Federal Court of Australia

Park, in the matter of IG Power (Callide) Ltd (Administrators Appointed) (No 4) [2024] FCA 1316

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) (being Sch 2 to the Corporations Act 2001 (Cth)), the first plaintiffs (administrators) in their capacity as joint and several administrators of the second to fifth plaintiffs (IG Power Group) are justified in conducting the administrations of the companies within the IG Power Group on the basis that a sale of shares in:

(a)    IG Power Holdings Limited (Administrators Appointed) (by IG Energy Holdings (Australia) Pty Ltd (Administrators Appointed)); or

(b)    IG Power (Callide) Ltd (Administrators Appointed) (by IG Power Holdings Limited (Administrators Appointed));

whether by way of a deed of company arrangement or otherwise, does not:

(c)    engage any obligation of any IG Power Group entity under cll 9.1, 9A or 9B of the Joint Venture Agreement dated 11 May 1998 (as amended from time to time) (JVA); or

(d)    constitute a breach by any entity within the IG Power Group of those clauses, cll 2.10 or 2.12(d), or any implied obligation to act in good faith or for IG Power (Callide) Ltd (Administrators Appointed) to do what is necessary to procure that IG Energy Holdings (Australia) Pty Ltd (Administrators Appointed) or IG Power Holdings Limited (Administrators Appointed) comply with the JVA.

2.    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.

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

4.    The plaintiffs’ costs of and incidental to this application are to be treated as costs in the administration of the second to fifth plaintiffs and be paid out of the assets of the second to fifth plaintiffs.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    By an interlocutory application filed on 6 September 2024 and amended on 3 October 2024, the administrators of IG Energy Holdings (Australia) Pty Ltd (Administrators Appointed) (IGEH), IG Power Holdings Ltd (Administrators Appointed) (IGPH), IG Power Marketing Pty Ltd (Administrators Appointed) and IG Power (Callide) Ltd (Administrators Appointed) (IGPC) (together, the “IG Power Group”) seek a direction under s 90-15 of the Insolvency Practice Schedule (Corporations) (being Sch 2 to the Corporations Act 2001 (Cth)) (IPS) in the following terms:

A direction that the First Plaintiffs (Administrators) in their capacity as joint and several administrators of the Second to Fifth Plaintiffs (IG Power Group) are justified in conducting the administrations of the companies within the IG Power Group on the basis that a sale of shares in:

(a)     IG Power Holdings Limited (Administrators Appointed) (by IG Energy Holdings (Australia) Pty Ltd (Administrators Appointed)); or

(b)     IG Power (Callide) Ltd (Administrators Appointed) (by IG Power Holdings Limited (Administrators Appointed)),

whether by way of a deed of company arrangement or otherwise, does not:

(c)    engage any obligation of any IG Power Group entity under clauses 9.1, 9A or 9B of the Joint Venture Agreement dated 11 May 1998 (as amended from time to time) (JVA); or

(d)    constitute a breach by any entity within the IG Power Group of those clauses, or clauses 2.10 or 2.12(d), or any implied obligation to act in good faith or for IG Power (Callide) Ltd (Administrators Appointed) to do what is necessary to procure that IG Energy Holdings (Australia) Pty Ltd (Administrators Appointed) or IG Power Holdings Limited (Administrators Appointed) comply with of the JVA.

(Bold and underlining in original).

2    All the creditors of the companies under administration were informed of the proceedings and only Callide Energy Pty Ltd (CEPL) sought to be heard in relation to the proposed direction. The involvement of CEPL was not unexpected given that it is a party to the referenced Joint Venture Agreement (JVA), and it anticipates that its interests may be affected by the administrators conducting the administrations on the basis indicated. In particular, it is concerned that the manner in which the administrators intend to deal with certain rights and interests of the companies under administration, will interfere with certain rights of pre-emption which it claims to have under the JVA between it and IGPC.

Background

3    There is no need to delve too deeply into the background concerning the appointment of Mr John Park and Mr Benjamin Campbell as administrators of the IG Power Group, though some of the detail is not inappropriate.

4    Central to the resolution of the issues between the parties is the corporate structure of the IG Power Group. IGPC, which is the joint venture partner with CEPL, is wholly owned by IGPH which, in turn, is wholly owned by IGEH. The shares in IGEH are held by a number of separate entities forming part of what can be referred to as the “Genuity Group” of companies. One of those entities, Genuity Callide Services Pty Ltd presently holds 85.4% of the shares in IGEH. The upstream holding company in the Genuity Group is OzGen (UK) Limited (OzGen). It is held as to 50% by Union Star Development Ltd (UK) and InterGen Australian Holdings (UK) which, through a series of other companies in the “InterGen Group” (though those companies have recently changed their names to replace the word “InterGen” with the word “Emberock”), is ultimately held by Sev.en Energy. The other 50% interest appears to be ultimately held by China Huaneng Group (CHG). As these reasons reveal, the corporate structure of the group is very complex, and has undergone many changes over time.

5    The current administrators of the IG Power Group were initially appointed as “special purpose administrators” of IGPC on 29 January 2024, consequent upon an application made by Sev.en Gamma a.s. (Sev.en Gamma): see Sev.en Gamma a.s. v IG Power (Callide) Pty Ltd (Administrators Appointed) [2024] FCA 30. At that time, Mr Richard Hughes and Mr Grant Sparks were the “general purpose administrators” of each of the companies in the IG Power Group.

6    On 27 June 2024, orders were made removing the general purpose administrators and appointing Mr Campbell and Mr Park in their stead. The making of those orders was opposed by CEPL and its parent company, CS Energy Limited (CSEL), the latter of which is wholly owned by the Queensland Government.

7    The administration of the IG Power Group has continued, and the administrators have considered and pursued options for the purpose of restructuring the companies or selling their assets. The steps taken by them have involved engaging a consultant, Houlihan Lokey, to assist in obtaining funding for the administration and seeking proposals for a re-capitalisation of the companies or the sale of the companies or their assets.

8    The substantive asset of IGPC is its 50% interest in its joint venture with CEPL, pursuant to which the parties operate the Callide C power plant at the Callide Power Station. Relevantly to the present application, the JVA which governs the joint venture purports to contain certain rights of pre-emption in relation to the sale of any interest in the joint venture.

9    The sale process undertaken by the administrators has resulted in their receiving a number of non-binding indicative offers for the re-capitalisation or sale of the companies and/or IGPC’s interest in the power station, and the administrators are desirous of advancing that process towards a binding agreement.

10    In light of this, the administrators have corresponded with CEPL as to the construction of the pre-emption clauses contained in the JVA. It has become apparent that there is a difference between CEPL and the administrators’ views.

11    Binding offers for the acquisition of the shares in IGPH held by IGEH were due by 27 September 2024. At the time of the hearing of the application on 3 October 2024, no formal contract had been entered into.

12    By the present application, the administrators effectively seek advice as to whether a sale of the shares in IGPH which are owned by IGEH would require compliance with the pre-emptive rights clauses contained in the JVA. Although that is not necessarily the level at which the share sale may occur, in that it may occur one level below that — being a sale of the shares in IGPC which are owned by IGPH — it is said to raise the same questions of construction.

The provisions of the JVA

13    There have been a number of iterations of the JVA between CEPL and IGPC over the years. Although the JVA has been amended four times, the amendments made pursuant to three sequential amending deeds are the most relevant for present purposes. The first was entered into on 3 December 1999 (First Amending Deed), the second was entered into on 12 October 2000 (Second Amending Deed), and the parties to the third agreed that it was entered into on 4 July 2003 (Third Amending Deed). The fourth set of amendments to the JVA were made much later, pursuant to a Deed of Settlement, Release and Amendment entered into on 13 December 2007.

14    It should be observed that, in the course of submissions, there was some apparent confusion as to the dates on which the amending deeds were executed and as to their effect. However, nothing material turns on this.

The initial JVA

15    The JVA was initially entered into on 11 May 1998 between CEPL and Shell Coal Power (Callide) Ltd (SCPC) (now IGPC) together with the joint venture manager, Callide Power Management Pty Ltd (CPM, which is defined in the JVA as the “Manager”).

16    The objects of the joint venture “Participants” (being CEPL and SCPC), as set out in cl 2.1 of the JVA, were to construct the power station, operate and maintain the power station to generate electricity, and to pursue such other objects as the management committee may approve.

17    Clause 2.3(a) provided that the relationship between the Participants was one of joint venturers and limited to the objects described in cl 2.1. The terms of cl 2.3 would render it somewhat difficult to conclude that the relationship between the joint venturers was other than a commercial one regulated by the terms of the JVA, and it is not possible to discern any obligations, fiduciary or otherwise, which operate dehors the agreement.

18    By cl 2.3(d), each joint venturer was entitled to a share, corresponding to its “Interest”, of any benefits from the joint venture, and was liable for a share, corresponding to its Interest, in all obligations and liabilities incurred by a Participant or the Manager on behalf of the joint venture.

19    The word “Interest” was defined in Schedule 1 to the JVA to mean:

the undivided right, title and interest of a Participant, expressed as a percentage, in:

(a)     the Joint Venture Property;

(b)     rights arising under this Agreement and the Related Agreements; and

(c)     any benefits arising from the foregoing (other than the proceeds of Electricity sales); and

(d)     each Participant’s issued ordinary shares in the capital of the Manager;

20    Clause 2.10 imposed on each Participant an obligation to act in good faith towards the other.

21    By cl 2.12, the parties agreed, inter alia, as follows:

Each Participant covenants and agrees with each other Participant:

(a)    to perform, observe and fulfil its obligations under this Agreement;

…

(d)    not to sell, assign, dispose of or otherwise transfer the whole or any part of its Interest except as specifically provided in or permitted by Clauses 7, 8 or 9.

…

22    Relevantly, cl 9.1 of the JVA provided that a Participant (the “Assignor”) “must not assign or otherwise deal with or alienate this Agreement or the Related Agreements or any right under this Agreement or any Related Agreement”, to any persons except with the consent of the other Participant or, in the case of an assignment to a “Related Body Corporate”, called a “Related Body Corporate Assignee”, only if the proposed Related Body Corporate Assignee had “agreed to be bound by the terms of this Agreement and the Related Agreements by a Deed of Assumption in accordance with Clause 9.2(a)”.

23    In this respect the original ability to assign an interest in the JVA was rather restricted.

24    Clause 9.1 further provided that an assignment to a Related Body Corporate was not effective until the Assignor and the Related Body Corporate had entered into an agreement with the other Participants to the effect that, if the Related Body Corporate ceases to be a Related Body Corporate of the Assignor at any time, it will reassign the Interest to the Assignor or, “if the Assignor is then no longer a Related Body Corporate of the company which was, at the date of the original Assignment, its Ultimate Holding Company, then to a Related Body Corporate of that former Ultimate Holding Company”.

25    In the definition section of the JVA, being Schedule 1, the expression “Ultimate Holding Company”, was defined as follows:

In this Agreement, unless the context otherwise requires:

…

Ultimate Holding Company means:

(a)    in relation to any Participant other than CSE and Shell which acquires an Interest, a body corporate that is deemed to be related to it pursuant to Sections 9 and 50 of the Corporations Law;

(b)    in relation to Shell:

(i)     N.V. Koninklijke Nederlandsche Petroleum Maatschappij (‘Royal Dutch’);

(ii)     The ‘Shell’ Transport and Trading Company p 1 c (‘Shell Transport’); and

(c)     in relation to CSE either a body corporate that is deemed to be related to it pursuant to Sections 9 and 50 of the Corporations Law and a Minister of, or the Crown in the right of the State of Queensland;

The amendments to the JVA

26    The amendments made by the First Amending Deed were numerous, albeit of minimal relevance to the present discussion.

