Federal Court of Australia

Park, in the matter of IG Power (Callide) Ltd (Administrators Appointed) (No 2) [2024] FCA 1244

ORDERS

THE COURT ORDERS THAT:

LIMITATION OF LIABILITY

Limitation of Administrators’ personal liability – Funding Deed

1.    Pursuant to s 447A(1) of the Corporations Act 2001 (Cth) (Corporations Act) and s 90-15 of the IPSC, Part 5.3A of the Corporations Act is to operate in relation to the Second to Fifth Plaintiffs as if s 443A(1) of the Corporations Act provides that:

(a)    the liabilities of the First Plaintiffs (Administrators) incurred with respect to any obligations arising out of, or in connection with, the Funding Deed dated 20 August 2024 between the Administrators, the Fifth Plaintiff (IGPC) and Sev.en Global Investments a.s. (Funding Deed), including monies borrowed, interest incurred in respect of monies borrowed and borrowing costs, are in the nature of debts incurred by the Administrators in the performance and exercise of their functions as joint and several administrators of IGPC; and

(b)    notwithstanding that the liabilities in order 1(a) are debts or liabilities incurred by the Administrators in the performance and exercise of their functions as joint and several administrators of IGPC, the Administrators will not be personally liable to repay such debts or satisfy such liabilities to the extent that the assets of IGPC are insufficient to satisfy the debts and liabilities incurred by the Administrators arising out of, or in connection with, the Funding Deed.

Limitation of Administrators’ personal liability – Market Trader Agreement

2.    Pursuant to s 447A(1) of the Corporations Act and s 90-15 of the IPSC, Part 5.3A of the Corporations Act is to operate in relation to the Second to Fifth Plaintiffs as if s 443A(1) of the Corporations Act provides that:

(a)    the liabilities of the Administrators incurred with respect to any obligations, arising out of, or in connection with, the Market Trader Agreement dated 11 May 1998 between Callide Power Trading Pty Limited and IGPC, including:

(i)    cash calls issued by Callide Power Trading Pty Limited;

(ii)    any associated interest;

(iii)    any amounts on account of tax, including but not limited to, goods and services tax; and

(iv)    any associated costs,

are in the nature of debts incurred by the Administrators in the performance and exercise of their functions as joint and several administrators of IGPC; and

(b)    notwithstanding that the liabilities in order 2(a) are debts or liabilities incurred by the Administrators in the performance and exercise of their functions as joint and several administrators of IGPC, the Administrators will not be personally liable to repay such debts or satisfy such liabilities to the extent that the assets of IGPC are insufficient to satisfy the debts and liabilities arising out of, or in connection with, the Market Trader Agreement.

Limitation of Administrators’ personal liability – Connection Agreement

3.    Pursuant to s 447A(1) of the Corporations Act and s 90-15 of the IPSC, Part 5.3A of the Corporations Act is to operate in relation to the Administrators and the Second to Fifth Plaintiffs as if s 443A(1) of the Corporations Act provides that:

(a)    the liabilities of the Administrators incurred with respect to any obligations, arising out of, or in connection with, the Connection Agreement (For Connection to a Transmission Network) between Queensland Electricity Transmission Corporation limited (ACN 078 849 233) trading as Powerlink Queensland (Powerlink), Callide Energy Pty Ltd (ACN 082 468 746) and IGPC, including for any amounts payable to Powerlink for the supply of electricity, are in the nature of debts incurred by the Administrators in the performance and exercise of their functions as joint and several administrators of IGPC; and

(b)    notwithstanding that the liabilities in order 3(a) are debts or liabilities incurred by the Administrators in the performance and exercise of their functions as joint and several administrators of IGPC, the Administrators will not be personally liable to repay such debts or satisfy such liabilities to the extent that the assets of IGPC are insufficient to satisfy the debts and liabilities arising out of, or in connection with, the Connection Agreement.

Suppression and/or non-publication order in relation to Funding Deed and Market Trader Agreement and Connection Agreement

4.    Until the conclusion of the external administration of the Second to Fifth Plaintiffs, or further order of the Court, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground stated in s 37AG(1)(a), being that the order is necessary to prevent prejudice to the proper administration of justice:

(a)    Confidential Exhibit JRP-1 to the affidavit of John Richard Park affirmed 6 September 2024; and

(b)    the written submissions relied upon by the Plaintiffs on this application to the extent they refer to the content of Confidential Exhibit JRP-1,

be kept confidential and not be provided or disclosed to any person other than:

(c)    any Judge of this Court, and that Judge’s staff and assistants;

(d)    the Plaintiffs and their legal representatives; and

(e)    Sev.en Global Investments a.s. and its legal representatives.

