Federal Court of Australia

Park, in the matter of IG Power (Callide) Pty Ltd (Administrators Appointed) (No 6) [2025] FCA 556

ORDERS

THE COURT ORDERS THAT:

Limitation of liability

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

(a)    the liabilities of the First Plaintiffs (Administrators) incurred with respect to any obligations arising out of, or in connection with, the Trading Services Agreement between the Fifth Plaintiff (IGPC) and Delta Power & Energy (Vales Point) Pty Ltd trading as Delta Energy (Delta) in the form of the agreement at Confidential Exhibit JRP-20 (Trading Services Agreement) are in the nature of debts incurred by the Administrators in the performance and exercise of their functions as joint and several administrators of IGPC; and

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

Extension of the convening period

2.    Pursuant to s 447A of the Corporations Act, Part 5.3A of the Corporations Act is to operate in relation to the Second to Fifth Plaintiffs as if, notwithstanding the provisions in s 439A of the Corporations Act, the convening period of the Second to Fifth plaintiffs was the period up to and including 1 May 2025.

3.    Pursuant to s 447A of the Corporations Act, Part 5.3A of the Corporations Act is to operate in relation to the Second to Fifth Plaintiffs as if, notwithstanding the provisions in s 439A of the Corporations Act, the second meeting of the creditors of the Second to Fifth Plaintiffs required under s 439A of the Corporations Act may be convened and held at any time during, or within 5 business days after, the convening period as extended under Order 2 above, provided that the Administrators give notice of the meeting to creditors of the Second to Fifth Plaintiffs at least five business days before the meeting.

Confidentiality orders

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

(a)    In relation to Confidential Exhibit JRP-20:

(i)    Confidential Exhibit JRP-20 to the affidavit of John Richard Park affirmed 28 March 2025 (Park Affidavit); and

(ii)    the written submissions relied upon by the Plaintiffs on this application to the extent they refer to the content of Confidential Exhibit JRP-20,

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

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

(iv)    the Plaintiffs and their legal representatives; and

(v)    Delta and its legal representatives.

(b)    In relation to Confidential Exhibit JRP-21:

(i)    Confidential Exhibit JRP-21 to the Park Affidavit;

(ii)    those parts of the Interlocutory Process dated 28 March 2025, these orders, and paragraphs 11(a) and the first five words of paragraph 12 of the Park Affidavit, that are shaded in grey; and

(iii)    the written submissions relied upon by the Plaintiffs on this application to the extent they refer to the content of Confidential Exhibit JRP-21,

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

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

(v)    the Plaintiffs and their legal representatives; and

(vi)    [REDACTED] [REDACTED] [REDACTED].

(c)    In relation to Confidential Exhibit JRP-22:

(i)    Confidential Exhibit JRP-22 to the Park Affidavit;

(ii)    those parts of paragraphs 11(a) (except the last two sentences), 11(b), 11(c), 11(e), 12, 17 and 18 of the Park Affidavit that are shaded grey; and

(iii)    the written submissions relied upon by the Plaintiffs on this application to the extent they refer to the content of Confidential Exhibit JRP-22,

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

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

(v)    the Plaintiffs and their legal representatives; and

(vi)    Sev.en GI and its legal representatives.

Other orders

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

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

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 process lodged 28 March 2025, the administrators of IG Power (Callide) Ltd (administrators appointed) (IGPC), IG Power Holdings Limited (administrators appointed) (IGPH), IG Energy Holdings (Australia) Pty Ltd (IGEH) and IG Power Marketing Pty Ltd (IGPM) (together, the IG Power Group) seek orders pursuant to s 447A and Schedule 2 of the Corporations Act 2001 (Cth) (Corporations Act) and s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act) that (a) extend the convening period of the IG Power Group from 31 March 2025 to 1 May 2025; (b) relieve them of any personal liability in respect of debts and other liabilities arising under a trade services agreement between Delta Power & Energy (Vales Point) Pty Ltd (Delta) and IGPC (the Agreement); and (c) preserve the confidentiality of certain documents that are said to be central to resolution of the administration.

2    The general context in which the present application arises has been described elsewhere: see, eg, Sev.en Gamma a.s. v IG Power Callide Pty Ltd (Administrators Appointed) [2024] FCA 30; Re IG Power (Callide) Ltd (Admins Apptd) [2024] FCA 1012 [6] – [12]; Park, In the matter of IG Power (Callide) Pty Ltd (Administrators Appointed) (No 5) [2025] FCA 135 (Park (No 5)): and need not be the subject of any further verbiage. As an aside, it should be noted that the administrators intend to promptly notify all creditors of the IG Power Group of the carriage of this application, as well as Delta and the Australian Securities and Investments Commission.

Extension of convening period

The lay of the land

3    On 14 February 2025, orders were made that, inter alia, extended the convening period of the IG Power Group to 31 March 2025: Park (No 5). That extension was granted having regard to, inter alia, the “recent softening of hostilities” between the so-called “Sev.en interests” and “State Government interests” and the potential for an agreement to be reached that would allow some of the companies under administration to return to solvency: see Park (No 5) [3], [6].

4    It is unfortunate, but perhaps not surprising, that those negotiations did not bear fruit and, as a result, the companies within the IG Power Group remain in administration. Very properly, the administrators have continued to progress the administration towards finalisation, including by negotiating a deed of company arrangement (the DOCA) with Sev.en Global Investments a.s. (Sev.en).

