FEDERAL COURT OF AUSTRALIA

Tucker, in the matter of Aurora Metals Limited [2023] FCA 869

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 439A(6) and s 447A of the Corporations Act 2001 (Cth) the period within which the plaintiffs must convene the second meeting of creditors in respect of Aurora Metals Limited (Administrators Appointed) (Receivers and Managers Appointed) (ACN 126 634 606) and each of the other companies named in the schedule (collectively, Group Companies) under s 439A of the Corporations Act (Second Meetings) be extended to 28 November 2023.

2.    Pursuant to s 447A(1) of the Corporations Act, Part 5.3A of that Act is to operate in relation to each of the Group Companies such that, notwithstanding s 439A(2) of that Act, the Second Meetings must be held at any time before, or within five business days after, the end of the convening period as extended by paragraph 1 of these orders and the Second Meetings may be held together or separately at any time during that period.

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 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 three business days' written notice to the plaintiffs.

6.    The plaintiffs have liberty to apply for further or other orders and to vary or discharge these orders.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Administration of Aurora Group

1    On 30 June 2023 the plaintiffs were appointed joint and several administrators of Aurora Metals Limited, under s 436C of the Corporations Act 2001 (Cth), and of each of the companies referred to in the schedule, under s 436A of the Act, (collectively, Aurora Metals and those companies are referred to as the Group Companies).

2    On 30 June 2023 and 4 July 2023, I heard and determined an application for, amongst other things, certain relief the administrators sought in respect of the Group Companies under s 447A of the Act: Tucker, in the matter of Aurora Metals Limited (Administrators Appointed) [2023] FCA 761. On 4 July 2023, I also heard and determined a separate application for certain relief under s 588FM brought by Pit N Portal Mining Services Pty Ltd. Pit N Portal was the secured creditor which had appointed the administrators of Aurora Metals under s 436C of the Act: Pit N Portal Mining Services Pty Ltd v Aurora Metals Ltd (Administrators Appointed) [2023] FCA 762. An effect of the orders made on those applications is that, unless and until varied or set aside, Part 5.3A of the Act is to operate in such a way as to treat the administrators’ appointments as valid. Further, interested parties have until 1 August 2023 to vary or set aside those orders. Those orders were made as a result of the administrators’ concern that, absent an order under s 588FM in respect of the security pursuant to which they were appointed, there may be some doubt about the validity of their appointment under s 436C of the Act.

3    As a consequence of their appointment, the administrators must perform certain duties and functions under Part 5.3A of the Act. Those duties and functions include convening a first meeting of creditors under s 436E and a second meeting of creditors under s 439A of the Act. The administrators have convened and held the first meetings of creditors of the Group Companies. The administrators must convene the second meetings of creditors within 20 days after their appointment unless the convening period is extended by order of the Court. The meetings must be held within five days before or after the end of the convening period. Here, the convening period ends on 29 July 2023. The meeting has not been held and, therefore, must be held on or before 4 August 2023.

4    On 26 July 2023, the administrators filed an originating process by which they have sought an extension of time for convening the second meeting of creditors of each of the Group Companies and certain ancillary orders. The origination process is supported by an affidavit of Mr Richard Scott Tucker sworn 26 July 2023. Mr Tucker is one of the administrators. The administrators also filed an affidavit of Ms Jing Yun Soh sworn 27 July 2023. Ms Soh is a solicitor in the employ of the administrators’ solicitors. The administrators read and relied upon each of those affidavits on the hearing of the application.

Background

5    The background to and circumstances in which the administrators were appointed as administrators of each of the Group Companies on 30 June 2023 are set out in Aurora Metals at [1]-[8] and need not be repeated.

6    On 3 July 2023, Mt Garnet Mineral Finance Pty Ltd, another secured creditor, appointed Mr Philip Campbell-Wilson and Mr Said Jahani joint and several receivers and managers of each of the Group Companies. The Group Companies and administrators were given notice of those appointments on 4 July 2023. As a consequence of the appointment of the receivers, in effect, they are now in control of all property (assets) of the Group Companies.

7    On 7 July 2023, the administrators wrote to the Assistant Secretary of the Department of Employment and Workplace Relations and requested that the relevant Minister exercise power under s 49 of the Fair Entitlements Guarantee Act 2012 (Cth) (FEG Act) to declare that Act to apply to former employees of Aurora Metals as a company under administration under Part 5.3A (FEG Request). In their letter the administrators indicated that they anticipated that the receivers would request that the administrators seek an extension of time to convene the second meeting of creditors and that they expected employee creditors to vote in favour of winding up at that meeting.

