Federal Court of Australia

Rock Solid Mining Services Pty Ltd, in the matter of Rock Solid Mining Services Pty Ltd [2026] FCA 570

ORDERS

THE COURT ORDERS THAT:

1.    On an application made under s 447C(1) of the Corporations Act 2001 (Cth), it is declared pursuant to s 447C(2) that the appointment of Alan Lee Walker as administrator of Rock Solid Mining Services Pty Ltd on 10 March 2026 was valid on the ground that the conditions for his appointment provided for in s 436A of the Corporations Act were satisfied.

2.    The first plaintiff's costs of these proceedings be costs in the administration of Rock Solid Mining Services Pty Ltd.

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

REASONS FOR JUDGMENT

VANDONGEN J:

1    Mr Paul Martino commenced proceedings in WAD 92 of 2026 against Mr Alan Walker in his capacity as administrator of Rock Solid Mining Services Pty Ltd (RSMS) in late March 2026. Mr Martino sought an order pursuant to s 447B(2) of the Corporations Act 2001 (Cth) to restrain Mr Walker from taking various steps in the administration of RSMS including by disposing of any of RSMS' assets. After those proceedings were allocated to me as duty judge, I made an order that Mr Martino be substituted as a party with a company called Martino International Consulting Pty Ltd (Martino Pty Ltd). I also ordered that RSMS be joined as the second defendant.

2    At a case management hearing on 9 April 2026, counsel who appeared for Mr Walker advised that he had been instructed to urgently apply under s 447C(1) of the Corporations Act to seek an order under s 447C(2) declaring that his client was validly appointed as administrator of RSMS or, in the alternative, an order under s 447A to the effect that Pt 5.3A of the Corporations Act is to operate in relation to RSMS as if Mr Walker had been validly appointed as administrator of RSMS. On that basis, I made various orders programming the hearing of the proceedings in WAD 92 of 2026 together with the foreshadowed interlocutory process.

3    The hearing was listed to take place on 14 April 2026. However, after the parties were given the opportunity to confer, an agreement was reached whereby WAD 92 of 2026 would be dismissed upon Mr Walker giving an undertaking to extend the time for final offers to be made for recapitalisation of RSMS or for acquisition of its assets. Mr Walker gave a further undertaking to adjourn the second meeting of creditors that was then scheduled to be held on 23 April 2026. Orders were made to give effect to this agreement.

4    Other orders were also made on 14 April 2026, the details of which need not be recorded here. However, it is necessary to note that an order was made that Mr Walker's interlocutory application for orders under ss 447C(2) or 447A of the Corporations Act was to be taken to have been made by way of a separate originating process. Those proceedings were subsequently allocated a Court file number of WAD 110 of 2026.

5    These reasons are only concerned with Mr Walker's application that was ultimately made in WAD 110 of 2026. I am of the view that an order should be made under s 447C(2) of the Corporations Act, declaring that the appointment of Mr Walker as administrator of RSMS was valid on the ground that the conditions for his appointment provided for in s 436A of the Corporations Act were satisfied. To explain why I have reached that conclusion, it is convenient to provide some background to Mr Walker's application.

Factual background

6    The following background is based on Mr Walker's unchallenged evidence, which is set out in an affidavit that was sworn by him on 10 April 2026.

7    Mr Walker says that RSMS is an Australian registered entity that was incorporated on 14 August 2017, which operated primarily as a holding company for 100% of the shares in Cue Consolidated Mining Pty Ltd (CCM), a company that holds 24 gold mining tenements in the Cue region of Western Australia.

8    Mr Luke Connor is the sole director and secretary of RSMS, having been appointed to those positions on 5 September 2025. Mr Martino was a director of RSMS from 5 September 2023 to 7 October 2024 and then further from 5 August 2025 to 29 October 2025. Mr Clanan Richard Marr was a director of RSMS from 20 March 2023 to 5 September 2025 and holds 62 ordinary fully paid shares in that company. Mr Brian Davis was a director of RSMS from 14 February 2023 to 6 November 2023.

9    Martino Pty Ltd holds 360 ordinary fully paid shares in RSMS.

10    In mid-February 2026, Mr Connor sent an email to Mr Martino, Mr Marr and Mr Davis, attached to which was an agenda for a meeting of the members of RSMS and CCM. According to the agenda, that meeting was to be held on 20 February 2026. The following items were on the agenda:

(1)    alleged breaches of directors' duties by the previous directors;

(2)    RSMS having not completed any end of financial year accounts since its incorporation and being at risk of a potential fine from the Australian Taxation Office (ATO);

(3)    RSMS having not paid its annual fees to the Australian Securities and Investments Commission (ASIC) for over two years;

(4)    RSMS' constitution not having been adopted and there being an ongoing concern for corporate governance; and

(5)    RSMS having solvency concerns and considering funding requirements for the next six to 12 months, including the possibility of a sale, loan or capital raising through a share sale agreement.