5.    Until the conclusion of the external administration of the Second to Fifth Plaintiffs, or further order of the Court, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground stated in section 37AG(1)(a), being that the order is necessary to prevent prejudice to the proper administration of justice:

(a)    Confidential Exhibit JRP-2 to the affidavit of John Richard Park affirmed 6 September 2024; and

(b)    the written submissions relied upon by the Plaintiffs on this application to the extent they refer to the content of Confidential Exhibit JRP-2,

be kept confidential and are not to be provided or disclosed to any person other than:

(c)    in respect of the Market Trader Agreement and documents related to the Market Trader Agreement contained within Confidential Exhibit JRP-2, and any related written submissions, the counterparties to the Market Trader Agreement;

(d)    in respect of the Connection Agreement and documents related to the Connection Agreement contained within Confidential Exhibit JRP-2, and any related written submissions, the counterparties to the Connection Agreement;

(e)    any Judge of this Court, and that Judge’s staff and assistants; and

(f)    the Plaintiffs and their legal representatives.

Other orders

6.    The Plaintiffs’ costs of and incidental to this application are to be treated as costs in the administration of IGPC and be paid out of the assets of IGPC.

7.    Any person who can demonstrate a sufficient interest to discharge or modify these orders has liberty to apply on 3 business days’ written notice to the Plaintiffs and the Court.

8.    The Administrators have liberty to apply on 1 business days’ notice, specifying the relief sought.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    This application is brought by Mr John Park and Mr Benjamin Campbell in their capacity as joint and several administrators of the second to fifth plaintiffs, IG Energy Holdings (Australia) Pty Ltd (Administrators Appointed), IG Power Holdings Ltd (Administrators Appointed), IG Power Marketing Pty Ltd (Administrators Appointed) and IG Power (Callide) Ltd (Administrators Appointed) (IGPC) (the Companies). They seek orders pursuant to s 447A of the Corporations Act 2001 (Cth) (Corporations Act) and s 90-15 of the Insolvency Practice Schedule (Corporations) (being Sch 2 to the Corporations Act) (IPS), relieving them from personal liability in respect of certain debts which have been incurred or are expected to be incurred in the future.

2    In broad and general terms, the orders which the administrators seek are of a type often sought by administrators in the position in which Mr Park and Mr Campbell currently find themselves. That is to say, in the administration of substantial companies, or groups of companies, administrators are required to continue agreements, or enter into new agreements, with the risk of exposing themselves to personal liability above and beyond that which might be indemnified from the assets of the companies in administration. As a result, they often seek orders pursuant to the Corporations Act and the IPS which will limit any such liability, either in whole or in part. In the present case, the administrators seek to limit their liability in whole. Previously, orders have been made relieving them of personal liability in respect of other pre-administration contracts and post-administration contracts. The reasons for the making of those orders can be found in Park, in the matter of IG Power (Callide) Ltd (Administrators Appointed) [2024] FCA 1012 (IG Power (Callide)).

3    The liabilities in respect of which the administrators now seek relief are of two types:

(a)    the indebtedness arising under a Funding Deed between the administrators, IGPC, and Sev.en Global Investments a.s. (Sev.en Global) dated 20 August 2024, entered into during the course of the administration; and

(b)    debts incurred or to be incurred under two pre-administration operational contracts:

(i)    a Market Trader Agreement between IGPC and Callide Power Trading Pty Ltd (CPT) dated 11 May 1998; and

(ii)    a Connection Agreement dated 28 January 1999, entered into between Queensland Electricity Transmission Corporation Limited (trading as Powerlink Queensland) (Powerlink) on the one hand, and Callide Energy Pty Ltd (CEPL) and IGPC on the other. That agreement provides for connection from the Callide power station to a transmission network.

4    By their affidavit material, the administrators established that all creditors of the Companies have been notified of the present application. No party appeared at the hearing to oppose the orders sought.

Background

5    The general background to these proceedings was summarised in the reasons concerning the administrators’ previous application for orders limiting their personal liability and there is no need to repeat them on this occasion: see IG Power (Callide) [6] – [13]. It is, however, important to note a few salient facts.

6    First, IGPC and CEPL are joint venturers pursuant to the Joint Venture Agreement dated 11 May 1998 (as amended), for the purpose of operating the Callide Power Station. Relevantly, the manager appointed under the Joint Venture Agreement is required to submit to each joint venturer an estimate of the aggregate cash amounts each of them will be required to pay in respect of the operating costs of the power station in the coming months, or in respect of which costs have already been incurred. These are referred to as “cash calls”. Each of IGPC and CEPL must pay those cash calls by the date specified in the notices, and the sums identified in each of the cash calls become a debt due and owing by IGPC and CEPL to the manager as at the date specified.