8    Broadly, the FEG Act provides a scheme by which former employees with unpaid employee entitlements can apply for financial assistance (called an advance) where the former employer is being wound up and termination of the employment was connected with the insolvency. If certain criteria are met, the Commonwealth must pay an advance to a former employee. The Commonwealth then, in effect, stands in the shoes of the former employee in the winding up of the former employer and may recover the advance through that process. The key point is that any entitlement to an advance is subject to the former employer being wound up. In the context of an administration under Part 5.3A, ordinarily that would require the creditors to vote in favour of winding up the company under administration at the second meeting of creditors. However, pursuant to s 49 of the FEG Act, the Minister may by legislative instrument declare that the FEG Act applies to former employees of a company under administration. The Minister may make such a declaration only if satisfied, amongst other things, that the company’s creditors are expected to resolve at the second meeting of creditors that the company be wound up.

9    Notwithstanding the FEG Request, the Minister has not, as yet, made a declaration under s 49 of the FEG Act. If the second meetings of creditors were deferred, that deferral may provide the Minister with reason to doubt that the creditors will ultimately resolve to wind up the Group Companies or, otherwise, with reason to defer making a decision under s 49 until the likely outcome of the second meetings of creditors becomes more certain. Therefore, from the perspective of former employee creditors, it is in their interests that the Group Companies be wound up sooner rather than later so that they can obtain access to advances under the FEG Act.

10    The first meetings of the creditors of the Group Companies was convened and held on 12 July 2023. None of the creditors objected to the administrators’ appointments at those meetings. Otherwise, the minutes of the meeting are not in evidence and Mr Tucker has not deposed to the business that was conducted at that meeting. There is no evidence that the creditors were informed, at that meeting, that it was likely that the administrators would apply to the Court for an extension of time to convene the second meetings of creditors. I infer that, as of 12 July 2023, the administrators had not formed the view that they would or may apply for an extension of time. However, by 21 July 2023, that position had changed as the administrators then wrote to the receivers and indicated that they then proposed to apply for an extension of time and requested certain information from the receivers relating to the affairs of the Group Companies.

11    On 24 July 2023, the administrators published a circular to creditors in which they indicated that they intended to apply for an extension of time of six months and explained the reasons for their intention to make that application. On 24 and 25 July 2023, the administrators received email correspondence from creditors with employee entitlements, in substance, expressing their opposition to any extension of time. It may be inferred from the views expressed in that correspondence that employee creditors consider it in their best interests that the Group Companies be liquidated as soon as possible for the reasons given earlier.

12    On 24 July 2023, the administrators wrote to two other secured creditors, China Railway Materials (Australia) Pty Ltd and CRLC (Australia) Pty Ltd, through their respective solicitors, and informed them of the administrators’ intention to apply for an extension of time. Those secured creditors responded indicating that each was in favour of the application.

13    On 26 July 2023, the administrators sent an email to creditors notifying them of the time and date of the administrators’ application. The administrators received no response from any creditors indicating that they wished to appear and be heard on the application. No interested person sought to appear when the matter was called on for hearing. Accordingly, the application was heard ex-parte.

14    As already mentioned, the convening period for the second meetings of creditors of the Group Companies is 20 business days beginning on the day after the administration began: s 439A(5)(b). That period ends on 28 July 2023. The meetings must be held within five business days before, or five business days after, that date: s 439A(2).

15    Section 439A(6) provides that the Court may extend the convening period on application. Section 447A provides that the Court may make such order as it thinks appropriate about how Part 5.3A is to operate in relation to a particular company. The administrators have sought an order, under s 439A(6) alternatively s 447A, extending the period of time for convening the second meetings of creditors for six months (28 January 2024). The administrators have also sought an order, under s 447A, modifying the operation of s 439A(2) such that the meeting may be convened at any time up to five days after that date. The effect of such an order in the context of an extension of the convening period is to give the administrator greater flexibility in that the second meeting of creditors can be convened earlier if appropriate in the circumstances.

Applicable principles for extension convening period

16    The principles applicable to an application for an extension of the period for convening a second meeting of creditors are well-established. Banks-Smith J recently summarised them in Algeri (Administrator), in the matter of Murray & Roberts Pty Ltd (Administrators Appointed) (No 2) [2022] FCA 1563 at [8]-[13]:

8    When considering an application to extend the convening period, the Court must have regard to the objects of Part 5.3A set out in s 435A and reach an appropriate balance between the expectation that an administration will be undertaken in a relatively speedy and summary manner with the need to ensure that the administration is not concluded without consideration of sensible and constructive options directed towards maximising the returns for creditors and any return for shareholders: Diamond Press Australia Limited [2001] NSWSC 313 at [10] (Barrett J).

