Federal Court of Australia

Franklin, in the matter of Southern Cross Farms SA Pty Ltd [2025] FCA 1079

ORDERS

THE COURT ORDERS THAT:

Appointment of receivers

1.    Pursuant to s 57(1) of the Federal Court of Australia Act 1976 (Cth) and r 14.21 of the Federal Court Rules 2011 (Cth), the first plaintiffs, Glenn Jeffrey Franklin and Paul Anthony Allen, be appointed without security as joint and several receivers over all of the assets and undertaking of the Southern Cross Farms SA Unit Trust for the objective of preserving, getting in, realising and (or) managing the assets of that trust.

2.    The first plaintiffs (as receivers) have all the powers provided by s 420 of the Corporations Act 2001 (Cth) (other than those in ss 420(2)(s), 420(2)(t), 420(2)(u) and 420(2)(w)) as if the references to ‘corporation’ in that section were references to ‘Southern Cross Farms SA Unit Trust’, including the power to do all things necessary and convenient to effect the sale of the assets and undertaking of that trust.

3.    Pursuant to r 1.34 of the Rules, the requirement for the first plaintiffs (as receivers) to file a guarantee under rr 14.21 and 14.22 of the Rules be dispensed with.

4.    The first plaintiffs (as receivers) not distribute the assets of the Southern Cross Farms SA Unit Trust to creditors of the second plaintiff or to beneficiaries of that trust or to any other person without direction of the Court.

5.    The first plaintiffs (as receivers) be entitled to reasonable remuneration for necessary work properly performed together with all reasonable expenses properly incurred in the performance of their duties arising in connection with their appointment and in the exercise of their powers, including the costs of the originating process, such remuneration and expenses to be calculated in accordance with the Initial Remuneration Notice dated 6 August 2025 attached to the letter to the second plaintiff’s creditors of that date.

6.    The first plaintiffs’ remuneration and expenses, as receivers, be paid out of the assets of the Southern Cross Farms SA Unit Trust and, if they be insufficient, from the assets of the second plaintiff.

Extension of convening period

7.    Pursuant to s 439A(6) and 447A of the Corporations Act the period within which the first plaintiffs must convene the second meeting of creditors in respect of the second and third plaintiff (collectively, Group Companies) under s 439A of that Act (Second Meetings) be extended to 2 March 2026 (including that day).

8.    Pursuant to s 447A of the Corporations Act, Part 5.3A of that Act is to operate in relation to each of the Group Companies such that, notwithstanding s 439A(2) of that Act, the Second Meetings must be held at any time before, or within five business days after, the end of the convening period as extended by paragraph 7 of these orders and the Second Meetings may be held together or separately at any time during that period.

9.    The first plaintiffs’ remuneration and expenses in respect of the originating process, as administrators of the Group Companies, be paid from the assets of the second and third plaintiff as remuneration and expenses in the voluntary administration of the Group Companies.

Confidentiality

10.    Subject to paragraph 11 of these orders and until further order, pursuant to s 37AF of the Federal Court Act, and on the ground that it is necessary to prevent prejudice to the proper administration of justice, publication or disclosure of Exhibit “C-GJF-2” to the affidavit of Glenn Jeffrey Franklin sworn on 25 August 2025 and tendered on the hearing of the originating process be prohibited and that document be confidential for the purposes of r 2.32(1)(b) of the Rules.

11.    Publication or disclosure of the document identified in paragraph 10 of these orders may be made to:

(a)    the Court, including all necessary staff of the Court, including without limitation any associate, orderly or court recording officer; and

(b)    the plaintiffs and their legal representatives.

12.    The Registrar be directed that any application by any person for leave to inspect document identified in paragraph 10 of these orders made under r 2.32(4) of the Rules, or otherwise, be referred to a Judge of the Court together with a copy of these orders and the reasons for these orders.

Notice, adjournment and liberty to apply

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

14.    Any person who demonstrates a sufficient interest to do so (including any creditor of the Group Companies) have liberty to apply to set aside or vary paragraphs 1 to 12 of these orders on three business days’ written notice to the first plaintiffs.

15.    Paragraphs 4 and 12 of the originating process be stood over and the hearing of the originating process be otherwise adjourned to a date to be fixed.

16.    The plaintiffs have liberty to apply to re-list the originating process for further hearing and (or) to apply for further or other order on the originating process.