7    The material shows that a similar process arises under the Market Trader Agreement. Under it, IGPC has appointed CPT as its exclusive agent for the sale of its share of electricity generated from the power station, and CEPL has done the same under a separate agreement. Relevantly, Schedule 3 of the Market Trader Agreement sets out relevant accounting procedures, including the process by which CPT calls forward cash advances from IGPC for the operations conducted as agent for it. The calls so made must also be paid by IGPC (and CEPL under its separate agreement). Although the amounts payable by the joint venturers which CPT might call upon are generally identified in advance, variations will necessarily occur, such that the amounts may increase from time to time from that which are anticipated.

8    Overlaying this application is the issue of CEPL’s enforcement rights under a Joint Venture Deed of Cross-Charge between IGPC, CEPL and the manager under the joint venture. Pursuant to that arrangement, CEPL has directed CPT to pay to the manager any funds payable to IGPC under the Market Trader Agreement. Consequently, any cash which is received by, or due to, IGPC from trading is “swept up” and directed towards CEPL in respect of IGPC’s existing indebtedness. That, however, does not account for the totality of IGPC’s indebtedness and on-going expenses in relation to the joint venture. In this respect, particular reference is made to its liability to remit goods and services tax to the Australian Taxation Office. Ultimately, the operation of the Market Trader Agreement and the Deed of Cross-Charge raises not insignificant questions concerning the liability of the administrators.

9    Similar issues arise in relation to the Connection Agreement, pursuant to which IGPC and CEPL agree to supply electricity generated from the power station to the transmission network operated by Powerlink. Importantly, each of IGPC and CEPL are separately liable for their financial obligations under the Connection Agreement (each being liable for 50 per cent of the costs consistent with their interest in the power station). Among those financial obligations is a substantial monthly generator connection charge.

10    At the time of the appointment of the current administrators, being 27 June 2024, it was apparent that the Companies had insufficient funds to meet all ongoing operational liabilities. Although, prior to the entry into the Funding Deed, the administrators held approximately $35.4 million dollars in cash in a bank account for the Companies, that amount was expected to have been exhausted by late August if funding was not obtained.

11    With this anticipated shortfall of funds, the administrators engaged Houlihan Lokey to conduct a campaign for the purpose of obtaining proposals for future funding, as well as for seeking proposals for a sale or recapitalisation of all or part of the group of the Companies, though only the former is of particular relevance on this application. That campaign resulted in the administrators entering into the Funding Deed with Sev.en Global on 20 August 2024. They held the view that it represented the best proposal of the several received following upon the competitive market process.

12    Mr Park deposed that the entry into the Funding Deed was necessary to meet the liabilities accruing up to the end of the convening period on 31 October 2024. In particular, he estimated that future cash calls under the Joint Venture Agreement between now and that convening period will total approximately $58.5 million. Further, it is expected that further liabilities will be incurred under the Market Trader Agreement, and that further substantial invoices will be issued under the Connection Agreement.

Orders limiting the administrators’ personal liability

Applicable principles

13    Pursuant to s 443A of the Corporations Act, an administrator is generally liable for the debts incurred in the course of an administration. Section 443A 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.

14    Section 443D provides that the administrator is entitled to be indemnified out of the company property for any debts which are incurred, for which the administrator is liable under 443A, and for any other debts incurred in good faith and without negligence. That limited right of indemnity necessarily exposes an administrator to personal liability where there is an insufficiency of assets to satisfy any indemnity.

15    It is now well established that s 447A of the Corporations Act empowers the Court in appropriate cases to modify the operation of Pt 5.3A of the Corporations Act so as to exclude or limit an administrator’s personal liability for any debts incurred: see IG Power (Callide) [20]. The foundation for the making of such an order is that administrators should not be expected to incur substantial personal liabilities or, at least, the risk of them, in the undertaking of work for the ultimate benefit of creditors: Algeri (Administrator), in the matter of Murray & Roberts Pty Ltd (Administrators Appointed) [2022] FCA 1506 [47] (Murray & Roberts); In the matter of Renex Holdings (Dandenong) 1 Pty Ltd (administrators appointed) [2015] NSWSC 2003 [13]; Preston, in the matter of Hughes Drilling Limited (Administrators Appointed) [2016] FCA 1175 [18]. The making of such orders allows an administrator to continue the commercial operations of the company in question, uninfluenced by possible concerns of personal liability. This necessarily allows them to focus on the best outcome for the company’s creditors: Secatore, in the matter of Fletcher Jones and Staff Pty Ltd (Administrators Appointed) [2011] FCA 1493 [29].