11    Present at the meeting was Mr Connor, Mr Martino and others. According to the minutes of that meeting, Mr Martino wished to appoint certain directors to RSMS' board. However, those appointments did not take place. After Mr Martino then made a further attempt to secure those appointments, Mr Connor resolved to appoint a voluntary administrator to RSMS on 9 March 2026.

12    Mr Walker was then purportedly appointed as voluntary administrator of RSMS the following day, pursuant to s 436A of the Corporations Act.

13    According to Mr Walker, as at the date of his appointment:

(1)    RSMS held approximately $4,400 cash at the bank;

(2)    RSMS had not prepared any financial statements since its incorporation in 2017; and

(3)    RSMS had failed to lodge any tax returns with the ATO.

14    After the appointment was purportedly made, Mr Martino sent several emails to Mr Walker and to Mr Walker's legal advisers. It is unnecessary to canvas all those emails. It is sufficient to note that Mr Martino made several allegations about Mr Connor as well as about the conduct of the administration, including allegations about the validity of Mr Walker's appointment.

15    The first meeting of RSMS' creditors was held on 20 March 2026. By that time, Mr Walker had already commenced an accelerated marketing campaign for the recapitalisation of RSMS or for the acquisition of its assets by inviting expressions of interest. Mr Walker says that he intended to hold the second meeting of creditors on or about 23 April 2026.

16    It is because of Mr Martino's allegations concerning the validity of Mr Walker's appointment as administrator, and because of the stage at which the administration had reached, that Mr Walker considered that it was necessary for him to make an urgent application for orders under ss 447C or 447A of the Corporations Act. However, and as counsel for Mr Walker accepted, the urgency of Mr Walker's application had abated by the time counsel came to make his submissions in support of the application. This is because Mr Walker had undertaken to extend the time for final offers to be made for recapitalisation of RSMS or for acquisition of its assets, and to adjourn the second meeting of creditors.

17    Having set out the factual background to Mr Walker's application, it is now convenient to identify the legal framework within which that application falls to be determined.

18    As I have already alluded to, I am of the view that an order should be made under s 447C(2) of the Corporations Act, declaring that Mr Walker's appointment was valid on the ground that the preconditions for that appointment in s 436A were satisfied. Accordingly, as Mr Walker only sought orders under s 447A in the alternative to an order under s 447C(2), it is unnecessary to say anything further about s 447A.

Section 447C of the Corporations Act

19    Section 447C is in the following terms:

447C     Court may declare whether administrator validly appointed

(1)     If there is doubt, on a specific ground, about whether a purported appointment of a person as administrator of a company, or of a deed of company arrangement, is valid, the person, the company or any of the company's creditors may apply to the Court for an order under subsection (2).

(2)     On an application, the Court may make an order declaring whether or not the purported appointment was valid on the ground specified in the application or on some other ground.

20    In Hutton, in the matter of Big Village Australia Pty Ltd (Administrators Appointed) [2023] FCA 48 at [43] to [44], Anderson J noted that s 447C(2) confers power on the Court to make an order declaring that the appointment of an administrator was valid. Before such an order can be made, s 447C(1) requires that the Court be satisfied that there is doubt, on a specific ground, about the validity of a purported appointment of a person as administrator.

21    Orders made under s 447C(2) are declaratory rather than curative in nature. As Barrett J explained in Re HPI Australia Pty Limited [2008] NSWSC 1106 at [8]:

Section 447C is apt to deal with cases where doubt has arisen on a specific ground and the doubt is found not to have substance: see, for example, [Glenmorton] Holdings Pty Ltd v D'Aloia [2001] FCA 1331]. A s 447C order in positive terms is not a curative order because it is based on a finding that there is nothing that needs to be cured.

22    As may be seen, before making an order under s 447C(2), the Court must make factual findings about the 'purported appointment'.

23    Having briefly summarised the terms and effect of s 447C of the Corporations Act, it is now necessary to consider whether a finding should be made that, notwithstanding any specific doubts raised about the purported appointment of Mr Walker as administrator, those doubts are without substance.

Should an order be made under s 447C(2)?

24    For the purposes of this matter the starting point is to identify the basis on which Mr Walker's appointment is said to have been made.

