was not appropriate, at the present time, to hear and determine finally if an order should be made under s 447A because the question of whether such an order should be made would only arise if the Court were to determine that the administrators’ appointment under s 436C were not valid.

29    Notwithstanding that I considered it was not appropriate to determine, finally, the relief sought on the originating process under s 447C, alternatively s 447A, regarding the validity of the administrators’ appointment, I considered it was appropriate to remove any doubt about the validity of the administrators’ appointment between 30 June 2023 and the time at which any order may be made varying or discharging the s 588FM orders. The objects of Part 5.3A would not be promoted if there were uncertainty about the validity of the administrators’ appointment and performance of their functions under Part 5.3A in that period. Any interested party who (which) may apply to vary or set aside those orders may apply, at the same time, to challenge the validity of the administrators appointment should that party want to do so. The continuation of the administration would be dealt with at that time and, in the meantime, the administrators should be able to perform their functions unencumbered by any doubt about their authority. I also took into account evidence concerning the financial position of the Group Companies and that receivers and managers have been appointed by another secured creditor and that the email correspondence in evidence suggested that the extent of that appointment covers all property of the Group Companies. Therefore, there does not appear to be any real doubt that the financial circumstance of Aurora Metals and the other Group Companies is such that it would be appropriate for an administrator to be appointed to them under Part 5.3A of the Act.

30    The power in s 447A is sufficiently broad to allow an order to be made so as to preserve the status quo during the period of uncertainty as to whether the s 588FM orders will remain unaltered. It is also sufficiently broad to permit an order to be made validating an administrators’ appointment in circumstances in which that appointment was not validly made under s 436A, s 436B or s 436C of the Act: e.g., Re Live Board Holdings Ltd [2014] NSWSC 161 at [24]; HPI Australia Pty Ltd [2008] NSWSC 1106 at [28]; National Australia Bank Ltd v Horne [2011] VSCA 280; (2011) 253 FLR 205 at [1]-[2], [51]-[52].

31    It follows that I was satisfied that an order should be made pursuant to s 447A of the Act, to the extent necessary, validating the appointment of the administrators for, at least, the period between 30 June 2023 and the date of any order varying or setting aside the s 588FM orders.

Associate:

Dated:    6 July 2023

WAD 147 of 2023

SCHEDULE OF COMPANIES