27    In the period leading up to the execution of the Second Amending Deed on 12 October 2000, it is apparent that some substantial negotiations took place between the parties. Included in the material before the Court was a letter dated 9 October 2000 from the Chief Executive Officer of CSEL to IG Investment (Callide) Pty Ltd (IGIC). It purported to confirm certain agreements between IGIC and CSEL relating to the impending acquisition by IGIC of the issued shares in Shell Coal Power Holdings Ltd (SCPH) (now IGPH). One of the agreements was that the parties would enter into a suite of agreements. Another agreement was that, as soon as possible after the completion of the acquisition, IGIC would cause SCPC to pursue a taxation ruling in relation to potential adverse tax consequences for SCPC as a result of the grant or exercise of rights of pre-emption or purchase options provided for in a “Joint Venture Agreement Amending Deed” attached to the letter. If a favourable tax ruling was obtained, IGIC and CSEL would cause SCPC, CEPL and CPM to enter into that deed. The letter also contained agreed representations made by SCPC and by IGIC, each of which identified that InterGen was a company incorporated in the Cayman Islands. That InterGen company is referred to herein as “InterGen (Cayman Islands)”.

28    Before the private ruling was obtained, the parties entered into the Second Amending Deed. It was not in the same form as that attached to the letter of 9 October 2000. It, relevantly, made a number of alterations to the definitions in the JVA. In particular, it changed the name of Shell Coal Power (Callide) Ltd (being SCPC) to IG Power (Callide) Ltd (being IGPC).

29    Other amendments made included the insertion of a new definition of “Holding Company” which was to the effect that the expression has the meaning given to it in the Corporations Law.

30    A further amendment made was to the definition of “Ultimate Holding Company”, with the new definition being as follows:

‘Ultimate Holding Company’ means:

(a)     in relation to IG Power, InterGen (an exempted company incorporated in the Cayman Islands with limited liability) or any Holding Company of InterGen nominated for this purpose by IG Power;

(b)     in relation to CSE, either CS Energy Limited or the Crown in right of the State of Queensland; and

(c)     in relation to any other Participant, such entity as the Participants, acting reasonably, unanimously agree (prior to that Participant becoming a Participant) is the ultimate controller of that other Participant.

31    This apparently recognised the impending transfer of the corporate structure from the Royal Dutch and Shell Group to the InterGen Group which, itself, seemed to be partly owned by the Shell Group. For the purposes of the present discussion, it is relevant that InterGen (Cayman Islands) was IGPC’s specified Ultimate Holding Company.

32    The taxation ruling was not obtained until late October 2002. It was apparently agreed that it was a favourable ruling, and CEPL, IGPC and CPM then entered into the Third Amending Deed. These amendments introduced the pre-emption rights which are the subject of the current application.

33    The Third Amending Deed contains no date as being the date on which it was made. However, the document has a print date of 3 December 2002.

34    By correspondence between IGPC and CEPL in July and August 2003, it was agreed that the effective execution date of the Third Amending Deed would be 4 July 2003.

35    By the Third Amending Deed, cl 2.12(d) was amended to provide that IGPC has covenanted with CEPL not to sell, assign, dispose of or otherwise transfer the whole or part of its Interest, except as provided for in cll 7, 8, 9, 9A and 9B.

36    Clause 9.1 was also amended. It still prohibits the assignment, dealing or alienation of the JVA or a Related Agreement to any person without the consent of the other Participant. However, it permits assignment to “the Ultimate Holding Company of the Assignor or a Subsidiary of that Ultimate Holding Company (in each case, a Related Body Corporate Assignee)” or “where required … under clause 7 or clause 9B”. It then provides:

If IG Power or a Related Body Corporate Assignee of IG Power (each an ‘InterGen Entity’) proposes to transfer all or part of its Interest, other than in the circumstances contemplated in paragraph (b) or (c) above, it must also comply with Clause 9A.

37    The operation of this part of cl 9.1 is limited to the disposal of the Interest or any part of it.

38    Whilst this clause is not directly applicable to the facts of the present case, it does provide some definitions relevant to the operation of cll 9A and 9B. First, it provides a meaning of the expression, “Related Body Corporate Assignee”, being “the Ultimate Holding Company of the Assignor or a Subsidiary of that Ultimate Holding Company”: see cl 9.1(b). Secondly, it provides a meaning for the expression, “InterGen Entity”.

39    Clause 9A relevantly provides:

9A    Grant of Pre-Emptive Rights to [CEPL]

9A.1    When this clause applies

This clause 9A only applies for so long as [CEPL] or a Related Body Corporate Assignee of [CEPL] is wholly owned, directly or indirectly, by the State of Queensland and has an Interest of not less than 50%.

9A.2     Giving of Sale Notice to [CEPL]

If:

(a)     an InterGen Entity wishes to transfer all or part of its Interest, other than under Clause 9.1(b) or where required under Clause 7 or Clause 9B; or

(b)     an entity (‘Relevant Entity’) wishes to transfer a Controlling Interest in an InterGen Entity, or in a Holding Company of an InterGen Entity all or substantially all of the assets of which consist of a direct or indirect interest in that InterGen Entity, other than in the circumstances specified in Clause 9B.2(a)(i) or (ii),

that InterGen Entity or Relevant Entity (as applicable) (‘Seller’) must first give notice in writing (‘Sale Notice’) to [CEPL] stating:

(c)     the Interest or Controlling Interest (as applicable) (‘Sale Interest’) to be transferred; and

(d)     the price at which, and terms on which, the Seller is prepared to sell the Sale Interest.

9A.3     Sale Notice constitutes offer to sell

(a)    The giving of a Sale Notice will constitute an offer (‘Offer’) by the Seller to sell the Sale Interest to [CEPL] at the price and on the terms specified in the Sale Notice.

(b)     The Offer:

(i)    will be irrevocable for a period of 45 days (‘Offer Period’);

(ii)    will expire if not accepted before the end of the Offer Period; and

(iii)     cannot be accepted in respect of less than the whole of the Sale Interest.

9A.4    Acceptance of Offer

(a)     If the Offer is accepted by [CEPL] within the Offer Period, the Seller must sell the Sale Interest to [CEPL].

(b)     Any contract arising from acceptance of the Offer will be conditional upon all necessary Governmental Approvals, and all necessary consents and approvals under the Related Agreements, being obtained.

9A.5    Sale where Offer not accepted

If the Sale Interest is not sold under the preceding provisions of this Clause 9A, the Seller may sell the Sale Interest (but not part of it) to any person a bona fide sale provided that:

(a)    it does so at a price no less than, and on terms no more favourable than, those contained in the Sale Notice;

(b)     the sale is effected within 12 calendar months of the date of the Sale Notice;

(c)     it gives [CEPL] evidence to its reasonable satisfaction that paragraph (a) has been complied with; and

(d)     where applicable, Clauses 9.1(a) and 9.2 are complied with.

9A.6    Rights Personal to [CEPL]

The rights conferred on [CEPL] under this Clause 9A are personal to it and cannot be assigned except to a Related Body Corporate Assignee of [CEPL].

9A.7    References to [CEPL]

References in this Clause 9A to [CEPL] include a Related Body Corporate Assignee of [CEPL].

40    For the purposes of the above clause, the expression “Controlling Interest” was defined to mean:

in respect of a corporation, the direct beneficial ownership of 51% or more of the issued voting shares of that corporation.

41    Clause 9B, which is also relevant to the issues between the parties, was inserted. It provides a procedure by which CEPL is entitled to purchase IGPC’s “Interest” in the joint venture if a particular change of control would occur by a proposed transaction. It provides:

9B    Grant of Purchase Options to [CEPL]

9B.1    When this Clause applies

This Clause 9B only applies for so long as [CEPL] or a Related Body Corporate Assignee of [CEPL] is wholly owned, directly or indirectly, by the State of Queensland and has an Interest of not less than 50%.

9B.2    Notice of Proposed Change of Control

(a)     If an InterGen Entity will cease to be a Subsidiary of its Ultimate Holding Company as a result of a proposed transaction, other than:

(i)     a sale of all or substantially all of the assets of its Ultimate Holding Company;

(ii)     a public offering of shares in that InterGen Entity, or Holding Company of that InterGen Entity, which are to be listed for quotation on a recognised stock exchange; or

(iii)     a transfer by a Relevant Entity of a Controlling Interest in that InterGen Entity, or in a Holding Company of that InterGen Entity, in accordance with Clause 9A,

it must give notice of the proposed transaction to [CEPL].

(b)    If an InterGen Entity gives a notice under paragraph (a), [CEPL] may, within 14 days after receipt of that notice, give notice to that InterGen Entity that it requires that the Fair Value of that InterGen Entity’s Interest be determined.

…

42    Subsequent subsections provide for the valuation of the “Interest” being disposed of and the opportunity for its acquisition by CEPL.

Disputation between the parties as to the relevance of cll 9A and 9B to the proposed sale by the administrators

43    It is the operative effect of the restrictions on alienation in the JVA which has generated disputation between the administrators and CEPL. As mentioned, that has arisen in the context of the administrators intending to sell or assign the shares in one of IGPC’s holding companies for the purpose of the administrations.

44    By a letter of 28 August 2024, the administrators wrote to CSEL and CEPL indicating that they did not consider that cll 9.1, 9A or 9B were relevant to a sale by IGEH of its shares in IGPH. In the first instance, it was identified that IGEH was not a party to the JVA and, as such, is not bound by any pre-emption rights contained in cl 9A. In relation to cl 9B, it was indicated that the preconditions for its operation did not exist, such that it was not relevant.

45    Clayton Utz responded on behalf of CEPL by a letter of 4 September 2024, in which it accepted that cl 9.1 did not apply to the sale of the IGPH shares. However, it asserted that cl 9A did apply and, were it otherwise, CEPL might end up in a joint venture with an entity with whom it did not agree. In the alternative, it asserted that cl 9B applied to afford to it pre-emption rights in the circumstances as they had arisen.

The nature of the pre-emption rights and their interpretation

46    In general terms, the purpose of cll 9.1, 9A and 9B in providing pre-emption or option rights to CEPL is to afford it some certainty as to the identity of its joint venture partner in relation to the operation of the Callide Power Station. On being given notice of any proposed transaction, CEPL says that it is entitled to exercise or waive its rights to acquire the Interest which is the subject of the disposition. The trigger of the clauses is not the disposition of any shareholding, but a scenario where an Interest or a Controlling Interest is intended to be transferred (cl 9A) or where a proposed transaction will cause an InterGen Entity to cease to be a Subsidiary of its Ultimate Controlling Company (cl 9B). The importance of this perceived purpose of the clause should not be understated when addressing the constructional issues, though it may not be sufficient to overcome a situation where the agreed contractual provisions fail to achieve the intended commercial purpose.

47    The general purpose of pre-emption clauses was referred to by Hargrave J in Beaconsfield Gold NL v Allstate Prospecting Pty Ltd [2006] VSC 320 [33] (Beaconsfield Gold) as follows:

… Pre-emptive rights are usually included in resource joint venture agreements. Given the importance of the identity, financial capacity and reliability of the participants in a joint venture, pre-emptive rights operate to ensure that existing participants are empowered to exclude new participants by purchasing the outgoing participant's interest if they so desire. They also permit a joint venturer who may take the view that it has expended a significant amount of money in a high risk area to have an opportunity to increase its interest if another joint venturer desires to withdraw from the joint venture. This allows an enhanced opportunity to reap the rewards from past risk-taking and expenditures.

(Footnote omitted).

48    That description of the general purpose of pre-emption clauses can be accepted, as can the manner in which that general purpose influences the process of construing such clauses. This was mentioned by Pritchard J in Santos Offshore Pty Ltd v Apache Oil Australia Pty Ltd [2015] WASC 242 [35] (Santos Offshore):

Having regard to the purpose of pre-emptive rights clauses, the courts have recognised that there is a need for caution in adopting a construction which would restrict their operation or which would permit their application to be avoided and thus which would erode the benefit conferred by the grant of a right of pre-emption. For the same reason, pre-emptive rights clauses have been construed so as not to render it impossible for a joint venturer to satisfy the requirements of the offer.

(Footnotes omitted).