9    The administrator's view on such an application is significant and, particularly where the administration is complex, it should carry weight: In the matter of Renex Holdings (Dandenong) 1 Pty Ltd (administrators appointed) [2015] NSWSC 2002 at [9] (Black J).

10    In considering an application for an extension, the court must take into account the detriment to third parties, including the suspension of rights and remedies of secured creditors, lessors, and others: Shaw and Albarran (Joint and Several Administrators of Home Art Building Group Pty Ltd) v Home Art Building Group Pty Ltd (Administrators Appointed) [2016] WASC 274 (Beech J), where the principles are summarised at [18].

11.    The court has recognised that interests of creditors can be prejudiced not only by delay but also by the convening of premature meetings, where the administrator has been unable to obtain adequate information for the preparation of the administrators' report in a form enabling creditors to make an informed decision: In the matter of Harrisons Pharmacy Pty Limited (Administrators Appointed) (Receivers and Managers Appointed) [2013] FCA 458 at [13] (Farrell J) and the cases there cited.

12    In In the matter of Riviera Group Pty Ltd (admins apptd) (recs and mgrs apptd) [2009] NSWSC 585 at [13], Austin J identified the following relevant categories of cases in which an extension had been granted:

(a)    where the extension will allow the sale of the business as a going concern;

(b)    where the size and scope of the business in administration is substantial; and

(c)    more generally, where additional time is likely to enhance the return for unsecured creditors.

13    In Mighty River International Limited v Hughes [2018] HCA 38; (2018) 265 CLR 480, Nettle and Gordon JJ (in dissent, but not relevantly in this respect) cited many of the authorities in the area and observed:

[73]    Generally speaking, courts have been disposed to grant substantial extensions in cases where the administration has been complicated by, for example, the size and scope of the business, substantial offshore activities, large numbers of employees with complex entitlements, complex corporate structures and intercompany loans, and complex recovery proceedings, and, more generally, where the additional time is likely to enhance the return to unsecured creditors. Provided the evidentiary case for extension has been properly prepared, there has been no evidence of material prejudice to those affected by the moratorium imposed by the administration, and the administrator's estimate of time has had a reasonable basis, the courts have tended to grant extensions for the periods sought by administrators.

(footnote omitted)

Grounds for extension of time

Work administrators have performed

17    As Banks-Smith J observed in Murray & Roberts (No 2) at [15], ‘[i]n assessing whether an extension of time should be granted, it is relevant to have some regard to the nature and intensity of work that has been necessary for the Administrators to undertake since their appointment and during the limited period prescribed by the legislation’. Mr Tucker deposed to the nature and intensity of that work in his affidavit in support of the application. That work, in summary, was as follows.

(a)    The focus of the administrators has been on understanding the financial position of the Group Companies, attending to all necessary statutory notifications, dealing with numerous statutory authorities, attending to matters relating to various court proceedings, engaging with various stakeholders and convening and holding the first meeting of creditors of each of the Group Companies pursuant to s 436E of the Act.

(b)    The administrators have attended to the statutory duties, including informing the Australian Securities and Investments Commission of the appointment of the administrators.

(c)    The administrators gave notice of their appointment to the former directors, employees, secure creditors and creditors who have lodged a registration of security interests against the Group Companies on the Personal Properties Securities Register.

(d)    The administrators reviewed the available books and records of the Group Companies and liaised with the directors for the purpose of understanding the business, property and affairs of the Group Companies and commenced a review of the financial position of the Group Companies.

(e)    The administrators requested both current and former directors of the Group Companies to complete a report on company affairs and property (ROCAP). However, the ROCAP has not been provided to them.

(f)    The administrators liaised with the Group Companies actual or potential secured creditors in relation to those parties' actual or potential security interests over the assets of the Group Companies.

(g)    The administrators commenced investigating the business, property and affairs of the Group Companies and the reasons for its failure. However, that investigation has been limited by lack of access to the books and records of the Group Companies and non-provision of the requested ROCAP.

(h)    The administrators addressed queries from creditors and employees, including to discuss the nature and implications of the appointment of the administrators.