16    In this respect, reference was made to Re Mentha (in their capacities as joint and several administrators of the Griffin Coal Mining Company Pty Ltd (admins apptd) (2010) 82 ACSR 142, where Gilmour J set out the principles governing the grant of an application for orders under s 447A at 146 [30]:

The principles governing the granting of an application for orders under s 447A to vary the liability of administrators under s 443A can be summarised as follows:

(a)    the proposed arrangements are in the interests of the company’s creditors and consistent with the objectives of Pt 5.3A of the Corporations Act: Re Great Southern at [13].

(b)    typically the arrangements proposed are to enable the company’s business to continue to trade for the benefit of the company’s creditors: Re Malanos at [9] and Re View at [17].

(c)    the creditors of the company are not prejudiced or disadvantaged by the types of orders sought and stand to benefit from the administrators entering into the arrangement: Re View at [18], and also Re Application of Fincorp Group Holdings Pty Ltd [2007] NSWSC 628 at [17].

(d)     notice has been given to those who may be affected by the order: Re Great Southern at [12].

17    As his Honour observed (at 146 [31]), most instances where the courts have exercised the power under s 447A have involved funding agreements entered into by administrators with external parties in relation to the costs of the administration. The relief from liability granted typically has the effect of limiting recourse of the counterparty against the administrator to the extent to which they are able to be indemnified from the assets of the company in administration. Nevertheless, the power of the Court under s 447A is not so limited and extends to relieving the personal liability of an administrator in respect of any contract which enables the company to continue to trade for the ultimate benefit of the creditors: Re Strawbridge (in their capacity as joint and several voluntary administrators of each of Virgin Australia Holdings Ltd (admins apptd)) (No 2) (2020) 144 ACSR 347, 388 [91].

18    Necessarily, whilst the power of the Court is broad, it is not unlimited: see Correa v Whittingham (2013) 278 FLR 310, 314 – 315 [2] – [8]. It is required to be exercised for the purpose for which it was granted, being that articulated in s 435A of the Corporations Act — that a company and its business be administered in a way that maximises the chances of the company 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: Murray & Roberts [45].

19    Ultimately, the most important consideration is that the company’s creditors are not prejudiced or disadvantaged by the Court’s exercise of power.

20    Each of the orders sought by the administrators are addressed in turn below.

The Funding Deed

21    The first order, being that sought by prayer 1 of the interlocutory process, relates to the administrators’ liability under the Funding Deed. The administrators hold the view that the Funding Deed is in the best interests of, and will not cause prejudice to, IGPC’s creditors, or any other companies in the group. In their view, continuing the business as a going concern maximises the chances of achieving a recapitalisation and will permit them to continue investigations with a view to identifying claims which IGPC may have against third parties. Such claims may potentially increase any return to creditors. The potential availability of such claims has been a live issue in the several pieces of litigation that have occurred to date in relation to the Callide Power Station, and it is undoubted that the administrators’ investigations are a matter of substantial importance. In the alternative, if the administrators are exposed to liability in connection with the Funding Deed, they are of the view that their investigations will cease and the Companies will be wound up. In the circumstances, the making of orders limiting the administrators’ liability in relation to their exposure under the Funding Deed is consistent with the objects of Pt 5.3A of the Corporations Act.

22    A second feature of the Funding Deed supports the making of the orders sought. However, a confidentiality order has been made in relation to that aspect of the agreement, and there is no need to detail it to any extent. Nonetheless, it should be recognised that funding agreements of this nature are now commonplace for administrators and there is nothing unusual or exceptional about the entry into such an agreement in the present circumstances.

23    In the mentioned circumstances, it is appropriate to make orders in relation to the administrators’ liability in connection with the Funding Deed in the terms proposed by prayer 1 of the interlocutory process.

The Market Trader Agreement and the Connection Agreement

24    By prayers 2 and 3 of the interlocutory process, the administrators seek orders limiting their liability in connection with the Market Trader Agreement and the Connection Agreement. Each of these agreements is essential to the ongoing operation of the business of the Companies and the administrators must necessarily keep them going in order to be in a position to sell IGPC’s business or allow for its re-capitalisation.