49    Co-ordinately with those observations, it is well accepted that pre-emption clauses should not be given any narrow interpretation: Beaconsfield Gold [33] – [34]; Santos Offshore [34] – [35]. On occasion, that may mean:

(a)    not giving words their precise legal meaning, even if the contract was prepared by lawyers: see THL Robina Pty Ltd v The Glades Golf Club Pty Ltd [2005] 2 Qd R 186, 196 [33], 197 [35], 199 [39];

(b)    reading words into an agreement to avoid a construction that would “wholly defeat the intention of the parties that there be an enforceable pre-emptive regime”: APT SEA Gas Holdings Pty Ltd v ANP SEA Gas Holdings Pty Ltd [2010] NSWSC 1221 [50];

(c)    rejecting a construction that would allow a pre-emption clause to operate only once, even where that is the more obvious and natural construction: see Pauls Trading Pty Ltd v Norco Co-operative Ltd [2006] QCA 128 [12], [22], [30], [49] (Pauls v Norco); and/or

(d)    giving poorly drafted pre-emption clauses a construction which avoids rendering them meaningless: see Noranda Australia Ltd v Lachlan Resources NL (1988) 14 NSWLR 1, 9C-E, 12E, 13C.

50    Again, so much can be accepted as general propositions. However, the approach to be taken in accordance with those propositions does not require the Court to rewrite a defective clause or to reconstruct one which has been effectively spent given the circumstances which have occurred. Less still does it require the Court to conjure up non-existent agency relationships so as to extend the operation of the clause and avoid the consequences of poor drafting or poor contract administration over time.

Clause 9.1

51    Clause 9.1 is only concerned with the assignment, or other “dealing” or “alienation” of the JVA or the “Related Agreements”, and with the circumstance where IGPC (or a “Related Body Corporate Assignee of [IGPC]”) proposes to transfer all or part of its “Interest”. It is not relevant to the circumstances of this case, being where there might be a transfer of shares in IGPH or IGPC. That did not appear to be in dispute at the hearing, and this clause can be put to one side, save to the extent to which it provides some context for the interpretation of other clauses.

Clause 9A

Who are the parties purportedly affected by the provision?

52    On its face, cl 9A.2(a) purports to impose proscriptions on any “InterGen Entity” which, by cl 9.1, is defined to mean IGPC or a Related Body Corporate Assignee of IGPC. As indicated above, in this context “Related Body Corporate Assignee” means the Ultimate Holding Company of the Assignor or a Subsidiary of that Ultimate Holding Company.

53    By the Second Amending Deed, the Ultimate Holding Company of IGPC was specified as being “InterGen (an exempted company incorporated in the Cayman Islands with limited liability) or any Holding Company of InterGen nominated for this purpose by IG Power”.

54    Given the above, the restrictions imposed by cl 9A.2(a) are, on the face of the JVA, imposed on:

(a)    IGPC; or

(b)    InterGen (Cayman Islands); or

(c)    any Subsidiary of InterGen (Cayman Islands); or

(d)    any Holding Company of InterGen (Cayman Islands) nominated by IGPC.

55    It also follows that cl 9A.2(b) purports to impose restrictions on the ability of an entity (called a “Relevant Entity”) to transfer a Controlling Interest in an InterGen Entity or in a Holding Company of an InterGen Entity. Inferentially, this limitation applies to a company which has a Controlling Interest in an InterGen Entity or in a Holding Company of an InterGen Entity. By reason of the cumulative operation of the definitions, it follows that the restrictions purportedly apply to a company holding a Controlling Interest in IGPC, InterGen (Cayman Islands), or any subsidiary of InterGen (Cayman Islands), or any subsequently nominated Ultimate Holding Company.

The absence of an Ultimate Holding Company of IGPC for the purposes of the JVA

56    The above analysis of the scope of entities affected by cl 9A remains good only if InterGen (Cayman Islands) remained the Ultimate Holding Company. That, however, was not case.

57    By a letter of 1 March 2002, IGPC nominated InterGen (International) BV to be its Ultimate Holding Company in substitution of InterGen (Cayman Islands) for the purposes of the JVA. This was apparently pursuant to a restructuring in the InterGen Group. The material does not reveal any response to that nomination, though the subsequent evidence indicates that the substitution was accepted. In any event, IGPC seemingly had the contractual entitlement to nominate a substitute Ultimate Holding Company, and no agreement by CEPL was required. Given the ambulatory nature of the definition of Ultimate Holding Company, it was not necessary to amend the JVA to accommodate the change.

58    By a further letter of 2 December 2003, IGPC notified CEPL that additional restructuring was to occur in relation to the InterGen Group’s Australian interests by the transfer of a 50% interest in OzGen BV (which was the holding company for the InterGen Group’s Australian assets, including its interests in the Callide Power Station) to CHG. By that transaction, CHG would become InterGen’s partner in all its Australian assets. CHG would, alongside InterGen through OzGen BV, own an indirect 25% interest in the Callide Power Station. This had the consequence that InterGen (International) BV would cease to be IGPC’s Ultimate Holding Company for the purposes of the JVA. The letter stated:

Clause 9B.2 of the Callide Joint Venture Agreement requires IG Power (Callide) Ltd to give notice to Callide Energy Pty Ltd if it will cease to be a subsidiary of its “Ultimate Holding Company”, InterGen (International) BV, as a result of a proposed transaction. Our contemplated transaction with CHG will cause IG Power (Callide) Ltd to cease to be a subsidiary of InterGen (International) BV. Accordingly, please treat this letter as the notice required under clause 9B.2 of the Joint Venture Agreement.

59    By a letter of 15 December 2003 from CEPL, the notification required under the JVA was acknowledged, as was the triggering of CEPL’s option to purchase IGPC’s interest in the joint venture. The letter went on to state that, “[CEPL] hereby waives its rights to exercise its option to purchase, triggered by the notice above”. That was an unconditional waiver of the rights to exercise the option and no attempt was made to require IGPC to nominate any Holding Company of InterGen (Cayman Islands) to be the new Ultimate Holding Company under the JVA, nor was it suggested that the JVA should be amended to insert a new definition, such as one that might equate to the meaning of that term as found in the Corporations Act.

60    The effect was that, from December 2003, InterGen (International) BV, ceased to be the operative Ultimate Holding Company of IGPC for the purposes of the JVA and, moreover, there was no relevantly nominated entity for the purpose of the definition.

61    As the discussion below reveals, CEPL subsequently realised the deficiency in the contractual relationship and sought to leverage an amendment to the terms of the JVA by requiring that IGPC nominate a company as its Ultimate Holding Company, but that attempt to force a nomination failed.

The operation of cl 9A.2(b)

62    CEPL’s position is that, where there is to be an intended sale by IGPH of its shares in IGPC or a sale by IGEH of its shares in IGPH, each being a sale of more than 51% of the voting shares and therefore a Controlling Interest, cl 9A.2(b) requires the seller to give it notice of the sale which will constitute an offer to sell the shares, and that it may exercise its pre-emptive rights in relation to them.

63    It can be accepted that, on the application of the definitions found in the JVA and despite the alterations to the identity of the Ultimate Holding Company, IGPH is a “Relevant Entity” and is prima facie subject to the operation of cl 9A.2(b) in circumstances where it wishes to transfer its Controlling Interest in IGPC (IGPC being within the definition of an InterGen Entity).

64    Similarly, on its face, cl 9A.2(b) also applies to IGEH because, it too, is a Relevant Entity in circumstances where it seeks to dispose of a Controlling Interest in IGPH (which is a Holding Company of an InterGen Entity).

65    It can be accepted that the operation of cl 9A.2 is not negated in the current circumstances, even if there is no Ultimate Holding Company nominated by IGPC for the purposes of the JVA.

IGPH and IGEH are not parties to the JVA

66    The immediate and, perhaps insurmountable, difficulty is that neither IGPH nor IGEH are parties to the JVA, and nor have they been at any time. In the event that CEPL became aware of an intention on the part of either IGPH or IGEH to dispose of a relevant Controlling Interest and sought to enforce cl 9A, it would encounter a foundational difficulty in the absence of any agreement by those companies to be bound by it. In agreements of this nature, it might be commonplace for there to be a covenant by IGPC to secure an agreement from its related companies to be bound by the terms of the pre-emption clauses, however, no such provision appeared in the JVA and nor was there any suggestion of one. Although CEPL averted to the possibility of there being a collateral contract to the effect that IGPC’s holding companies would be bound by the pre-emption clauses, that argument was only faintly advanced, and was inappropriately bundled with the submissions in relation to IGPC being the agent of IGPH and/or IGEH (which are considered below). Ultimately, no substantial submissions or evidence were adduced which could support the existence of a collateral contract.

67    Returning then to the construction of cl 9A.2, it may be possible to construe the clause as imposing the obligation to give notice on IGPC, which is actually a party to the JVA. Following subclauses (a) and (b) are the words, “that InterGen Entity or Relevant Entity (as applicable) (‘Seller’) must first give notice in writing (‘Sale Notice’) to [CEPL] stating …”, following which are the matters of which notice has to be given and the statement that the notice constitutes an offer to sell the Controlling Interest to it. The words, “as applicable”, are somewhat ambiguous in that they do not specify the circumstances in which the distinction between the possible companies is to be drawn. As the administrators suggested, there is a possible construction that, regardless of which of the subparagraphs is triggered, it is always IGPC which is obliged to give notice. However, this would produce practical difficulties. The preferable construction is that the reference to the “InterGen Entity” or the “Relevant Entity”, is a reference to the alternatives in subclauses (a) and (b). The first refers to the intention of an “InterGen Entity” and the latter to that of a “Relevant Entity”. That being so, the obligation to give notice to CEPL falls on the party wishing to dispose of their relevant share or interest. There is some logic to that because the notice is to be treated as an offer for sale and that can only be provided by the entity with ownership of the interest to be alienated.

68    On that construction and in the circumstances in which this matter arises, the putative obligation in relation to a disposition of shares at either the IGPH or IGEH level would fall on the company intending to dispose of their shares. That suggests some intention by the contracting parties that IGPH and IGEH were intended to be bound by the JVA or some of its clauses. However, as neither are parties to the JVA and did not execute it, there is a strong argument that they are not bound. Rather, the agreement appears to be one which attempts to overreach to impose obligations on non-parties.

Was IGPC the agent of IGPH and IGEH when entering into the JVA?

69    If, however, IGPC was the agent of IGPH and/or IGEH when entering into the JVA or the Third Amending Deed, those companies might then be obliged to comply with cl 9A.2. This was the substantial proposition put forward by CEPL.

70    When considering the question of any possible agency, it would be erroneous to strive to find evidence of it, rather than consider the facts objectively as they appear. It must be kept in mind that it may simply be that an error was made by the parties when entering into the amending deeds by not making provision to bind IGPH and IGEH to their terms, such that in the circumstances as they have happened, CEPL has entered into a bad bargain. On the material before the Court, this is the more likely scenario, being one which arose consequent upon the piecemeal series of amendments made to the JVA over time.

No express statement of agency

71    The first difficulty with the proposition that IGPC was the agent of IGPH and/or IPEH is the absence of any express statement to that effect. That is particularly relevant in relation to the JVA and the amending deeds, where there is frequent reference to the existence or non-existence of any agency: see, for example, cll 2.3(f) and (h), 2.5(b), 6.2(b) and 6.4 of the JVA. In circumstances where an agreement makes express provision for the circumstances in which a participant is or is not an agent of another, or that others do or do not act as their agent, it would be surprising to imply the existence of an agency in relation to a certain clause (here, cl 9A) despite the absence of any mention of it. It appears sufficiently clear that, if the parties had intended that IGPC was to be the agent of IGPH and/or IGEH, provision would have been made for it. Its absence speaks strongly against the implication of it.

72    It is also relevant that the Third Amending Deed was one of a suite of documents between the parties and that in the related documents, such as the Joint Venture Deed of Cross-Charge, the parties identify, with clarity and specificity, those occasions on which one entity acts as agent for another. Such express references to the existence of any agency relationships further militates against the implication of other such relationships for the purposes of particular clauses.

The terms of the JVA and its purpose

73    In addition, the joint venture parties have consistently been represented by substantial legal firms in relation to the contractual negotiations and preparation of the formal agreements. The consequence is that the agreements entered into are not lacking in substance nor specificity. It is, perhaps, for that reason that the JVA specifies the existence of an agency where that was intended. That said, it might be observed that the agreements were not always a model of contractual drafting. The First Amending Deed sought to rectify in excess of 100 errors in the initial version of the JVA, including typographical, punctuation, and numbering errors.