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

REASONS FOR JUDGMENT

FEUTRILL J:

1    On 5 August 2025 the first plaintiffs were appointed administrators under s 436A of the Corporations Act 2001 (Cth) of the second and third plaintiffs. The second plaintiff was trustee of the Southern Cross Farms SA Unit Trust and the third plaintiff is trustee of the Southern Cross Farms Australia Unit Trust. Before administration, the second and third plaintiffs, as trustees of the unit trusts, collectively operated the Southern Cross Farms business from a number of properties located in South Australia.

2    By the terms of the SA Unit Trust deed, upon the appointment of administrators to the second plaintiff it was automatically removed as trustee. Consequently, the second plaintiff holds the property of that trust as bare trustee and the first plaintiffs have limited authority to deal with that property for the benefit of the second plaintiff’s creditors. Further, as the first plaintiffs were appointed on 5 August 2025, the 20-business day convening period for the second meeting of creditors of the second and third plaintiffs was to end on 2 September 2025 and that meeting was to be held by 9 September 2025 in accordance with s 439A.

3    On the hearing of an urgent application as duty judge, I made orders appointing the first plaintiffs receivers of the property of the SA Unit Trust and extending the convening period for the second meeting of creditors for each company for six months. These are my reasons for making those orders. (All references to sections, Chapters, Parts and Divisions are references to the Corporations Act unless otherwise indicated.)

Relevant facts

4    The originating process was supported by an affidavit of Glenn Jeffrey Franklin sworn 25 August 2025 and two exhibits containing bundles of documents tendered as Exh GJF-1 and Exh C-GJF-2. The second exhibit was tendered as a bundle of confidential documents and a suppression order was made with respect to that exhibit for the reasons given later. The following summary of the relevant facts is taken from Mr Franklin’s affidavit and the exhibits tendered on the hearing of the originating process.

5    The third plaintiff (Southern Cross Farms Australia Pty Ltd) was incorporated on 7 August 2009 and was (and remains) the trustee of the Southern Cross Farms Australia Unit Trust. The Australia Unit Trust was established pursuant to the Southern Cross Farms Australia Unit Trust deed made on 7 August 2009. The unit holders of the Australia Unit Trust are Laymore Transport Australia Pty Ltd as trustee for the S&S Crouch Family Trust and Shepherd Group Pty Ltd as trustee for the Shepherd Family Trust.

6    The second plaintiff (Southern Cross Farms SA Pty Ltd) was incorporated on 7 April 2010. The second plaintiff was the trustee of the Southern Cross Farms SA Unit Trust. The SA Unit Trust was established pursuant to the Southern Cross Farms SA Unit Trust deed made on 7 April 2010. The sole unit holder of the SA Unit Trust is the third plaintiff as trustee for the Australia Unit Trust.

7    The plaintiff companies, as trustees, operated a business known as Southern Cross Farms. The business operates from four farms in Owen, South Australia. The business is a large-scale free-range broiler chicken farm comprising 29 broiler sheds, rearing free range chickens. Each of the four farms has a number of production facilities.

8    The business has approximately 41 employees, 10 of which are permanent full-time employees and 31 are employed on a causal basis. The operation has a core workforce of experienced farm and business management staff who have been with the business for many years. To operate the business each of the plaintiff companies hold licences with respect to the farms issued by the South Australian Environmental Protection Authority.

9    The plaintiff companies have four contracts dated 5 September 2023 with BPL Adelaide Pty Ltd. The contracts with BPL Adelaide relate to processing the produce of each farm and BPL Adelaide is the only customer of the business.

10    The first plaintiffs (as administrators) have undertaken a number of investigations into the business since the time of their appointment. While the business has significant operating expenses, the main liabilities are debts owed to secured creditors. The claims of secured creditors are in the order of $10.2 million against the third plaintiff and $8.7 million against the second plaintiff.

11    There are no employee claims against the third plaintiff and employee claims against the second plaintiff are in the order of $560,000. The third plaintiff has unsecured creditors in the order of $680,000 and the second plaintiff has unsecured creditors in the order of $490,000 (which is a debt owed to the Australian Taxation Office).