5    The administrators have also (very) recently received recapitalisation proposal documentation from Sev.en, being drafted in the alternative to the DOCA. That documentation is detailed, fulsome and necessarily requires careful consideration by the administrators – which remains ongoing – before any reasonable view can be reached as to whether its terms are in the best interests of the IG Power Group and its creditors. To that end, the administrators are in the unenviable position where the relevant convening period is set to expire today, 31 March 2025, and no deed of company arrangement or recapitalisation proposal has been finalised or put in place. Indeed, should the second meeting of creditors be required to be convened, the only recommendation that could be made is for IGPC, IGPH and IGPM to be placed into liquidation.

6    In an affidavit lodged 28 March 2025 (the Park Affidavit), Mr Park outlines his view that that “is not the most appropriate course of action”. I have had the benefit of a long and protracted consideration of the circumstances of the IG Power Group and the observations of Mr Park are, objectively, entirely reasonable. He deposes to having continued negotiations with Sev.en and hopefully, whether by way of deed of company arrangement or recapitalisation, companies in the group will soon be returned to solvency and their relevant business(es) preserved.

Application of relevant principles

7    The principles upon which the Court may grant a further extension of a convening period under s 447A(1) of the Corporations Act are detailed in the careful and balanced written submissions of Mr Keane KC and Mr Jameson. I have extracted the applicable propositions elsewhere: see, eg, Park (No 5) [29]: and there is no need to repeat them now.

8    One wrinkle in the application of those principles to the present case is that the administrators now seek a further extension in what has become a rather voluminous catalogue of “convening period extensions”. Nevertheless, such course is justified in the circumstances: the one-month extension sought by the administrators is (a) designed to maximise the return for creditors of the IG Power Group; and (b) temporally limited, so as to not irreparably prejudice the carriage and resolution of the administration. That being said, one would be cautious in believing that such extensions are available for the asking. They are not. Despite the present circumstances, the time may come where the pendulum tends against the grant of any further extension, taking into account the central need for a relatively speedy and summary administration process: see Strawbridge, Re Virgin Australia Holdings Ltd (administrators appointed) (No 2) [2020] FCA 717 [64]; see also Britax Childcare Pty Ltd (ACN 006 773 600) v Infa Products Pty Ltd (ACN 092 222 994) (admins apptd) (2016) 115 ACSR 322, 340 – 341 [86] – [87].

9    In those circumstances, I am prepared to act on the recommendation of the administrators and extend the convening period for the second meeting of creditors of the IG Power Group to 1 May 2025.

The (new) Agreement with Delta

10    Prior to February 2025, Genuity Services Pty Ltd (Genuity) provided various services to IGPC which included, amongst other things, daily bidding, monitoring and rebidding in respect of the sale of IGPC’s portion of electricity generated by the Callide C Power Station. However, on 4 February 2025, Genuity informed the administrators that it could not continue to provide those services if it was no longer the majority shareholder or a related body corporate of IGPC. The exact rationale for the adoption of that position is not clear, but it appears to have its origins in the exemptions that are made available under the Competition and Consumer Act 2010 (Cth).

11    A new trading services agreement has since been put in place between Delta and IGPC. As Mr Park notes, the administrators caused IGPC to enter into that agreement on the basis that they viewed it to be in the best interests of the creditors to do so; as such, the critical trading service once provided by Genuity can now continue uninterrupted with the new service provider, Delta.

12    Under s 443A(1) of the Corporations Act, that course exposes the administrators to liabilities under the Agreement, and in the present context, any indemnity provided by s 443D may be insufficient. As I noted in Park (No 5), “[t]he principles on which this Court acts in relation to modifying the operation of Part 5.3A of the Corporations Act for the purposes of protecting administrators from [the aforementioned] liability are now well established” (at [12]). That observation was made in light of the comments of Gilmour J in Re Mentha (in their capacities as joint and several administrators of the Griffin Coal Mining Company Pty Ltd (admins apptd) (2010) 82 ACSR 142 [30], which provide a touchstone for dealing with the present application.

13    In short, it is appropriate to make orders limiting the administrator’s liability in respect of the Agreement as is now sought. Not only are such orders consistent with those made in Park (No 5) (at [21] – [23]), but they concern an arrangement whose entry into is, at least on the view of the administrators, in the best interests of the creditors of IGPC, and are unlikely to be opposed.

Confidentiality Orders

14    Section 37AF(1)(b)(i) of the FCA Act provides that the Court “may, by making a suppression order or non-publication order on the grounds permitted by [Part VAA], prohibit or restrict the publication or other disclosure of … information that relates to a proceeding before the Court and is … information that comprises evidence or information about evidence”. A ground that is permitted by Part VAA is that “the order is necessary to prevent the prejudice to the proper administration of justice”: s 37AG(1)(a) of the FCA Act.

15    In the present case, there is a recognised public interest in the due and beneficial administration of the estate of the companies in external administration for the benefit of creditors, and to that end, commercially confidential information should be protected for that purpose. Here, the relevant documents advance a commercially viable route to the resolution of the administration. The information contained in those documents is price sensitive, and the confidentiality orders sought are a sufficient tool by which to protect that information. Indeed, they are consistent with several previous orders made in respect of the administration. Nevertheless, I hasten to add that those orders not only extend to the document in question, but also to certain paragraphs in the Park Affidavit, and other places where the document or its contents are referred to.

16    In those circumstances, I am prepared to make the orders sought by Mr Park and Mr Campbell in the draft handed to me today.

Note

17    These are the amended and revised reasons for judgment given on 31 March 2025. Whilst the reasons given above refine and develop those that were delivered ex tempore, the substance of what was said on 31 March has not been changed nor has any other material change been made.

Associate:    

Dated:    27 May 2025

SCHEDULE OF PARTIES