74    Nevertheless, given the identity of the parties’ legal representatives, had the execution of the JVA by the Participants been intended to have the legal effect of binding other entities, it might be expected that the execution clauses, or even the recitals, would have expressed that in clear terms. That did not occur in relation to the original JVA nor in relation to the subsequent amending deeds. On the other hand, it is noted that CSEL was a party to the Second Amending Deed of 12 October 2000, but no holding companies of IGPC were included as executing parties in that document. That suggests that the contracting parties were alive to the identity of the persons who were to be bound by the terms of the JVA and the amending deeds as and when required.

75    The terms of the recitals in the JVA also tend against the implication of an agency relationship. In recital A, reference is made to “the Participants and their Related Bodies Corporate [having been] engaged jointly in activities preparatory to the formation of an unincorporated joint venture”. However, recital B and C specifically refer to CEPL and IGPC entering into the JVA. If it were intended that either were to contract as agent for another related body corporate, it is difficult to imagine that it would not have been mentioned, particularly where the contrary is implied.

76    The absence of any express statement that IGPC was the agent of IGPH and IGEH when entering into the JVA is not unsurprising. The initial version of the agreement did not include cll 9A and 9B, but only the original form of cl 9.1. That latter clause was concerned to impose limitations on assignment by the Participants of the JVA or any right under it or in respect of any Related Agreement. There existed no limitation on Holding Companies or Ultimate Holding Companies from disposing of their interests in their subsidiaries. On the contrary, the necessary implication from cl 9.1(b) of the original version of the JVA is that IGPC (then SCPC) had not entered into the agreement as agent for any related body corporate. That clause was concerned with the possibility of alienation of the rights under the agreement to a Related Body Corporate and it imposed a requirement if that were to occur, that the Related Body Corporate must have “agreed to be bound by the terms of this Agreement and the Related Agreements by a Deed of Assumption in accordance with Clause 9.2(a)”. No such agreement would have been required if IGPC’s holding companies were already bound to it.

77    Moreover, the terms of the chaussette of the original cl 9.1 excluded any implication that IGPC was the agent of its Ultimate Holding Company or any Subsidiary of that company. It provided that, if there were to be an assignment to any such body, the relevant Participant was required to obtain a covenant from the Assignee requiring the re-assignment of the interest under the JVA if the Assignee ceased to be a Related Body Corporate of the Assignor. Again, if the JVA was entered into by IGPC on behalf of IGPH and IGEH or any other entity, terms could easily have been included to bind them and the chaussette would not be required.

78    The existence of cl 16.1 of the JVA, which provides for disputes to be referred to the Chief Executive Officers of the Relevant Holding Companies of each Participant in an attempt to bring about resolution of any disagreements, does not suggest any different conclusion. That clause is permissive as to the involvement of the officers of the Relevant Holding Companies and does not purport to impose any obligation on those holding companies or their officers. Clause 16 further provides that if the dispute is not settled between the Chief Executive Officers of the Relevant Holding Companies within 14 days, it must be referred on to arbitration, expert determination or court proceedings. The nature of this clause is substantially different from cl 9A.2 which purports to impose direct obligations on the holding companies. Moreover, cl 16 relates to the actions of individuals holding certain positions, rather than actions of the holding companies themselves.

79    In general, there is insufficient indication in the terms of the agreement to establish that IGPC entered into it as agent for its holding companies or some of them.

80    Nothing in the recitals or the terms of the Third Amending Deed, which inserted cll 9A and 9B, changes this conclusion. They simply state that “[t]he Participants and the Manager entered into a Joint Venture Agreement on 11 May 1998 … [and] [t]he parties wish to amend the Joint Venture Agreement in the manner set out below”.

Surrounding circumstances

81    The mere fact that IGPH is the Holding Company of IGPC does not suggest that the latter entered into the JVA as the former’s agent or, indeed, as the agent of IGEH. There is no natural inference that subsidiaries contract on behalf of their majority shareholders. That proposition holds true even where the two companies have overlapping directors which, it might be assumed, was the case here.

82    It might also be observed that it is not commercially likely that those who stand behind a company involved in a substantial joint venture project would appoint the corporate joint venturer as its agent. The usual purpose of utilising a special purpose company for pursuing the joint venture activities is to shield those who stand behind it from liability arising during the undertaking. Rather than the existence of any agency being a necessary implication in the current circumstances, it is the antithesis of it. True it is that cl 9A.2 is not relevant to the day-to-day operations of the joint venture, nevertheless, the suggestion of any authority for the joint venture Participant to act on behalf of its Holding Company might undermine the usually expected protection.

83    CEPL sought to rely upon the circumstances surrounding the entry into the Third Amending Deed as indicating that it was entered into by IGPC as the agent for its holding companies. It was said that the amendments to the JVA were part of a larger transaction in which the InterGen Group acquired the Shell Group’s interest in the Callide Power Station and that this was achieved by IGIC acquiring the shares in IGPH (then SCPH). This was said to have been evidenced in the letter of 9 October 2000 from the Chief Executive Officer of CSEL to IGIC where certain agreements were recorded. The latter company became a parent company of IGPH, though the current immediate parent company of IGPH is IGEH. Specifically, it was recorded in the letter that on the acquisition of the favourable tax ruling, IGIC and CSEL would cause their respective subsidiaries, SCPC (now IGPC) and CEPL to enter into the enclosed amending deed along with the Manager. Whilst it might be accepted that the holding companies were able to effectively exercise commercial and corporate power over their subsidiaries to cause them to enter into the amending deeds, that does not carry with it any suggestion that the subsidiaries then did so with authority to bind the holding companies to particular obligations.

84    The submission made seemed to be that, as the parent companies caused their subsidiaries to enter into the Third Amending Deed which included terms that, on their face, purported to bind the parent companies, it must necessarily follow that the subsidiaries entered into the amending deed as agents for their parents in a limited manner. However, here, the allegations of how the alleged agency operated are vague. It may be that, as IGIC was the entity which authorised or caused IGPC to enter into the Third Amending Deed, it is therefore bound by it. However, even if that were so, that would not seem to bind other companies which fall within the concept of “Relevant Entities”, which would include the Ultimate Holding Company and any Subsidiary of that company. For instance IGEH and IGPH have a relevant Controlling Interest so as to be a “Relevant Entity”, but it is not clear why any authorisation by IGIC for IGPC to enter into the Third Amending Deed would bind them to the JVA’s terms. Neither are the same entity as IGIC, which is now deregistered, and there is no evidence that IGEH was ever a subsidiary of that company.

85    During oral submissions, Mr Brereton SC sought to overcome this difficulty by suggesting that the granting of authority by IGIC was also on behalf of all current parent companies of IGPC. The precise mechanism by which that might occur was not made clear and it would necessarily include IGEH which, on the evidence, was never the subsidiary of IGIC. The submission also suffers from the difficulty that IGIC would somehow be authorising IGPC to bind any and all companies within the scope of the expression “Relevant Entity” and that would include companies which had a Controlling Interest in it. Again, the basis for this was not explained.

86    An attempt was made to rely upon the terms of a letter of 10 December 2001 in which InterGen (Australia) Pty Ltd wrote to the General Manager (Corporate Services) of CSEL advising of the likelihood of a restructure occurring in relation to the Callide interests. The letter refers to the disposition of a 30% interest in the Callide Power Station as not triggering any pre-emption rights though this is somewhat unusual because, on the basis of the terms of the JVA as they then existed, there were no such rights. It is true that the parties anticipated entering into the Third Amending Deed if a favourable taxation ruling was obtained and that those amendments might have then created pre-emption rights, but that had not yet occurred. In that context, it is likely that the letter was speaking in anticipation of the execution of that further amending deed, and it is apparent that the InterGen comments related to terms which might be agreed in the future. Whilst that might indicate that it was thought that at one level some pre-emption rights might exist, it was made clear by the InterGen Entity that the pre-emption rights did not apply to the then current circumstances.

87    Moreover, the letter in question does not suggest any admission that the JVA was binding on IGPC’s parents. It is likely that the pre-emption rights referred to were those in cl 9B which are operative even though the holding companies are not bound by the JVA.

The limited effect of cl 9A

88    The construction of cl 9A propounded by the administrators has the effect that cl 9A.2(b), at least, is of no legal effect. Though, on its face, it would seem to operate in the present circumstances in relation to a sale by IGPH or IGEH of their shareholding, as they are not bound by it, it has no relevant consequence.

89    CEPL submitted that it was not likely that the parties to the Second and Third Amending Deeds would have overlooked the doctrine of privity, and that submission has some weight. It was on that basis that it was suggested that some agency between IGPC and its parent companies must have existed, even if the evidence of it is not presently available. However, that is neither the necessary conclusion nor the more likely. On the contrary, the more likely conclusion is that the way the JVA was amended over time had the consequence that the need to bind parties other than those who executed the agreements, if that was intended, was overlooked. In this context, it is relevant that no submission was made that the initial JVA, the First Amending Deed, or the Second Amending Deeds were entered into by IGPC (or SCPC, being its previous name) as agent for any of its parent companies. When the time came for the execution of the Third Amending Deed, it may be that no one turned their attention to requiring others in the InterGen Group to be bound by it. It might also be that because the three amending deeds did not require the execution of new versions of the JVA, an insufficient attempt was made to assess the effect of the amendments on the agreement overall. It is also apparent from the evidence that there was a substantial period of time between the agreeance to the terms of the Third Amending Deed and its subsequent execution. That may have resulted in a failure to ensure that those parties who were to be bound by any new version of the JVA executed it or otherwise agreed to be bound by its terms. Whilst much of the foregoing is somewhat speculative, there are few facts which suggest any alternative explanation.

90    It is true that the Third Amending Deed imposed obligations intended to limit the ability of one party to dispose of rights or interests related to the joint venture. As indicated above, cl 9.1 is concerned with the alienation of rights or interests in the agreements between the parties. It also purported to limit the ability of IGPC or a Related Body Corporate Assignee of it to transfer all or part of its “Interest”, but the definition of “Interest” limits the scope of the clause to interests in the joint venture or in the Manager, CPM, with the result that this clause is not directly relevant to the present discussion.

91    In part, cl 9A.2 does attempt to impose rights of pre-emption in relation to the alienation by a company with a Controlling Interest in IGPC, and the consequence of the absence of any authority in IGPC to bind those companies will thwart that imputed intention. The difficulty here is that CEPL does not seek, as a matter of construction, to extend the scope of cl 9A.2 to cover transfers of shares in IGPC or IGPH, though this appears to be the contractual intention. Rather, it attempts to suggest that the apparent natural construction of the clause reveals some antecedent grant of authority in IGPC to contract in a manner which would bind IGPH and IGEH. That is not an issue of contractual interpretation, but one of attempting to find in the conduct of a putative agent the existence of an assertion of the authority necessary to justify that which the agent is alleged to have done on behalf of the principal. That is somewhat contrary to the well-established principle that, “[u]nless there is independent evidence of authority an agent’s representations are not evidence against the putative principal”: Gardiner v Agricultural and Rural Finance Pty Ltd (2008) Aust Contract Reports ¶90-274, 90-403 [391]. As was said in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 [127]:

It is elementary that either actual or ostensible authority must be proved by means other than evidence about what the putative agent said or did: Armagas Ltd v Mundogas SA (the Ocean Frost) [1985] 3 All ER 795 (affirmed Armagas Ltd v Mundogas SA (the Ocean Frost) [1986] AC 717); Essington Investments Pty Ltd v Regency Property Pty Ltd [2004] NSWCA 375; Gardiner v Agricultural & Rural Finance [2007] NSWCA 235 at [391]. …

92    In this case, CEPL has attempted to adduce evidence of the agreement into which IGPC entered as evidencing IGPC’s authority to bind IGPH and IGEH (although such evidence only arises as a matter of inference). Even if there was a clause in the Third Amending Deed stating that IGPC entered into it as agent for IGPH and IGEH, that would, of itself, be of no value in determining whether there was, in fact, any agency. Even less can be the value of an asserted inference to the effect that the terms of the Third Amending Deed are reflective of such authority. Though it can be accepted that the fact that IGIC had agreed to cause IGPC to enter into the agreement is some evidence of the grant of authority by a principal, it has no apparent relevance to IGPH or IGEH. Indeed, the latter did not appear to be an active part of the corporate group at the time.