12    The first plaintiffs have carried out significant work in the administration of the plaintiff companies including the following:

(1)    notifying key stakeholders of their appointment to the plaintiff companies, including all known secured and unsecured creditors;

(2)    liaising with the director of the plaintiff companies and the companies’ former accountant;

(3)    operating the business;

(4)    determining the extent of secured and unsecured creditors in relation to the trusts and (or) companies, and receiving proofs of debt from creditors;

(5)    overseeing the collection of the companies’ records, including those pertinent to outstanding debtors of the trusts;

(6)    reviewing and analysing the companies’ financial situation, including the books and records made available to them;

(7)    locating and determining the value of the assets held by the companies;

(8)    conducting investigations, including enquiries around the companies’ corporate structure and the trusts;

(9)     protecting and preserving the assets held by the companies and the trusts;

(10)    attending to statutory notifications with the Australian Securities and Investments Commission (ASIC);

(11)    attending to the first meeting of creditors on 14 August 2025;

(12)    commencing preliminary investigations into the affairs of the companies and trusts; and

(13)    pursuing amounts owed to the companies as trustees for the trusts.

13    No deed of company arrangement has been proposed at this time. The evidence suggests that it is unlikely that there will be a proponent of a DOCA.

14    The first plaintiffs have formed the view that sale of the business as a going concern would maximise the prospect of the business continuing in existence, even if not operated by the plaintiff companies, and the amount receivable for the assets of the plaintiff companies. The first plaintiffs have engaged Colliers International (SA) Pty Ltd to commence a sale process to try and sell the business and assets of the plaintiff companies. Colliers have given an indicative timeline for sale of the business that would result in interested parties being required to submit non-binding indicative offers or expressions of interest by early October 2025. Once received it is anticipated that the first plaintiffs will undertake a negotiation process with the short-listed bidders and thereafter there will be a period of time necessary to prepare, negotiate and execute sale contracts and settle any sale contracts. Taking into account indicative timelines and the possibility of some delays, Colliers have indicated that the sale campaign may take up to six months.

15    The business is continuing to operate pursuant to the existing contracts with BPL Adelaide. The first plaintiffs are in the process of negotiating new agreements with BPL Adelaide to ensure the ongoing operation of the business. While negotiations are ongoing and no formal agreement has been reached, it is envisaged that an agreement will be made that will permit the business to continue trading while the first plaintiffs undertake a sale campaign with a view to selling the business as a going concern.

16    By a circular to the creditors dated 20 August 2025 the first plaintiffs notified the creditors of a proposal to extend the convening period for the second meeting of creditors for a period of six months. As at 25 August 2025, the first plaintiffs had not received any objection or other response to that proposal from any creditor.

Why receivers of the property of the SA Unit Trust were appointed

17    Clause 92 of the SA Unit Trust trust deed provides that a corporate trustee is automatically removed if it enters into administration. Therefore, the second plaintiff (Southern Cross Farms SA) was removed as trustee of the SA Unit Trust on 5 August 2025.

18    Pursuant to s 57(1) of the Federal Court of Australia Act 1976 (Cth) the Court may, at any stage of a proceeding on such terms and conditions as thought fit, appoint a receiver by interlocutory order in any case in which it appears to the Court to be just or convenient to do so. That power is commonly exercised to preserve, get in and realise trust property in circumstances in which a trustee has been automatically removed from office due to insolvency or administration and a new trustee has not been appointed. In that circumstance, the former corporate trustee continues holding the trust property as a bare trustee and has an equitable lien over the trust property to satisfy the former trustee’s right of indemnity or exoneration in respect of liabilities incurred as trustee. The equitable lien does not confer a power to sell the trust property on the former trustee and, therefore, trust property may only be sold by a court order and judicial sale: see, Jones (Liquidator) v Matrix Partners Pty Ltd Re Killarnee Civil and Concrete Contractors Pty Ltd (In Liq) [2018] FCAFC 40; 260 FCR 310 at [35]-[36], [44] (Allsop CJ, Farrell J agreeing). Otherwise, the ability of a bare trustee to deal with trust property is limited and would not extend to carrying on a business. Accordingly, the Court may appoint a receiver to preserve, get in and realise and (or) manage trust property for the purpose of permitting a former corporate trustee to access its right of indemnity and exoneration out of trust property for the benefit of that trustee’s creditors.

19    The applicable principles were conveniently explained and summarised by Moshinsky J in Cremin, in the matter of Brimson Pty Ltd (in liq) [2019] FCA 1023; 136 ACSR 649 in the following passages which I respectfully adopt.