25    In such circumstances, there are two main reasons why those orders should be made. The first is that, although the funding the subject of the Funding Deed covers what the administrators expect to be the liabilities under those agreements up until the end of the convening period, the administrators are otherwise exposed. That is, to the extent that the forecasts of the liabilities to be incurred under those agreements prove to be inaccurate, or there are significant additional costs which are not presently anticipated, the administrators will, by reason of s 443A, be personally liable for any shortfall in their indemnity. Further, as alluded to above, it is conceivable that IGPC, and therefore the administrators, will be liable to remit goods and services tax to the Australian Taxation Office under the Market Trader Agreement, despite CEPL having enforced its security and directing CPT to cash sweep IGPC’s entitlements. In those circumstances, the administrators will again be faced with an additional substantial liability not capable of being indemnified under the Funding Deed or from the assets of the Companies.

26    The second reason for making the order is that the counterparties to the Market Trader Agreement and the Connection Agreement, being CPT, Powerlink and CEPL, are creditors of the Companies and have been notified of the application. Significantly, they did not appear to oppose the making of the orders.

27    For these reasons, the administrators ought to be protected from personal liability for any debts arising under the Market Trader Agreement and the Connection Agreement.

Entitlement of third parties to contest the orders made

28    Despite the foregoing, it must be kept in mind that the making of orders of this nature may interfere with the rights of persons or entities not presently before the Court. It is appropriate to make provision to permit any person who can demonstrate a sufficient interest in any of the orders made, particularly if the orders operate to their detriment, to apply to the Court to modify them. That is a usual order on applications of the present kind, and it is an appropriate precautionary step in the circumstances.

Confidentiality orders

29    By prayers 4 and 5 of the interlocutory process, the administrators also seek suppression and non-publication orders in relation to parts of certain documents, namely the Funding Deed, the Market Trader Agreement and the Connection Agreement, and those parts of the written submissions which referred to the content of those documents.

30    The source of the power for making such orders is s 37AF(1)(b)(1) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), which provides that the Court may, by making a suppression order or non-publication order on the grounds permitted, prohibit or restrict the publication or other disclosure of information that relates to a proceeding before it and is information that comprises evidence or information about evidence. One of the particular grounds on which the Court is empowered to make such an order is where it is necessary to prevent prejudice to the proper administration of justice: s 37AG(1)(a) of the Federal Court Act.

31    There is a clear public interest in the due and beneficial administration of the Companies for the benefit of their creditors. To that end, it is recognised that commercially confidential information should be protected: see Killer, in the matter of Scooter Group Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed) [2023] FCA 320 [50] – [54], citing Hill, in the matter of Autocare Services Pty Ltd (administrators appointed) [2021] FCA 167 [53] and Vickers, in the matter of JM Kelly Builders Pty Ltd (in liquidation) (No 2) [2019] FCA 1789 [7].

32    In relation to the Funding Deed, the administrators have given evidence that its terms are commercially and market sensitive, and there is no reason to dispute that. It is particularly important to preserve that information in circumstances where there has been substantial litigation between the several protagonists involved in the Callide Power Station. There is a real risk that disclosure of the full terms of the Funding Deed might advance the interests of one group over another. Further, the Deed relates to the relationship between the Companies and Sev.en Global, which is not information generally available in the public domain. In addition, if it becomes necessary to extend the convening period of the administrations, a further competitive and confidential market process might need to be conducted to secure further funding. As the administrators submitted, it is important to maintain confidentiality in the Funding Deed to preserve the integrity of the market process, should further funding be required.

33    In relation to the Market Trader Agreement and the Connection Agreement, Mr Park deposed that the documents are not currently in the public domain and are not otherwise publicly available. If they were to become available, any potential purchasers of the businesses of the group of the Companies may use the information contained in them to inform the price at which they are willing to purchase the businesses, with the result being that any disclosure would be prejudicial to the sales process. Again, each of those matters support the making of confidentiality orders.

34    There is a clear public interest in protecting the confidential information contained in the agreements. While it may be that not every part of the material the subject of the confidentiality orders sought is of a commercially confidential and sensitive nature, it would not serve the interests of justice to require the liquidators to spend time and money to identify particular portions of the material that should be the subject of the order. It is noted that none of the parties before the Court opposed the making of such orders. That is not surprising given the obvious appropriateness of there being some confidentiality in this case.

35    In the circumstances, the confidentiality orders sought should be made. It is appropriate that the orders extend to the written submissions of the administrators which necessarily referred to sensitive information in the relevant agreements.

Costs

36    There is no reason why the administrators’ costs of and incidental to the application should not be treated as costs in the administration of IGPC and paid out of its assets.

Associate:    

Dated:    29 October 2024

SCHEDULE OF PARTIES