93    It can also be accepted that the holding companies IGPH and IGEH theoretically derive a benefit from IGPC’s activities, but that fact alone or in combination with any other fact present in this case, does not establish the existence of IGPC’s authority to bind either of them. It would be even less likely in relation to IGEH.

94    The fact that, in the period during which the amending deeds were entered into, there existed interlocking directorships as between IGPC, IGPH and IGEH, is relevant to the issue of the manner in which the companies in the IG Power Group acted. It might be accepted that some of the directors of IGPC, IGPH and IGEH were aware of the terms of the amending deeds and their effect on the relationships between the parties. There is, however, insufficient evidence to know the precise extent of that shared knowledge. In addition, it cannot be forgotten that the parties intended and did pursue their commercial relationships indirectly through distinct corporate entities. The corporate structure is deliberate and complex and, importantly, results in the operating company, IGPC, being at the end of the chain where any liability is not easily imposed on other companies in the group. It is also poignant that the two participating interests intentionally caused the relevant contractual relationship to exist between particular companies, namely IGPC and CEPL, rather than those at higher levels in the corporate structure. Again, a strategy that immunises other entities from misadventure.

Conclusion on agency

95    There is insufficient evidence to conclude that any agency existed whereby IGPC acted as the agent of IGPH or IGEH when entering into the Third Amending Deed so as to bind either to any obligations in it. Moreover, there is insufficient evidence which would justify the Court refusing to give the direction sought on the basis that there might be a plausible argument that a relevant agency relationship existed between the necessary parties. Whilst it is possible to discern some suggestion that IGIC may have authorised IGPC to enter into the JVA or the Third Amending Deed on its behalf, the difficulty is that there was little which suggested that that was sufficient to bind IGPH, which was apparently an intermediate shareholder. Even less can be the suggestion that the actions of IGIC would have bound IGEH.

Good faith

96    A separate attempt by CEPL to bind IGPH and IGEH to the Third Amending Deed and, specifically, cl 9A.2 was through the obligation between the parties to accord each other good faith. Clause 2.10 of the JVA provided:

2.10    Good Faith

Each Participant is to act in good faith towards the other Participants including, without limitation:

(a)    being just and faithful in all activities and dealings with the other Participants in relation to the Joint Venture;

(b)    attending diligently to the conduct of all activities in relation to the Joint Venture in which the Participants are involved; and

(c)    accounting promptly for all funds, including negotiable instruments, received by it on behalf of the Joint Venture.

97    The difficulty here is that the obligation of good faith is expressed to be solely as between the Participants, and the expression “Participant” is defined as being CEPL and IGPC. There is also no textual or contextual consideration which might expand the obligations under cl 2.10 to apply to the holding companies of the Participants.

98    The Participants’ obligation under cl 2.10 is to act in the carrying out of the terms of the agreement in commercial good faith. Such an obligation is not unlimited and certainly does not require a party to sacrifice its own interests for the benefit of the counterparty. It neither generates any expectation that the participants are to act other than in accordance with the agreed terms nor provides any indication that the parties acted as the agent of others when entering into the agreement.

99    Faced with these difficulties, CEPL submitted that IGPC had an obligation to do all that is reasonable to procure its holding companies to give notice of the proposed transaction and act as if bound by the terms of the pre-emption clause. This was said to be founded on the notion that all the companies in the InterGen Group were acting as a single economic unit.

100    There are more than a few difficulties with that submission. The first is that the individual creditors of the different InterGen companies may disagree with the view that they all constitute a single economic unit, such that their rights may be diluted amongst all of the entities. It is also contrary to the recognition of companies, even those which are part of a corporate group, as separate legal entities in their own right. A further difficulty is that there exists no legal or corporate power by which IGPC could require any of its parents to act as if they are bound by the pre-emption clauses, and none was suggested. Whilst holding companies might be able to control the conduct of subsidiaries, that is because they are able to exercise the shareholding voting power. There is no reciprocal right in the subsidiary.

101    Further, an obligation of commercial good faith or even good faith simpliciter in a contract does not require the party under the obligation to act contrary to their own interests and in the interests of the other contracting party, which is precisely what CEPL seeks from IGPC and its parent entities.

102    It was also submitted that the obligation of good faith is highly fact dependent and nuanced, and that may be accepted as true. However, even if that is accepted, and even if IGPC had an obligation as alleged, its non-observance is entirely immaterial given IGPC’s inability to influence the conduct of its parent company.

103    The consequence is that the obligation of IGPC to act in good faith towards CEPL does not support any conclusion that any agency existed and nor does it impede the making of the directions sought by the administrators.

Conclusion on cl 9A

104    The result is that cl 9A has no operation in relation to the potential sale of shares either by IGEH in IGPH, or IGPH in IGPC. The insurmountable difficulty is that neither IGPH nor IGEH are parties to the JVA, and have not been at any time.

Clause 9B

105    Clause 9B operates only whilst CEPL or a Related Body Corporate Assignee of it is wholly owned, directly or indirectly, by the State of Queensland and has an Interest of not less than 50%: see cl 9B.1. Upon satisfaction of that matter the clause is triggered where, if as a result of a proposed transaction, an InterGen Entity will cease to be a Subsidiary of its Ultimate Holding Company. By the definition in the JVA, the Ultimate Holding Company is InterGen (Cayman Islands) or any Holding Company of InterGen (Cayman Islands) nominated by IGPC as the substitute Ultimate Holding Company. As mentioned, that definition was inserted into the JVA by the Second Amending Deed of 12 October 2000.

106    As has also been addressed above, InterGen (Cayman Islands) was replaced as the Ultimate Holding Company on 1 March 2002, when InterGen (International) BV was nominated in its stead. In turn, on 2 December 2003, CEPL accepted notification that InterGen (International) BV ceased to be IGPC’s Ultimate Holding Company. There is now no nominated Ultimate Holding Company of IGPC for the purposes of the JVA.

107    As is discussed below, the consequence of this is that the type of transaction which the administrators propose to enter into will not trigger the operation of cl 9B.2. No InterGen Entity will cease to become a subsidiary of its Ultimate Holding Company because, in the events that have happened, there is no Ultimate Holding Company for the purposes of the JVA.

108    For CEPL it was submitted that cl 9B operates in a manner substantially different from cl 9A. That can be accepted, as it is expressly provided that it operates in circumstances other than a transfer within the scope of cl 9A. In relation to the transfer of shareholdings in subsidiaries, cl 9A applies where the proposed disposition is of a Controlling Interest, being a direct beneficial interest of 51% or more of the issued voting shares. Conversely, cl 9B will apply to a transaction which involves something less than a transfer of a Controlling Interest, but one which will have the effect that an InterGen Entity will cease to be a Subsidiary of its identified Ultimate Holding Company. The expression “Subsidiary” in the JVA has the meaning given to it by the Corporations Act, which relevantly concerns the ability of a body corporate to control the composition of the lower company’s board, to cast, or control the casting of more than one half of the votes which might be cast at a general meeting of shareholders, or if it holds more than one half of the issued share capital of the lower company. Therefore, if a proposed transfer of 20% of the shares in an InterGen Entity would cause it to cease to be a Subsidiary of its Ultimate Holding Company (assuming it had one) the clause becomes operative. On that happening, CEPL gains the right to acquire the Interest of the InterGen Entity which will cease to be a Subsidiary by reason of the transaction. Unlike cl 9A, the pre-emption does not create rights to acquire the assets being disposed of, but to the Interest held by the company that will cease to be a Subsidiary. Though this can be accepted, it must be kept in mind that the clause’s concern is with the right to acquire the InterGen Entity’s “Interest”. Only a Participant in the joint venture can have an Interest and, given the current constitution of the joint venture, the reference must be to IGPC.

109    However, none of that obviates the difficulty for CEPL that its failure to require the nomination of a replacement Ultimate Holding Company when waiving its pre-emption rights under cl 9B in December 2003, rendered that clause sterile. Presently, as far as cl 9B.2(a) is concerned, for the purpose of the type of transaction proposed by the administrators, neither IGPC nor IGPH or IGEH will cease to be a Subsidiary of its Ultimate Holding Company as defined in the JVA. None are subsidiaries of InterGen (Cayman Islands) or InterGen (International) BV, with the consequence that the clause does not apply.

No construction of cl 9B can breathe life into it

110    It is not possible to re-write the terms of the JVA so as to read the expression, “Ultimate Holding Company”, as meaning the Ultimate Holding Company (as defined by the Corporations Act) from time-to-time. Whilst that would, no doubt, enhance the operation of cl 9B.2 in a manner favourable to CEPL, there is no warrant for construing the definition in that way. There is nothing in the JVA or surrounding circumstances to suggest that the parties meant other than that the expression had the meaning which they had specifically ascribed to it, or that the parties were concerned other than with the change of ownership at the InterGen (Cayman Islands) level or, subsequently, the InterGen (International) BV level. Indeed, CEPL submitted that the pre-emptive rights were there to, in part, ensure that it knew and approved of the identity of those with whom it was doing business. It was, no doubt, for that reason that the expression, “Ultimate Holding Company”, specifically identified the relevant company and made provision for the identification of any replacement. With respect to the submission to the contrary, it is unreal to suggest that the expression was to correspond to the same term used in the Corporations Act. In a number of respects in the JVA the parties adopt the meanings of terms and expressions as they are used in the Corporations Act. They may have done the same with the expression, “Ultimate Holding Company”, but they expressly eschewed that course. It would be entirely incompatible with the deliberate contractual structure of the JVA were the specifically defined term to be afforded some other meaning.

111    It is noted that the chapeau to the definition section contained in Schedule 1 of the JVA reads, “In this Agreement, unless the context otherwise requires”. CEPL relied upon this in seeking to divorce the expression, “Ultimate Holding Company”, in cl 9B from the defined term. Whilst definitions in a contract should not be applied where to do so would be at variance with the context or the general intent gathered from the whole of the instrument: Halford v Price (1960) 105 CLR 23, 33: here, the parties intended to specifically identify the Ultimate Holding Company of each Participant which was, inter alia, relevant to the operation of pre-emption clauses. In relation to the Ultimate Holding Company of IGPC, it is relevant that InterGen is specifically referred to in the JVA and, especially, in cll 9A and 9B. All this supports the conclusion that the clause was intended to operate with respect to the ultimate control of IGPC being InterGen, rather than by reference to any general change of control at the Ultimate Holding Company level.

112    The previous discussion identifying how cl 9B became redundant reveals that it is not poorly drafted. Rather, the mechanism it provides requires dutiful contract administration, as its operation is dependent on the effect of the definition of Ultimate Holding Company. The inclusion of that definition was specifically intended to attribute to each of IGPC and CEPL an identified Ultimate Holding Company and, in the case of IGPC, provision was made for alterations to the identity of the Ultimate Holding Company. It appears that, on occasion, some attention was paid to updating the JVA when an alteration to the identity of IGPC’s Ultimate Holding Company was made, but that did not happen on all occasions.

113    On one view, affording the expression, “Ultimate Holding Company”, the meaning which the parties expressly gave it may mean that it was capable of being used only once, as was submitted by CEPL. That, however, may be due to the nature of the clause. It operates in relation to a transaction which will have the result that an InterGen Entity will cease to be a Subsidiary of its Ultimate Holding Company. If CEPL waives its entitlement to acquire IGPC’s interest, any subsequent transactions in relation to that particular InterGen Entity could not have the triggering effect because the relationship involving the Ultimate Holding Company will have been brought to an end. Indeed, it is because the transaction in question will have that result that the right of pre-emption is given.

114    It may be that, if the initial transaction in question was to effect a disposition of a company at a lower level, cl 9B could operate on subsequent occasions in relation to other companies in the chain. However, where the effect of the transaction is to change the Ultimate Holding Company, it is arguable that in the absence of any nomination of a new Ultimate Holding Company, the clause will have been spent. If so, that is the nature of the clause.