48    A company that is the trustee of a trading trust has a right of indemnity to resort to the trust assets to vindicate its right to be exonerated from a liability that it has incurred in the course of carrying out trust business. In circumstances where such a company goes into liquidation, its right of indemnity and accompanying equitable lien over the trust assets endures, notwithstanding that the company has been removed as trustee of the trust and only holds the trust assets as a bare trustee: see Jones v Matrix Partner Pty Ltd; Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) (2018) 260 FCR 310 (Jones & Matrix) at [85], [142], [198].

49    There has, until recently, been a difference of opinion as to whether, in such circumstances, the liquidator’s power to sell the “property of the company” in s 477(2)(c) of the Corporations Act permits him or her to sell trust assets: see Aced Kang Investments Pty Ltd (in liq), in the matter of Aced Kang Investments Pty Ltd (in liq) [2017] FCA 476 at [12]. It is now settled that the liquidator of an insolvent (former) corporate trustee cannot sell the trust’s property without order of the Court, or by appointment of a receiver over the trust assets: see Jones & Matrix at [44] per Allsop CJ (Farrell J agreeing at [196]); Re Stansfield DIY Wealth Pty Ltd (in liq) (2014) 291 FLR 17 at [10]; Apostolou v VA Corporation of Aust Pty Ltd [2011] FCAFC 103 at [45]. The rationale for this position is that, on a proper understanding, the trust assets are not the “property of the company”, but are instead trust property in which the corporate trustee has a proprietary interest by way of lien or charge to secure its right of exoneration: see Jones & Matrix at [89]. Thus, to the extent that the subject of a sale is the whole of a trust asset, rather than merely the company’s lien or charge in respect of that asset, it is not authorised by the power of sale in s 477(2)(c).

50    The courts are generally willing, upon an appropriate application, to make orders permitting the liquidator of a (former) corporate trustee to sell trust assets. In situations where the property of the trust will be exhausted following its sale and subsequent distribution to creditors, it may be appropriate merely to give the liquidator a power of sale: see Jones & Matrix at [91]. The more common course is, however, for the liquidator of the insolvent (former) corporate trustee to apply to be appointed a receiver for the purpose of selling the trust assets and distributing the proceeds among trust creditors: see Jones & Matrix at [142] per Siopis J; Amirbeaggi, in the matter of Simpkiss Pty Ltd (in liq) [2018] FCA 2121 (Amirbeaggi); Taylor v CJ & KL Bond Super Pty Ltd, in the matter of CJ & KL Bond Pty Ltd (in liq) [2018] FCA 1430 (Taylor v CJ & KL Bond Super Pty Ltd); Staatz v Berry, in the matter of Wollumbin Horizons Pty Ltd (in liq) (No 3) [2019] FCA 924. Orders appointing a liquidator as a receiver for this purpose may be made nunc pro tunc to authorise sales of trust assets that have already occurred: Jones & Matrix at [91], [152], [198].

51    The proceeds from an exercise of a corporate trustee’s right of exoneration may only be applied in satisfaction of the trust liabilities to which that right relates: see Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth [2019] HCA 20 (Carter Holt) at [40] per Kiefel CJ, Keane and Edelman JJ; at [92] per Bell, Gageler and Nettle JJ; at [106] per Gordon J. Thus, the liquidator of a (former) corporate trustee may only apply the proceeds of a sale of trust assets to satisfy debts owed to trust creditors (as opposed to general creditors). This includes the costs of the liquidation (including the liquidator’s remuneration) because such costs constitute debts incurred by the company in discharging the duties imposed by the trust: Re Suco Gold Pty Ltd (in liq) (1983) 33 SASR 99 at 110 per King CJ; Jones v Matrix at [105]-[106]. In circumstances where a company has only ever acted as a trustee of one trust and that has been the totality of its affairs, no issue arises as to the application of trust assets to general creditors because all of the company’s creditors are trust creditors. In this situation, the proceeds from the exercise of the right of exoneration are to be distributed to the trust creditors in accordance with the order of priority prescribed by the Corporations Act: Jones & Matrix at [100]-[108] per Allsop CJ; see also Carter Holt at [93]-[96] per Bell, Gageler and Nettle JJ; at [111], [156]-[158] per Gordon J.

20    The right to be reimbursed for personal funds the corporate trustee has used to pay ‘trust debts’ is a personal asset forming part of the property of the company available for distribution to all creditors. On the other hand, if the corporate trustee has not paid the ‘trust debt or liability’ from its own funds the right of exoneration is property of the company that is only available for distribution to creditors that are ‘trust creditors’: Jones at [45]-[82]. Thus, the appointment of a receiver with a power to sell trust property has the potential to create conflicts of interest in the distribution of the proceeds of realisation in terms of which creditors are entitled to what proceeds and, if there is a surplus, to what effect that is trust property to which beneficiaries of the trust are entitled. In practice, as is reflected in the last paragraph cited from Cremin, these complications may not arise if the only assets of the trustee are trust property, the trustee is insolvent, and the trust property is insufficient to discharge all ‘trust debts’.