(i)    The administrators also:

(i)    arranged for the administrators' staff to attend the headquarters of the Group Companies in Sydney;

(ii)    initiated preparing a care and maintenance plan with key personnel;

(iii)    made inquiries to obtain legal advice on and assistance with respect to the issues concerning an environmental protection order issued to Aurora Metals by the chief executive of the Department of Environment and Science (Queensland) on 21 March 2023 (EPO);

(iv)    liaised with the employees to undertake an inspection of the Mt Garnett mine site by the administrators' staff to gain an understanding of the requirements and obligations listed in the EPO;

(v)    attempted to stabilise the operations at the mine site, including but not limited to, engaging with the supplier of electricity to have power reconnected at a mine site where power had been disconnected and with the fuel supplier of Group Companies to obtain fuel at the various mine sites;

(vi)    sent the FEG Request to the Department;

(vii)    participated in two s 588FM applications filed by secured creditors;

(viii)    prepared for and conducted the first meeting of creditors of the Group Companies on 12 July 2023; and

(ix)    attended to other incidental matters.

18    After the appointment of the receivers, the administrators focused on providing an orderly handover to the receivers. In that respect, the administrators have been working closely and in discussion with the receivers on various matter relating to the affairs and operations of the Group Companies, including issues relating to the EPO and FEG Request.

Administrators’ report and statement of opinion

19    Rule 75-225(2)(a) of the Insolvency Practice Rules (Corporations) 2016 (Cth) (IPR) requires the notice convening a second meeting of creditors to be accompanied by:

(a)    a report to the creditors about the company’s business, property, affairs and financial circumstances; and

(b)    a statement setting out, amongst other things, whether in the administrators’ opinion, it would be in the creditors’ interests for the company: to execute a deed of company arrangement; or for the administration to end; or for the company to be wound up.

The evident purpose of the administrators’ report and statement, including the opinions, is to inform the creditors’ decision at the second creditors meeting on each of the three things the creditors may decide under s 439C of the Act.

20    Mr Tucker deposed that an extension of time is required because the administrators have made limited progress in their investigation into the business, property and affairs of the Group Companies for two principal reasons. First, the administrators have had limited access to books and records of the Group Companies. Second, Mr Tucker deposed that the directors have not provided the administrators with the report referred to as the ROCAP.

21    Section 438B(2) provides that within five business days after the administration of a company begins, or within such longer period as the administrator allows, the directors must give to the administrator a report in the prescribed form about the company’s business, property, affairs and financial circumstances. The administrators have extended the period for the provision of the ROCAP up to 28 July 2023 (the end of the convening period).

22    I infer that, due to the lack of information, any report to the creditors the administrators were to prepare at this time would be of limited assistance to inform them as to the business, property, affairs and financial circumstances of the company. Further, the administrators would not be able to provide creditors with an informative statement of the opinions of the nature contemplated by r 75-225(2)(a) of the IPR.

Receivership

23    By letter dated 25 July 2023, the receivers, amongst other things, provided their response to the administrators’ request for information. In summary, the receivers made statements to the following effect.

(a)    The receivers have identified and taken steps to address certain preliminary operational matters through engagement with Queensland and Commonwealth government agencies in relation to the Group Companies and various mine sites.

(b)    The receivers have taken steps to make secure and safe the various mine sites, including making arrangements to deal with explosives, cyanide and reagents, put in place insurance, conducted site inspections, rationalised the work force and started the process of securing continuing services of certain employees for the duration of the receivership.

(c)    The receivers have been engaging with the Department concerning rights under the FEG Act.

(d)    With respect to the EPO referred to above, the receivers have developed a preliminary project plan to address the EPO.

(e)    The receivers have initiated a care and maintenance program at each of the various mine sites and have engaged Pit N Portal to assist with the maintenance program.

(f)    The receivers are continuing to undertake investigations concerning the assets subject to the receivership, including:

(i)    the mining and exploration activities previously undertaken by the Group Companies in relation to the various mine sites;

(ii)    the mine outputs that had previously been extracted from the mine sites and the location of them;

(iii)    any royalties payable by the Group Companies;

(iv)    the mining tenements held by the Group Companies;

(v)    the plant and equipment of the Group Companies; and

(vi)    the security interests granted by Group Companies to various secured creditors.

(g)    The receivers anticipate undertaking a ten-week process for any sale of the assets and (or) recapitalisation of the Group Companies (realisation process). The realisation process has three phases, with a first phase expected to commence in the week beginning 31 July 2023 and a third phase to be completed at the end of the tenth week. While the receivers have identified a number of parties who may be interested in the assets of the Group Companies, they were of the view that the realisation process may extend beyond the estimated time frames for a number of reasons.

(h)    The receivers are in support of the application for an extension of the convening period up to 31 January 2024 because the extension would allow:

(i)    further time for the receivers to undertake its investigation concerning the assets subject to the receivership;

(ii)    further time for the receivers to address the environmental law issues; and

(iii)    an extensive realisation process to be undertaken and completed.