115    In seeking to avoid that conclusion, CEPL relied upon the observations of the Queensland Court of Appeal in Pauls v Norco, where it was held that the pre-emption clause in question had an enduring operation. Unlike the present case, that clause was concerned with changes to the effective control of the joint venture participant subsisting at the commencement of the contract. So, if the effective control of the participant altered from that which existed at the time of the commencement of the contract, an option arose for the other joint venturer to acquire the other’s interest. At an earlier stage a change had occurred in the control of the Pauls interests and with the consent of the Norco interests. Subsequently, a further change occurred in the control of the Pauls interests, and Norco claimed to exercise a right to acquire the Pauls interests as a result. It was contended that the control had not changed from that which existed at the time of the commencement of the contract, such that the clause did not apply. This was rejected by the Court of Appeal which found ambiguity in the clause and, adopting a purposive approach, read the clause on the basis that the words referring to the nature of the control existing at the commencement of the contract had no operative work. The purpose of the clause was said to be to prevent one of the joint venturers from being bound to a joint venture agreement with a party which it did not trust or with whom it did not wish to work.

116    The circumstances of the present matter are substantially different. Here, the parties expressly specified their respective Ultimate Holding Companies for the purpose of the JVA and that selection should be afforded weight. Adopting that approach does not diminish the purpose of the pre-emption clauses. At any time when a proposed transaction triggers the clause, the party having the benefit of it may agree to the proposed transfer or exercise the right of option. The option exists so that the party with the benefit of it can either accept the alteration or acquire the interest being disposed of. Of course, that party may waive the benefit of the clause and allow the transfer to take effect and, if it does, it results in new entities having interests, albeit indirect, in the relevant joint venture Participant. The waiving party may also seek an amendment to the JVA to take into account the alteration of the identity of the Ultimate Holding Company or the nomination of a substitute Ultimate Holding Company as a condition of its waiver of the pre-emption right. The choice remains that of the party with the benefit of the pre-emption clause. What it is not able to do is waive the pre-emption right, thereby allowing an alteration to the corporate structure behind the joint venture Participant without any corresponding change being made to the JVA’s terms, and then seek to assert that the pre-emption clause will operate in the same way in the future.

117    It should also be observed that pre-emption clauses can easily be drawn so that they operate in relation to any entity that becomes a joint venture participant. Necessarily, they can be drawn broadly and without specification of the entities involved or by reference to their specific corporate structure. In the present case, the parties adopted a different approach and agreed to a limited clause. It is not clear why that approach was taken, though it may well be that it had been assumed when the parties entered into the Second and Third Amending Deeds that if there was to be an alteration to the Ultimate Holding Company, CEPL would acquire IGPC’s interest in the JVA and it was not anticipated that any other interests would be included in the joint venture. Ultimately, it is not necessary to determine why the clause was drawn as narrowly as it was.

118    Despite the above observations, it is likely that cl 9B can have an enduring effect, so long as adequate attention is paid to the contract’s administration.

119    It is not the case that the Ultimate Holding Company of IGPC could only be InterGen (Cayman Islands). The definition has provision for self-regeneration by reason of the ability of IGPC to nominate a new Ultimate Holding Company. Indeed, as the evidence disclosed, it did so on 1 March 2002 when, consequent upon a corporate restructure, InterGen (International) BV became the Ultimate Holding Company. On CEPL’s construction of the JVA, that would have triggered the pre-emption rights, though it is apparent that they were not exercised. Therefore, as long as CEPL requires the nomination of a new Ultimate Holding Company as a condition of waiving its pre-emption rights when a restructure occurs, that will result in the creation of a new Ultimate Holding Company and the clause will have continued operation.

Conclusion on cl 9B

120    The result of the foregoing is that cl 9B does not apply to the present circumstances. The transaction in question will not cause IGPC to cease to be a Subsidiary of the Ultimate Holding Company as defined. As a result, the alleged right of pre-emption to acquire IGPC’s Interest, as that term is defined, does not arise.

Clause 2.12(d) and non-alienation by the Participants

121    The direction sought by the administrators includes advice to the effect that a sale of the IGPC or IGEH shares would not contravene cl 2.12(d) of the JVA. That clause provides that each Participant covenants and agrees not to “sell, assign, dispose of or otherwise transfer the whole or any part of its Interest except as specifically provided in or permitted by Clauses 7, 8, 9, 9A or 9B”.

122    For obvious reasons, little time was spent at the hearing in relation to this clause. It restrains only the Participants and is only concerned with “Interests” as defined. It has no application to the sale of shares contemplated by the administrators by IGEH or IGPH.

Is there utility in the making of the directions?

123    CEPL opposed the Court giving the administrators the directions sought having regard to “the way the application [was] constituted and propounded”. First, it asserted that the directions would be inutile because any conclusions drawn as to the manner in which the JVA operates would not be binding on it and would only provide comfort and relief from liability to the administrators (providing that their disclosure had been full and frank). Secondly, it said that the making of the direction had the potential to adversely affect CEPL’s claimed contractual rights with the consequence that it may be denied any adequate remedy in respect of the loss of its contractual rights. Further, it contended that the evidentiary basis for the application was deficient.

The nature of the power under s 90-15 of the IPS

124    In Re McCabe (in their capacity as joint and several deed administrators of the companies listed in Sch 1) (2023) 169 ACSR 630, 636 [22] – [26] (Re McCabe), Cheeseman J set out the principles on which the power under s 90-15 of the IPS is to be exercised, which I gratefully adopt. They are as follows:

[22]    The Court may make such orders as it thinks fit in relation to the external administration of a company: s 90-15(1) of the IPS. A company is taken to be under external administration if a deed of company arrangement has been entered into in relation to the company: s 5-15 of the IPS. The plaintiffs have standing to apply for relief under s 90-15 of the IPS as officers of the company: s 90-20(1)(d) of the IPS and s 9 of the Act.

[23]    It is well recognised that s 90-15(1) of the IPS confers a very broad power on the Court to resolve issues arising in relation to the administration of the company: see for example One T Development Pty Ltd v Kreji (in his capacity as liquidator of ENA Development Pty Ltd) [2023] NSWCA 120 at [33] to [34] per the Court (Ward P, Leeming and Mitchelmore JJA); Kelly (as joint and several liquidators of Halifax Investment Services Pty Ltd (in liq) v Loo (No 8) (2020) 144 ACSR 292; [2020] FCA 533 at [51] (Gleeson J). The Court’s power is to be exercised in a way that is consistent with the object of Part 5.3A of the Act, as encapsulated in s 435A of the Act and the object of the IPS, as stated in s 1-1 of the IPS.

[24]    Powers of the kind contained in s 90-15 are intended to facilitate the performance of an external administrator’s functions and accordingly should be interpreted widely to give effect to that intention where it is advantageous to the administration. It is expected that the administrator will make full and fair disclosure of all relevant facts and circumstances when seeking an order in the nature of judicial advice: Re Hill (in their capacity as joint and several voluntary administrators of Autocare Services Pty Ltd) [2021] FCA 167 at [43] (Farrell J).

[25]    The “prevailing principle” to be applied in circumstances where liquidators and administrators request a judicial direction in respect of a business or commercial decision, is that the decision must give rise to an issue requiring the exercise of legal judgment. An issue of this kind includes one of substance or procedure or of power, propriety or reasonableness of the decision: Re Ansett Australia Ltd (No 3) (2002) 115 FCR 409; 40 ACSR 433; [2002] FCA 90 at [65] (Goldberg J); Re MF Global Australia Ltd (in liq) (2012) 267 FLR 27; [2012] NSWSC 994 at [7] to [9] (Black J).

[26]    Further, the power extends to the determination of substantive rights, provided any necessary and proper parties have been given an opportunity to be heard and/or joined: see One T Development at [35]. See also Australian Securities and Investments Commission v Jones [2023] WASCA 130 at [306] to [307] (Buss P, Mitchell and Beech JJA).

125    CEPL submitted that the proposition referred to at [26] of her Honour’s reasons goes further than is legitimate, because substantive rights can only be determined where the parties affected are joined and given an adequate opportunity to be heard. Reliance was placed on the following passage in John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1, 46 [131]:

Walker Corporation submitted that where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined. That submission is correct. The Court of Appeal’s orders directly affected Walker Corporation. The majority of the Court of Appeal (Macfarlan JA, Giles JA concurring) erred when it held to the contrary.

(Footnotes omitted).

126    So the submission went, it is not possible to bind a party merely because they are given notice of the proceeding and an ability to be heard (and are, in fact, heard at the hearing), if they are not formally joined as a party. Whether the passage quoted above was intended to go so far need not be determined in this matter, though it does raise an interesting question.

127    In any event, here, the advice sought concerns the administrators’ conduct of the administrations as to the manner in which they might act as regards to the rights under the JVA. It was not suggested that any conclusion as to the operation of the JVA on which a direction might be based would bind CEPL. Its rights to specific performance of the JVA, if any, would remain unaffected by the direction.

128    In addition to the matters referred to by Cheeseman J in Re McCabe, the Court was referred to the observations of McEvoy J in Colbran, in the matter of Balsub Pty Ltd (in liquidation) [2023] FCA 1635 [30] (Balsub), where his Honour observed the following:

Section 90-15 confers two separate heads of power on the Court, being to:

(a)     give judicial directions (as were made formerly under ss 479 and 511 of the Corporations Act), which provides comfort and relief from liability to a liquidator if the liquidator acts in accordance with a direction which turns out to be wrong: One T Development Pty Ltd v Krejci (in his capacity as liquidator of ENA Development Pty Ltd) [2023] NSWCA 120 at [40] and [42] (Ward P, Leeming JA and Mitchelmore JA); and

(b)     make orders (which were not able to be made under ss 479 or 511 of the Corporations Act) that can affect rights and obligations, or conclusively determine controversies, that arise in relation to an external administration: see, for example, Re Hawden Property Group Pty Ltd (ACN 003 528 345) (in liq) (2018) 125 ACSR 355 at 357 [7]-[8] (Gleeson JA); Joiner (Liquidator), in the matter of CuDeco Limited (Receivers and Managers Appointed) (in liq) [2020] FCA 1661 at [93]-[97] (Banks-Smith J); Re Woodhouse (in their capacities as joint and several liquidators of Forex Capital Trading Pty Ltd (in liq) (ACN 119 086 270)) (2022) 159 ACSR 669 at [51] (Banks-Smith J).

(Emphasis omitted).

129    His Honour added at [32]:

That power may be exercised where it is just and beneficial to do so: see Federal Commissioner of Taxation v ACN 154 520 199 Pty Ltd (in liq) [2017] FCA 444 at [64] (Gleeson J), citing Gusdote Pty Ltd v North Queensland Land Development Pty Ltd (No 4) [2012] FCA 759 at [6]-[8] (Emmett J); Lo v Nielsen & Moller Autoglass (NSW) Pty Ltd [2008] NSWSC 407 at [29]-[31] (Barrett J). Alternatively, the power may be exercised where a liquidator’s decision to act in a particular way is likely to be contentious: Re One. Tel Ltd and Others (2014) 99 ACSR 247 at 256 [35] (Brereton J), citing Re Ansett Australia Ltd and Korda (2002) 115 FCR 409 at 428 [65] (Goldberg J), Re 7 Steel Distribution Pty Ltd (in liq) (recs and mgrs apptd) [2013] NSWSC 669 at [20] (Black J), and Re S&D International Pty Ltd (in liq) (No 7) (2012) 92 ACSR 38; [2012] VSC 551 at [58]-[59] (Robson J). Directions will not generally be granted in relation to a decision that is purely commercial, but may be granted where there is a “particular legal issue raised for consideration or attack on the propriety or reasonableness of the decision in respect of which the directions are sought”: Krejci, in the matter of Union Standard International Group Pty Ltd (Administrators Appointed) (No 2) [2020] FCA 1111 at [10] (Stewart J), citing Re Ansett at 428 [65] (Goldberg J).