21    In para 4 of the originating process the first plaintiffs, in effect as administrators and immediately following their appointment as receivers, seek an order under s 90-15 of Sch 2 – Insolvency Practice Schedule (Corporations) to the effect that they would be justified in treating:

(a)    all of the business and assets of Southern Cross Farms SA as assets of the SA Unit Trust;

(b)    all of the debts and liabilities which are provable in the external administration of Southern Cross Farms SA as having been incurred in the conduct of a business as trustee of the SA Unit Trust; and

(c)    all of the assets of the SA Unit Trust, including the proceeds of assets realised or due to be realised by the receivers in the course of the external administration of Southern Cross Farms SA as being subject to an indemnity in favour of Southern Cross Farms SA as to its power to exonerate the debts and liabilities.

I was not satisfied that an order should be made in those terms at the time of hearing the originating process for three reasons.

22    First, any application for an order under s 90-15 is made under s 90-20 of the IPSC. Rule 2.8 (item 12) of the Federal Court (Corporations) Rules 2000 (Cth) requires notice of an application under that provision to be given to ASIC and, although a submission was made to the effect ASIC was given notice of the originating process, there was no evidence to that effect. In any event, ASIC would not have had sufficient time within which to consider and form a view about the application and intervene given the urgency of the hearing.

23    Second, although Mr Franklin deposed that:

(a)    he had not identified any assets that either the second or third plaintiff owned in their own right;

(b)    in his opinion, based on his and his staff’s investigations, the entirety of the realisable assets of each plaintiff company were assets of the Southern Cross Farms business;

(c)    all creditors he had identified were trust creditors;

(d)    he had identified other documents and information that supported the position that the second plaintiff acted solely as trustee of the SA Unit Trust; and

(e)    he was of that view, based on the matters deposed elsewhere in his affidavit, that at all times the second plaintiff acted in its capacity as trustee of the SA Unit Trust and at no time acted in its own capacity,

he also deposed that, at the date of his affidavit, he and his staff were continuing to undertake investigations to ascertain the capacity in which each company held its assets. Further, amongst other things, at the time of making his affidavit he had not received copies of the companies’ tax returns. Additionally, he deposed that the first plaintiffs had not had sufficient time to form any meaningful view on the future of the plaintiff companies for the purposes of the major report referred to later in these reasons and that there were many outstanding matters required to be addressed before that report could be prepared.

24    The apparent qualifications to the information currently available to Mr Franklin raise doubts about the certitude of the opinion he expressed, at this time, regarding the business and assets of the second plaintiff. The exhibits to Mr Franklin’s affidavit ran to 355 pages for one and 519 pages for the other. These materials were filed the day before the hearing. The extent to which such voluminous materials otherwise provided a proper foundation for the opinions expressed in Mr Franklin’s affidavit could not be properly assessed in the time permitted and in the context of an urgent duty matter. Therefore, while I accept, based on the facts deposed that it is unlikely that the second plaintiff (or third plaintiff) have any assets or liabilities other than those arising from acting as trustee, as the investigation into the affairs of the plaintiff companies remains incomplete, I consider it premature to express any concluded opinion about those matters at this time.

25    Third, an order in terms of para 4 was not necessary for the purpose of facilitating the preservation, getting in, realisation and (or) management of the property of the SA Unit Trust. In substance, the proposed order relates to the appropriateness of distribution of the proceeds from realisation of trust property to trust creditors and orders about that matter are not urgent and can be made at a later point in time.

26    As a consequence, rather than an order in terms of para 4, I made an order that the assets of the SA Unit Trust not be distributed to creditors, beneficiaries, or any other person without direction from the Court. Otherwise, para 4 of the originating process was stood over and adjourned to a further hearing and the plaintiffs given general liberty to apply. Therefore, there is nothing to preclude the first plaintiffs, at an appropriate stage in the administration of the second plaintiff, seeking to relist the hearing of the originating application and requesting judicial advice and (or) directions from the Court regarding the treatment of the property of the SA Unit Trust (or Australia Unit Trust) and the distribution of the proceeds upon any realisation of the trust assets to creditors and (or) beneficiaries of the SA Unit Trust (or Australia Unit Trust).