Administrators’ view

24    Mr Tucker deposed that it is his opinion (and that of his co-administrators) that it is in the best interests of the Group Companies that there be a six month extension of the convening period to allow:

(a)    the administrators to complete their investigations in the business, property and affairs of the Group Companies; and

(b)    the receivers to stabilise operations of the Group Companies and conduct an orderly and fulsome sale of assets and (or) recapitalisation of the companies.

25    Mr Tucker deposed that it is his opinion (and that of his co-administrators) that receivers stabilising operations, selling assets and (or) recapitalising companies will maximise the chance of the Group Companies’ businesses, or as much as possible of those businesses, continuing in existence as well as the possibility of a greater return to the majority of creditors of the Group Companies than would result from an immediate winding up of them. I infer that ‘recapitalisation’ may result in a proposal or proposals for a DOCA or a scheme of arrangement in the future whereas there is not presently any DOCA proposal upon which the administrators can opine or creditors can vote at the second meetings of creditors.

Extension appropriate

26    While there is no evidence before the Court concerning the financial position of the Group Companies, including the extent of the secured and unsecured debts and assets of the Group Companies from which some gauge of the prospects of the Group Companies' businesses continuing after the receivership might be made, I have placed significant weight on the opinions Mr Tucker has expressed, as an experienced insolvency practitioner. His opinions to the effect that the activities of the receivers will maximise the chance of the Group Companies' businesses, or as much as possible of their businesses, continuing to exist and those activities will maximise the possibility of a greater return to the majority of the creditors of the Group Companies than would result from an immediate winding up are significant and persuasive. While Mr Tucker has not elaborated on the bases for his opinion, I infer, that, amongst other things, permitting the receivers to conduct an orderly and fulsome realisation process in an environment in which the Group Companies are not in liquidation is likely to be advantageous to the realisation process and maximise the potential sale prices of the assets and (or) the attractiveness of recapitalisation of businesses such that they may continue in existence. Likewise, I place weight on the statement of the receivers in their letter to the administrators to the effect that they support an extension of time and that it would allow the receivers, in effect, further time to stabilise the assets of the Group Companies and carry out a realisation process and, inferentially, maximise the value received from the Group Companies' assets.

27    I also take into account that the administrators' investigations have been hampered and delayed because access to the books and records has been limited and the ROCAP has not been provided. In these circumstances, the administrators are unlikely to be in a position to provide an administrators' report and statement that is adequately informative to creditors, in particular, to arrive at the opinions referred to in r 75-225(3)(b)(i), (ii), (iii) of the IPR, for the purposes of a s 439C decision, that are meaningful and informative for creditors.

28    I accept and take into account that in considering whether to extend the convening period, the Court must have regard to the objects of Part 5.3A set out in s 453A and reach an appropriate balance between the expectation that an administration will be undertaken in a relatively speedy and summary manner with a need to ensure that the administration is not concluded without consideration of sensible and constructive options directed towards maximising returns to creditors and any return for shareholders. The object, after all, of Part 5.3A as expressed in s 453A 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, that results in a better return for the company's creditors and members than would result from an immediate winding up of the company. I appreciate that any deferral of the creditors' decision at a second meeting of creditors under s 439A will have the effect of deferring any rights of former employees under the FEG Act to advances to which they would be entitled if the creditors were to vote in favour of the Group Companies being wound up. Nonetheless, while it may be in the interests of one group of creditors that the company be wound up immediately, the administrators, and the Court, must take into account the best interests of the creditors as a whole. In the circumstances of this case, I am satisfied that the best interests of the creditors as a whole is to extend the convening period.

29    I am, however, concerned that the requested extension of six months is, in all the circumstances, excessive. The evidence justifying an extension of that magnitude is rather thin. In all the circumstances, allowing for the receivers to stabilise the assets of the Group Companies and to conduct an orderly sale of assets and (or) recapitalisation of the Group Companies, in my view, an extension of four months is more appropriate.

Conclusion

30    Orders will be made in terms of the application to extend the period for convening the second creditors' meeting, save that the period of extension will be four and not six months.

Associate:

Dated:    31 July 2023

SCHEDULE OF COMPANIES

AUCTUS CHILLAGOE HOLDINGS PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 605 053 610)

AUCTUS MINERALS PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 602 411 852)

CTM ALLUVIAL MINING PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 137 305 947)

SURVEYOR MINING PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 601 108 776)

COLINACOBRE PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 601 312 207)

AUCTUS CHILLAGOE PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 605 055 285)

AUCTUS RESOURCES PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 136 606 338)

NYNGAN GOLD PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 154 650 585)

VISION EXPLORATION PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 161 881 018)

TWILIGHT EXPLORATION PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 161 880 995)

THESAURUS EXPLORATION PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (ACN 163 781 342)