130    The observations of Downes J in Park, in the matter of Queensland Nickel Pty Ltd (in liq) (No 3) [2022] FCA 1301 [119] (Queensland Nickel (No 3)) are also relevant. In particular, her Honour’s appropriate observation that the power to give directions is intended to facilitate the performance of the external controller’s functions and should be construed widely to give effect to that intention. It is also useful to note her Honour’s observation that the power enables the Court to give directions that provide guidance on matters of law and as to the reasonableness of a contemplated exercise of discretion.

131    It is to be remembered that the giving of directions has the limited effect of protecting an administrator, who has made full and fair disclosure to the Court and acts in accordance with the directions, from claims by creditors or contributories in respect of alleged breaches of duty arising from the direction: Balsub [33]. In this respect, in Bastion v Gideon Investments Pty Ltd (in liq) (No 2) (2000) 35 ACSR 466, 476 [49] (Bastion v Gideon (No 2)), Austin J observed that the protection which was given to an external controller by a direction under s 479(3) of the Corporations Act does not extend to any liability to third parties whose rights are interfered with when they should not have been, but only to unsecured creditors or contributories in respect of any alleged breach of duty as liquidator. In that case (at 473 [33]) the liquidator was required to determine whether a trust existed which governed the rights of various claimants who were identified as investors. As he was uncertain as to that issue, he properly sought the protection of directions from the Court. Austin J observed (at 473 [36]) that the available evidence about the financial affairs of the company and the existence of the trust was very slim, and that the position was unlikely to become clearer through further investigations. For that reason, his Honour was prepared to assist the liquidator by making the directions sought.

There is good reason to exercise the power in the present case

132    Subject to what is said below, there is good reason to exercise the power to give the judicial direction sought in the present case. The administrators are faced with the obligation to bring the administrations to an end and have identified that part of achieving that goal is to cause an effective sale of the interests held by one of IGPC’s holding companies. To this end they have undertaken a sale process and sought binding offers from a number of entities. They are now of the opinion that a valid transfer of interest can occur at the IGPH or IGEH level by the alienation of shares held by either of those companies. CEPL opposes that course and has asserted that it has a superior right to acquire those shares supported by the pre-emption rights under the JVA. In such circumstances, in order to allow the administrators to fulfil their function, it is necessary to provide them some assurance that they will be free from the claims of creditors and contributories in relation to their pursuit of the contemplated sale.

133    On the material raised by CEPL, the risks which the administrators face in marketing and selling the shares held by IGPH or IGEH might include claims for misleading or deceptive conduct in respect of that which they are purporting to sell, inducing a breach of contract, or a breach of duty or contract. That risk remains even if, as these reasons indicate, CEPL has no relevant right of pre-emption to protect. The making of any of these claims may result in the intended sale of shares being prevented or aborted with the result that substantial costs in the administration would be wasted and lost. Contributories or creditors might then allege that the administrators have caused losses as a result of their breaches of duty. However, if the administrators pursue a sale in accordance with the Court’s direction and they have made appropriate disclosure, they will be free from any claim for breach of duty by them in the stewardship of the administrations. The making of the direction sought will also have the benefit of allowing them to proceed with greater speed and efficiency.

Has CEPL had sufficient opportunity to adduce relevant evidence?

134    As mentioned, CEPL submitted that the Court should refuse to make the directions sought because there has been insufficient time for it to assemble the documents which are necessary for the purposes of the constructional question underlying the direction sought. It was said that there may be other documents which might be discovered upon a more detailed search which is specifically directed to the evolving contractual arrangements between it and IGPC or the construction of the terms.

135    That was a rather bold submission. Properly contextualised, it means that the operator of one of Queensland’s substantial energy generators is unable to ascertain, within a relatively short period of time, its rights, liabilities and obligations in relation to the activities which it undertakes. Apart from being concerning, the proposition is somewhat incredulous. More so, because CEPL’s solicitors, Clayton Utz, have been acting for it since 1998 and, specifically, in relation to the contractual alterations, and continues to act for CEPL in the present litigation. It would be somewhat astonishing were CEPL’s solicitors not able to locate within short order the documents which relate to the contractual arrangements concerning the JVA in respect of which they were instructed.

136    There was also no evidence to the effect that any lack in continuity of the personnel at CEPL or its parent CSEL had impeded any attempt to locate all of the documents relevant to the amendments to the JVA. If any such impediment existed, its scope and nature were not made clear.

137    By an affidavit sworn on 24 September 2024, Mr Brett Cook, a partner of Clayton Utz, gave some detail of the attempts made to locate documents relevant to the scope and meaning of the JVA. Mr Cook deposed to having been informed of certain things by Ms Jane Fitzpatrick, Special Counsel for CSEL, who had access to CSEL and CEPL’s records. That included the degree to which each of CSEL and CEPL’s electronic document management systems had been interrogated for evidence of relevant documents, as well as its bank of hard copy historical records. To a large extent, the thoroughness of the search cannot be criticised. However, it was indicated that further searches using different search parameters could be undertaken if further time was available and that CSEL and CEPL would be able to contact persons referred to in the documents located to date to ascertain whether they are aware of additional matters.

138    Mr Cook deposed that he did not believe that CEPL had sufficient time to carry out the necessary searches for all the information surrounding the contractual relationship between the parties and, especially, to ascertain the circumstances in which cll 9.1, 9A and 9B were inserted into the JVA, and to consider whether there were surrounding facts known to the parties which may be relevant to the construction of those terms.

139    It was claimed that CEPL could not be expected to draw out of the materials in its possession all of the documents relevant to the contractual relationship between it and IGPC insofar as the JVA was concerned in a relatively short period of time. However, the foundation for that submission was not entirely clear. As mentioned, CEPL and CSEL are substantial entities with substantial resources at their disposal and are, and have been, represented for many years by leading solicitors. Rather than that advanced by CEPL, the appropriate question is why would CEPL not be able to ascertain in short order the relevant contractual rights between it and IGPC. In the usual course of business, one might expect that a company of its size would have a contracts administration department which manages such matters or, if such matters were dealt with by their long serving solicitors, it would be a simple task to ask them to provide the relevant information. That is particularly so in circumstances where consideration of the parties’ rights inter se has occurred in the recent past.

140    The material before the Court revealed that a substantial amount of documentary evidence exists in relation to the variation of the JVA since its inception. The only really relevant issues are the identity of the terms of the JVA and any documents which might provide a context for its interpretation. There seems to be no doubt about the first and no suggestion was made to the contrary. In relation to the second, the correspondence between the parties in relation to the identity of IGPC’s Ultimate Holding Company appears to have been produced and, again, it was not suggested that any specific identifiable and relevant documents were missing.

141    When the administrators’ application for directions first came before the Court, CEPL appeared and sought to have the hearing adjourned to allow it to put on its material. That adjournment was granted and, in the interim, it appears to have filed the material relevant to its points of construction.

142    The evidence also established that the administrators have undertaken reasonable investigations into the issue of the contractual rights between IGPC and CEPL. In an affidavit affirmed on 2 October 2024, Mr John Park, one of the administrators, deposed to the steps which he had taken for the purpose of obtaining the books and records of the IG Power Group. He then identified the nature of the books and records and their locations. From the searches and information gathering exercise, he was able to identify the several versions of the JVA and its amending documents. He also deposed that he had instructed his staff to undertake relevant searches for any other documents relating to the amendments to the JVA, including correspondence passing between the parties or their related entities. Searches were also undertaken to ascertain documents which might suggest the existence of any agency relationship between the companies in relation to the entry into, or performance of, the obligations of the JVA. Mr Park identified the results of those searches and the relevant documents were produced.

143    Given the nature and scope of the material produced together with Mr Park’s evidence, the Court can be satisfied that the administrators have caused reasonable searches and inquiries to be undertaken in relation to the material relevant to the identity of the terms of the JVA, its amendments, and its construction. Further, given the nature of the parties and their legal advisers and the circumstances of this case, it is not likely that additional searching for documents will elucidate the matter further.

Previous consideration of pre-emption rights

144    It is also relevant that the issue of the pre-emption rights between CEPL and IGPC under the JVA has not just recently arisen.

145    Reference has been made in these reasons to a letter of 10 December 2001 from InterGen (Australia) Pty Ltd to CSEL concerning an intended restructuring of the InterGen corporate arrangements and the indication that the proposed arrangement did not trigger any pre-emption rights because the relevant transfer was not in excess of 50.1% of the shares held. That letter was somewhat unusual given that, whilst there had been correspondence about the granting of pre-emption rights in the JVA, the relevant amendments had not been made by that time.

146    On the other hand, it does give some indication that, at that time, there was a belief within the InterGen Group that certain pre-emption rights may apply to the transfer of shares in subsidiaries. Although CEPL submitted that this indicates that the JVA was intended to bind IGPC’s holding companies, that inference is not sound. Clause 9B is directed at the creation of a right of pre-emption in respect of an “Interest”, the meaning of which concerns the Participant’s interest in the joint venture. It follows that a right may arise which is enforceable against IGPC and no other InterGen company. No doubt, such matters involving the construction of the JVA were in the minds of the correspondents at the time.

147    On 20 June 2003, InterGen (Australia) Pty Ltd again wrote to CSEL and advised that it was considering the sale of an interest that indirectly wholly owned IGPC, and sought CSEL’s agreement to a confidentiality agreement which it would use for the purposes of negotiating a sale. By a response sent on the same day, CSEL asserted that the sale of the interest raised the issue of pre-emption rights which CSEL claimed that it held. By a response sent on 23 June 2003, InterGen indicated, inter alia, that it “will of course honor (sic) the pre-empt if it becomes relevant”. Though this was seized upon as indicating an acceptance that the sale of interests by InterGen was subject to the pre-emption rights, there was no acceptance that they were operative in that circumstance. It was also submitted that this indicated that the parent company was aware that it was bound by the pre-emption rights as a result of some agency having existed, though the lack of any relevant acceptance of that in InterGen’s reply undermines that notion. Somewhat more importantly, the pre-emption being discussed might be that arising under cl 9B, which only requires that IGPC be a party to the JVA and does not assume that its holding companies are as well. Again, such matters required a consideration by the parties of their respective rights under the JVA.

148    The issue of the existence or otherwise of any rights of pre-emption was also raised more recently. On 2 November 2022, IGPC wrote to CSEL and CEPL in relation to the rights under the JVA and, in particular, the restructuring of the Australian assets of the InterGen companies. The letter sets out the corporate structure of the InterGen companies and their partner companies and identified that the Czech company, Sev.en Gamma, would become, indirectly, the sole owner of IGPC. The identified transaction by which this was to be achieved, was through an upstream transfer of shares and there was to be no direct transfer of ownership of IGPC. IGPC asserted that there were no legal requirements to obtain the consent of CEPL or CSEL to the restructuring because cl 9.1 of the JVA did not apply to the transfer, cl 9A.2 was not applicable because none of the transferring parties were party to the JVA, and cl 9B.2 did not apply because on 15 December 2003, CEPL waived its rights under that clause and, since then, there had been no nominated Ultimate Holding Company for the purpose of that clause.

149    CEPL responded to that letter in correspondence dated 12 December 2022 in which it advised that CEPL had considered the propositions in the letter of 2 November 2022 and had engaged with its stakeholders in relation to them. It was stated that CEPL and CSEL would consent to the proposed restructure if IGPC nominated an Ultimate Holding Company for the purposes of the definition of that expression in the JVA. To a not insignificant degree that latter statement seemingly confirmed IGPC’s position that, since 2003, CEPL had no Ultimate Holding Company for the purposes of the JVA. It can also be inferred from the letter that CEPL was able to investigate and ascertain for itself the relevant contractual relationship between the co-venturers and was confident to make the statements it did. No suggestion was made to the effect that CEPL did not have sufficient time to obtain the relevant documentation surrounding the contractual variations which had occurred since the agreement’s inception.

150    By a letter of 30 January 2023, IGPC responded to CEPL’s correspondence of 12 December 2022, making an offer which included it nominating a new Ultimate Holding Company subject to the completion of the restructure which was proposed. It proposed that certain acknowledgements be made by CEPL as to the operation of the JVA, including that cll 9.1, 9A and 9B did not apply to the proposed restructure. The letter sought acknowledgement by the countersigning of the letter and its return to IGPC. It included the form of consent required by it in return for the nomination of the new Ultimate Holding Company.