27    Aside from para 4 of the originating process, I was satisfied that it was just and convenient to appoint the first plaintiffs receivers of the property of the SA Unit Trust. The second plaintiff holds that property as bare trustee. There was no evidence that any steps had been taken or were likely to be taken to appoint a new trustee under terms of the applicable trust deed. The evidence established that it was highly likely that the property of the second plaintiff includes an equitable lien over the trust property in support of a right of exoneration and (or) a right to be reimbursed out of trust property.

Why the convening period for second meeting of creditors was extended

28    Pursuant to s 436E(1) and s 439A(1), the first plaintiffs (as administrators) of each of the second plaintiff and third plaintiff were required to convene what are referred to as the first meeting of creditors and second meeting of creditors within relatively short timeframes after their appointment. The first meeting of creditors was convened and held on 14 August 2025 for both plaintiff companies. The first plaintiffs were required to convene the second meeting of creditors within 20 business days after the administration began and hold that meeting within five business days before and five business days after the end of the convening period under ss 439A(1), 439A(2) and 439A(5). Here, the first plaintiffs were required to convene the second meeting of creditors by 2 September 2025 and hold that meeting by 9 September 2025.

29    The Court has power to extend the convening period under s 439A(6). The Court also has power under s 447A to make such orders as it thinks appropriate about how Pt 5.3A is to operate in relation to a particular company. In the circumstances described earlier in these reasons, the first plaintiffs sought an order extending the period of time for convening the meeting and modifying the operation of s 439A(2) such that a meeting may be convened at any time within five business days after the extended convening period. The effect of such an order, in the context of an extension of the convening period, is to give the first plaintiffs (as administrators) greater flexibility so as to allow the second meeting of creditors to be convened earlier if appropriate. Orders of that nature are commonly made on applications of this nature for that reason.

30    The principles applicable on applications under s 439A(6) are well-established. Relevantly, these may be summarised as follows:

(1)    When considering an application to extend the convening period, the Court must have regard to the objects of Pt 5.3A set out in s 435A and reach an appropriate balance between the expectation that the administration will be undertaken in a relatively speedy and summary manner with the need to ensure that the administration is not concluded without consideration of sensible and constructive options that are directed towards maximising the returns for creditors and any return for shareholders.

(2)    The administrators’ view on such an application is significant and, particularly where the administration is complex, it should carry weight.

(3)    In considering an application for an extension of time the Court must take into account the detriment to third parties, including the suspension of rights and remedies of secured creditors, lessors and others.

(4)    The Court has recognised that the interests of creditors can be prejudiced not only by delay, but by the convening of premature meetings where the administrators have been unable to obtain adequate information for the preparation of the administrators’ report in a form enabling creditors to make an informed decision.

31    In the application of these principles extensions have been granted in circumstances where: (a) the extension of time will allow the sale of the business as a going concern; (b) the size and scope of the business in an administration is substantial; and (c) more generally, additional time is likely to enhance the return for unsecured creditors. In particular, an extension of the administration period to facilitate either or both of: (a) the sale of the business of the company as a going concern so as to maximise the value of the company’s assets; or (b) the progression and assessment of a deed of company arrangement proposal that may provide a better return to creditors than a winding up is a well-recognised example of a situation where extending the convening period is appropriate.

32    The principles and application of them are summarised in Re Virgin Australia Holdings Ltd (Administrators Appointed) (No 2) [2020] FCA 717; 144 ACSR 347 at [64]-[68] (Middleton J) and Algeri (Administrator), in the matter of Murray & Roberts Pty Ltd (Administrators Appointed) (No 2) [2022] FCA 1563 at [8]-[12] (Banks-Smith J). Additionally, in Mighty River International Ltd v Hughes [2018] HCA 38; 265 CLR 480 (at [73]) Nettle and Gordon JJ (in dissent, but not relevantly in this respect) referred to a number of cases to which reference is made in Virgin Australia Holdings and Murray & Roberts and said:

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

33    An object of Pt 5.3A is to provide for the business, property and affairs of a company to be administered in a way that maximises the chances of the company, or as much as possible of its business, continuing in existence or if that is not possible results in a better return for the company’s creditors and members than would result from an immediate winding up of the company. At the second meeting of creditors the creditors may resolve that the company execute a deed of company arrangement, the administration should end, or the company be wound up: s 439C. As soon as practicable, administrators are required to form an opinion about whether it would be in the interests of the creditors to take each of those steps: s 438A. At the time of convening the second meeting of creditors, r 75-225(3)(b) of the Insolvency Practice Rules (Corporations) 2016 (Cth) requires administrators to provide creditors with a report, known as the ‘major report’, setting out the administrators’ opinion on these matters. As is reflected in the applicable principles to which reference has been made, in certain circumstances, more time than the 20 business days stipulated in s 439A is required for the administrators to be in a position to form the opinion s 438A requires, convene the second meeting of creditors, and provide them with the major report. In the meantime, s 437A confers power on administrators to carry on the business of the company and terminate or dispose of parts of the business.

34    In substance what the first plaintiffs seek is a deferral of the second meeting of creditors to allow them to continue carrying on the business of the plaintiff companies with a view to disposing of the whole of the Southern Cross Farms business so as to maximise the return to the companies’ creditors. For the reasons given, Pt 5.3A contemplates that, in the absence of a proposal for a deed of company arrangement, in general and if appropriate, administrators would be able to dispose of a company’s business to achieve the object of Pt 5.3A. This is not a case where that object can be achieved in 20 business days from the time of the first plaintiffs’ appointment due to the size, complexity and nature of the Southern Cross Farms business.

35    I place considerable weight on the opinion of Mr Franklin, as one of the administrators, regarding the course of action he considers is likely to maximise the return for creditors. In substance, he opines that without an extension the only real option for creditors would be to wind up each of the plaintiff companies. He considers that sale of the business as a going concern will maximise the prospect of the business continuing and maximise the return for creditors.

36    Although they have performed significant work, Mr Franklin also identifies other work that is necessary before the first plaintiffs will be in a position to provide creditors with the major report. I place less emphasis on that as a reason for extending the convening period because the evidence strongly suggests that the only realistic recommendation that could be made in the absence of an extension of time is that the companies be wound up. However, I accept that the first plaintiffs are not presently in a position to inform creditors of the likely return to them in the event of liquidation including any potential recoveries from third parties.

37    Mr Franklin opines that there will not be undue prejudice to creditors. I accept that evidence. I also accept that it is likely that the time within which employees will receive entitlements, assuming liquidation, through the Fair Entitlements Guarantee Scheme will be extended and that there is the potential for some consequential financial hardship for employees. That potential hardship must be weighed against the interests of the broader body of unsecured creditors and their interest in maximising the return on the plaintiff companies’ assets. I also take into account that there is likely to be continuing employment of employees during the period of administration and, if the business is sold as a going concern, some opportunity for continued employment with a new owner of the business in the future.

38    The factors that militate against an extension can also be accommodated by the form of the orders made on the application. First, the order will modify the operation of s 439(5) to allow for the first plaintiffs to convene and hold the second meeting of creditors as soon as the sale process is completed. Second, interested persons (including creditors) will be afforded an opportunity to apply to set aside and (or) vary the order.

39    Taking all these matters into account, I am satisfied the object of Pt 5.3A will be better secured by granting, rather than refusing, an extension of the convening period. The requested period of the extension is reasonable in the circumstances and will be truncated if a sale of the business can be achieved earlier.

Why a suppression order was made

40    Section 37AF of the Federal Court Act provides that the Court may, by making an order that prohibits or restricts disclosure of information (suppression order) or publication of information (non-publication order) on grounds permitted by Pt VAA, prohibit or restrict the publication or other disclosure of, amongst other things, information that comprises evidence or information about evidence and may make such orders as it thinks appropriate to give effect to such an order.

41    The Court may make a suppression or non-publication order on the grounds that the order is necessary to prevent prejudice to the proper administration of justice: s 37AG(1)(a) of the Federal Court Act. In deciding whether to make a suppression or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: s 37AE of the Federal Court Act. It is also relevant that, in general, the jurisdiction of the Court is exercised in open court: s 17(1) of the Federal Court Act. Section 37AH of the Federal Court Act also sets out a procedure for making a suppression or non-publication order and provides that certain persons are entitled to appear and be heard on the application.