151    By a letter of 16 February 2023, CEPL indicated that whilst it was prepared to accept a nomination by IGPC of a new Ultimate Holding Company for the purposes of the JVA subject to the completion of the foreshadowed restructure, it would not acknowledge that cll 9.1, 9A and 9B did not apply.

152    There is no indication in the material that the parties reached any further consensus in relation to this issue, though given the refusal to acknowledge the non-application of cll 9, 9A and 9B, it might be safely assumed that the agreement sought was not reached. This correspondence has only recently occurred and there was no suggestion that the totality of it on this issue was not before the Court.

153    Further correspondence occurred between the parties in relation to CSEL and CEPL’s claimed rights of pre-emption in July 2024. On 25 July 2024, Clayton Utz for CEPL wrote to White & Case, the solicitors for the administrators, making certain assertions as to their client’s pre-emption rights under the JVA. The letter asserted, inter alia, that any proposed sale at any level would trigger the rights under cll 9, 9A or 9B of the JVA, and that those rights were capable of enforcement through an action for specific performance against all the InterGen companies. This letter is especially relevant not only because it reveals that the issue of the pre-emption rights has been agitated between the parties for some time and recently, but also because there was no mention of there being anything in the nature of agency, collateral contract or estoppel which affected the rights of the parties inter se.

154    The import of the above is that it is apparent that, over an extended period of time, the parties have been aware of and have agitated inter se, the existence of CEPL’s entitlement to enforce the rights of pre-emption in the JVA. It can be expected that, in making the statements which it did, CEPL had verified for itself its understanding of the circumstances surrounding the way the JVA had been varied over time or how rights had been exercised under it. Importantly, it made no suggestion in any of its correspondence that it has not had sufficient time to ascertain its contractual position.

155    It is also to be recognised that the making of the present application will have moved the parties to make appropriate searches for any documentation relevant to the contractual relationship between IGPC and CEPL. Though complaint was made that the administrators did not appear to produce all the documents relevant to that issue, it is noted that this application had the result that CEPL was able to produce documents which were in addition to those which had been previously produced and which went to the nature of parties’ rights under the JVA. There is no substantive evidence that other relevant documents exist which have not been located and adduced into evidence.

156    The material sufficiently demonstrates that the parties have had considerable time to investigate their contractual relationship inter se and to conduct appropriate inquiries in relation to it. Further, the uncontested evidence reveals that the administrators have made reasonable inquiries of the documents relevant to the contractual relationship between IGPC and CEPL. These circumstances have the consequence that the Court should not be deterred from giving the direction sought under s 90-15 of the IPS on the basis that the parties have had insufficient time or cause to ascertain the terms of the JVA and their entitlements under it.

157    Even if it is assumed that there may be some paucity in the documentation, the searches undertaken by the administrators should have revealed all that is required for the purposes of identifying the true state of the contractual relationship between the parties. If they have failed to do so, it is likely to be the result of poor record keeping by the IG Power Group. That, of itself, might generate a sufficient reason to make the orders sought. As was observed in Bastion v Gideon (No 2) at 476 [48], if an external controller is left in doubt after undertaking appropriate searches for information about the company’s legal position, it is appropriate for them to seek a direction from the Court to protect themselves from the eventuality that other information might come to light.

Should the administrators comply with cll 9A and 9B in any event?

158    It was submitted that the direction should not be given, because it would be preferable to give a direction that the administrators comply with cl 9A or cl 9B of the JVA on the basis that it would be beneficial to the creditors. If notice was given for the purposes of the pre-emptions, CEPL could choose whether it would match the price at which the administrators intended to sell. If it did, the creditors would not be worse off and the risk of any future litigation about the existence of the pre-emptive rights would be removed.

159    However, the difficulty with this is that, if the administrators are entitled to sell on the open market without the need to offer the interests or shares to CEPL as well, there is no reason why they should be required to do so. Quite clearly, the sale transaction can be more easily pursued and completed if that is the case. It would be odd for the Court to give advice that the administrators should comply with rights of pre-emption to which they are not bound. In addition, if the effective clause was 9B, the pre-emption right does not apply in relation to the shares offered for sale, but to the interest of the Subsidiary. Moreover, the price for the “Interest” is not the actual market price but may be a lower price worked out in accordance with the clause.

The absence of prejudice to CEPL

160    The application was opposed by CEPL primarily on the basis that it would be irremediably prejudiced by the conduct of the administrators if the proposed sale is effected with the protection provided by the Court’s directions.

161    That submission stood somewhat inconsistently with CEPL’s submission that it is not bound by any determination made in the course of giving the directions. Whilst it has been afforded an opportunity to be heard on this application, it has chosen not to become a party and it will not be bound by the conclusions reached, and no matter of construction will have been determined against it. Indeed, it was one of Mr Brereton SC’s submissions that the directions should not be given because they lack utility, given that they do not impact CEPL’s rights in any way.

162    One aspect of the direction sought was that the disposal of shares at the IGPH or IGEH level might occur otherwise than through a deed of company arrangement. This was said to give rise to the possibility of the sale occurring without notice to CEPL in its capacity as a creditor, such that it would not then be able to act to intervene in the sale. Mr Brereton SC submitted that the appropriate course would be for the administrators to identify the preferred bidder for the shares and then seek a direction of the Court to enter into an agreement with that party.

163    Whilst there exists a possibility that the administrators might embark upon the sale of shares at one level or another and without the knowledge of CEPL, it is unlikely. They are fully aware of the competing protagonists in relation to the joint venture interests in the Callide Power Station and are unlikely to bind themselves to sell any of the assets without obtaining judicial advice before doing so. Indeed, as is discussed in more depth below, following the hearing of the present application, they made a further application for directions in relation one of two conditional contracts for the sale of the assets of the companies in administration. CEPL is aware of the existence of the contracts which the administrators intend to pursue and it is able to take such action as it sees fit.

164    A similar submission was made to the effect that the administrators should give CEPL notice of any intention to complete a sale of any assets of the companies under administration. Whilst there may have been some force in that when the matter was heard, the circumstances have now changed. CEPL is aware of the contracts into which the administrators have entered and is able to protect its rights as it sees fit. In any event, given the current circumstances, the administrators are most unlikely to act in any precipitous way.

165    Ultimately, CEPL’s submission that it will be irremediably prejudiced if the direction is made is overstated. Its perceived rights to specific performance of the pre-emption clauses, or to damages for breach of them, remain unaffected if the direction is made. The fact that any claim for damages would need to be made against a company (or companies) in administration or under a deed of company arrangement does not impact the appropriateness of making the direction sought. CEPL’s related contention that the Court should decline to give the direction as a matter of discretion should also be rejected. The risk that the construction of cll 9.1, 9A and/or 9B may be determined differently in subsequent proceedings is low. For the reasons given above, it is unlikely that, given more time, CEPL would be able to identify further documents which bear materially upon the questions of construction. In circumstances where declining to give the direction sought will cause further delay to the finalisation of the administrations of the IG Power Group, this factor carries little weight.

The administrators’ second application and CEPL’s application to reopen

166    As mentioned above, following the hearing of the present application for directions, the administrators filed a further interlocutory process by which they sought a second judicial direction concerning the entry by IGPC into a contract for the sale of its assets to CEPL (the “IGPC SASA”) and an extension to the convening period of the IG Power Group of companies. Certain affidavits were filed by the administrators in support of those applications, which caused CEPL to request that the Court urgently hold a mention of the first application for directions (being the application the subject of these reasons).

167    At that mention, CEPL indicated that it considered that there were additional facts which were not known or knowable by it at the time of the hearing on 3 October 2024 which were relevant to the Court’s determination of the first application and, in particular, to the utility and appropriateness of the giving of the direction sought. It was determined that CEPL should be given an opportunity to identify those matters and make short submissions about them prior to the delivery of this judgment. CEPL filed its submissions on 7 November 2024, in which it also indicated its reliance upon parts of two further affidavits affirmed by Mr Park on 22 and 29 October 2024 respectively. The administrators filed their written submissions in reply on 11 November 2024.

168    By those further submissions, CEPL submitted that the direction sought in the present application should no longer be made or, alternatively, that the application should be adjourned to a date to be fixed. That position was advanced on the basis that the factual substratum relevant to the utility of the application has shifted significantly since the hearing.

169    As can be discerned from the above reasons, when the application was heard on 3 October 2024, no specific proposed share sale transaction was identified. The direction was sought to provide guidance and comfort to the administrators in conducting the ongoing sales process. As CEPL identified in its further submissions, since the hearing:

(a)    the sales process has culminated in the IGPC SASA referred to above, as well as the entry by IGEH into a share purchase agreement with Sev.en Global Investments a.s. for the sale of its shares in IGPH (the “IGEH SPA”);

(b)    the convening period has been extended to 28 February 2025; and

(c)    the second judicial direction application has been set down for hearing on 28 and 29 January 2025.

170    CEPL asserted that, if the second direction is given and the IGPC SASA completes, any controversy about CEPL’s pre-emptive rights will disappear, as the JVA terminates upon one Participant owning all of the Interests in the joint venture. Alternatively, it asserted that, if the Court does not give the second direction, the administrators would undoubtedly seek a specific direction in respect of the IGEH SPA.

171    CEPL’s primary submission was that there is no longer an occasion for the Court to give prospective guidance to the administrators: the sales process “has reached its natural end”, and giving the direction now would be foreign to the purpose for which judicial advice is given, namely, to provide comfort and relief from liability.

172    Ultimately, CEPL’s submissions were insubstantial, and must be rejected. Whilst the sales process has resulted in the entry into the IGEH SPA and the IGPC SASA, neither of those transactions have been completed. Critically, both are subject to certain conditions (though the content of those conditions is confidential). Notwithstanding the entry into the IGEH SPA, the direction will still function to provide the administrators comfort and relief that they will be free from the claims of creditors and contributories in relation to their pursuit of a sale within the scope of the advice. As the administrators submitted, the size and complexity of the administrations, the prospect of an attack on the reasonableness of the decision made by them, and the diametrically opposed interests which need to be balanced in the sales process, all provide bases to make the direction sought: see In the matter of RCR Tomlinson Ltd (administrators appointed) [2018] NSWSC 1859 [14].

173    With respect to CEPL’s submission to the contrary, the entry into the IGEH SPA does not render the direction retrospective. There is a live issue as to the proper construction of the pre-emptive rights clauses under the JVA, and the resolution of that issue will permit the IGEH SPA to complete. Although CEPL submitted that this would cause it prejudice, it is aware of the steps which the parties to the IGEH SPA might pursue once the direction is given, and it is capable of taking such action as it sees fit.

174    Finally, whether the administrators will need to make a further application for directions in respect of the IGEH SPA is not relevant to the present application. The judicial advice given in these reasons is broad and likely to assist in the resolution of any future application, at least in part, should one be necessary. Indeed, the breadth of this advice is likely to assist the administrators in completing the contract into which they have now entered. There is undoubtedly utility in giving the direction. The matter was fully argued, and these reasons are likely to give assistance on issues which might arise in any event.

The administrators have established it is appropriate to give the direction

175    In Queensland Nickel (No 3), Downes J observed (at [119(4)]):

the Court must be positively persuaded of the propriety of the course for which the liquidator seeks the Court’s sanction, before the Court will give the liquidator the protection of its sanction: Re Octaviar Ltd [2020] QSC 353 at [18];

176    There is much force in that view. Unless and until the Court is satisfied of the propriety of the intended course of action, it would be inappropriate to give a direction in respect of it.

177    In this case, the administrators have established that the JVA does not impose any pre-emption obligation to CEPL arising from the proposed sale of shares at the IGEH or IGPH level. That result seems fairly certain on the known facts, and the only doubt which might arise, albeit doubt of a most minimal nature, is that IGPC acted as IGPH’s agent when entering into the Third Amending Deed. There is no suggestion of the same in relation to IGEH.

178    In the circumstances, there is no reason not to give the directions sought and none of the matters raised by CEPL justify refusing to exercise the discretion.

Associate:    

Dated:    15 November 2024

SCHEDULE OF PARTIES