42    Exhibit C-GJF-2 contains copies of free-range broiler chicken contracts between BPL Adelaide and the second and third plaintiffs. These contracts contain provisions that require the contracting parties to maintain the confidentiality of the terms of the contracts. The exhibit also contains documents relating to the marketing and valuation of the Southern Cross Farms business and financial statements and asset and plant and equipment registers relevant to valuation. The information in those documents appears to be of a kind that would be confidential and commercially sensitive. In the context of an urgent ex parte hearing, I am prepared to accept that the information in the exhibit is both confidential and commercially sensitive. Further, I also take into account that it is information that would not generally be available to the public and it has been provided to the Court in the context of the first plaintiffs seeking an order to extend the convening period of the second meeting of creditors so as to give effect to the object of Pt 5.3A.

43    Suppression or non-publication orders are regularly made with respect to confidential and commercially sensitive information because disclosure of that information would destroy the confidentiality of the information and has the potential to result in financial harm to a party to the proceeding: Lee v Deputy Commissioner of Taxation [2023] FCAFC 22; 296 FCR 272 at [95]-[97] (Thawley, Stewart and Abraham JJ). It is also generally accepted that it is ‘conventional’ and ‘appropriate’ to make non-publication orders in respect of confidential information a liquidator has disclosed to the Court for the purposes of an application for approval of a litigation funding agreement under s 477(2B). That is partly due to the competing public interest in the due administration of the insolvent estate of the company in liquidation. Liquidators who propose to pursue litigation for the benefit of creditors should, as a general matter, have the expectation that they will be able to do so free from distortions of a kind that would not arise if the litigation were pursued by an ordinary litigant in the ordinary way: Australian Securities and Investments Commission v Marco (No 16) (Special Purpose Appointment) [2024] FCA 1000 at [101]-[102].

44    Here, achieving the object of Pt 5.3A is a public interest that is competing with the principle of open justice. Whether or not all the information contained in the confidential exhibit falls squarely into the category of ‘trade secret’ or ‘commercially sensitive’ may be open to legitimate debate. However, it is information that is of its nature confidential, in the sense that it pertains to the commercial activities of the trustees of the trusts. It is not information that would generally be public, and it is information that would be of potential advantage to persons from who the first plaintiffs may solicit offers to purchase the Southern Cross Farms business as a going concern. Certain information is of a kind that it might be expected would be provided to potential purchasers, with appropriate confidentiality undertakings, in a data room for pre-sale due diligence purposes. But what, if any, of that information is ultimately made available to potential purchasers should remain a decision that the first plaintiffs can make at a time of their choosing during any sale process. I am satisfied that disclosing the information at this time has the potential to interfere with the first plaintiffs’ ability to maximise any sale price for the business and, therefore, has the potential to undermine the public interest in the object of Pt 5.3A.

45    Taking all these matters into account, I am satisfied that it is necessary to prevent prejudice to the proper administration of justice that the information in the confidential exhibit remain confidential even though it was received in evidence at a hearing in open court. In this respect, although the context was different, the observations of Barratt J in in McGrath, Re HIH Insurance Ltd [2005] NSWSC 731 at [13] are pertinent:

…The special circumstances of the liquidators and the statutory functions they perform, coupled with the need for them to come to court on this occasion to seek leave in a way that an ordinary litigant does not have to seek, sets the case apart in such a way that justice will best be served by an examination of the matters the liquidators are bound to raise with the court in an atmosphere where they can lay them before the court fully and frankly and without any apprehension that the interests they are bound to serve will thereby be prejudiced…

46    Rule 2.32(1)(b) of the Rules provides that a party may inspect any document in a proceeding except, among others, a document the Court has ordered to be confidential. Rule 2.32(2) provides that a person who is not a party may, after the first directions hearing or the hearing (whichever is the earlier), inspect certain documents in a proceeding. The documents that a non-party may inspect do not include affidavits or exhibits. A non-party is not entitled to inspect a document the Court has ordered be confidential or that is forbidden or restricted from publication to the person or class of persons of which the person is a member: r 2.32(3). A person who is not a party to the proceedings may apply to the Court for leave to inspect a document that the person is not otherwise entitled to inspect: r 2.32(4). The provisions of r 2.32 of the Rules operate together with the provisions of Pt VAA of the Federal Court Act.

47    Having regard to the order made with respect to suppression and non-publication of the confidential exhibit, it is also appropriate that the exhibit be ‘confidential’ for the purposes of r 2.32(1)(b). As an additional safeguard against inadvertent disclosure, an order was made that any application for leave to inspect the confidential exhibit be referred to a Judge of the Court together with the orders and these reasons.

Associate:

Dated:    3 September 2025