25    Mr Walker submits that he was validly appointed under s 436A(1) of the Corporations Act. Section 436A is in the following terms:

436A     Company may appoint administrator if board thinks it is or will become insolvent

(1)     A company may, by writing, appoint an administrator of the company if the board has resolved to the effect that:

(a)     in the opinion of the directors voting for the resolution, the company is insolvent, or is likely to become insolvent at some future time; and

(b)     an administrator of the company should be appointed.

(2)     Subsection (1) does not apply to a company if a person holds an appointment as liquidator, or provisional liquidator, of the company.

26    It may be seen that for an appointment to be made under s 436A(1):

(1)    the appointment must have been made by the relevant company;

(2)    the appointment must have been made by writing; and

(3)    the company's board must have resolved to the effect that:

(a)    in the opinion of the directors voting for the resolution, the company is insolvent, or is likely to become insolvent at some future time; and

(b)    an administrator of the company should be appointed.

27    Any doubt, on a specific ground, about whether Mr Walker was validly appointed, for the purposes of s 447C(1), must necessarily be a doubt that is concerned with one or more of those statutory preconditions.

28    The evidence before me establishes that, after Mr Walker was purportedly appointed as administrator of RSMS, Mr Martino sent him a significant number of emails in which Mr Martino expressed doubts about the validity of Mr Walker's purported appointment. Amongst other matters, Mr Martino raised questions about whether the opinion of the director of RSMS who voted for the resolution to appoint an administrator, for the purposes of s 436A(1)(a), had been 'genuinely or properly formed'. As was noted by Black J in In the matter of Lime Gourmet Pizza Bar (Charlestown) Pty Ltd (formerly under administration) [2015] NSWSC 244 at [22], citing Londish v Sheahan - In re Valofo Pty Ltd [2010] NSWSC 337 at [27] and Kazar v Duus (1998) 88 FCR 218; (1998) 29 ACSR 321 at 333 to 334:

if a director's opinion as to insolvency is not held, or is not held genuinely or in good faith, a resolution passed by the directors to appoint an administrator under s 436A of the Corporations Act is invalid

29    Accordingly, based on the evidence before me I am satisfied that there is doubt about whether Mr Walker's purported appointment is valid for the purposes of s 447C(1) on the specific ground concerning whether the director of RSMS held or genuinely held the opinion required by s 436A(1)(a).

30    In those circumstances it is necessary to consider whether the statutory requirements for the appointment of an administrator that are provided for in s 436A(1) were satisfied in relation to Mr Walker's purported appointment.

31    Annexed to Mr Walker's affidavit is a document that he says is the 'instrument of appointment of administrator' relating to his appointment. That document is in the following terms:

Rock Solid Mining Services Pty Ltd

ACN 665 745 924 (the Company)

Instrument of Appointment of Administrator

In accordance with a resolution of the director of the Company duly convened and held at Level 1, 60 Martin Place on 10 March 2026 at 1pm the Company hereby appoints Alan Walker of Asset Restructuring Group Pty Ltd, Level 1, 60 Martin Place, Sydney NSW 2000 to be the Company's Administrator and to exercise all or any of the powers conferred upon them as Administrator by the Corporations Act 2001.

Dated this 10th day of March 2026

EXECUTED BY Rock Solid Mining Services Pty Ltd in accordance with )

section 127 of the Corporations Act 2001.                 )

)

........................................................................

Luke Anthony Connor

Director

32    The document appears to have been signed by 'Luke Connor'.

33    Section 127(1)(c) of the Corporations Act relevantly provides that where a proprietary company has a sole director who is also the sole company secretary, the company may execute a document without using a common seal if the document is signed by the director. Based on a 'Current & Historical Organisation Extract' that is attached to Mr Walker's affidavit, and which contains information derived from ASIC's database under s 1274A of the Corporations Act, Luke Anthony Connor was the sole director and secretary of RSMS as at 10 March 2026.

34    As there is nothing in the evidence before me to suggest that the Instrument of Appointment of Administrator reproduced at [31] of these reasons was not signed by Luke Connor, the sole director and secretary of RSMS at the relevant time and no submissions were made to that effect, I find that the purported appointment of Mr Walker was made by RSMS in writing as was required by s 436A(1).

35    Also annexed to Mr Walker's affidavit is a document entitled:

Rock Solid Mining Services Pty Ltd

ACN 665 745 924 (the Company)

Minutes of the Meeting of the Director of the Company held at Level 1, 60 Martin Place on 10 March 2026 at 1pm

36    This document records that 'Luke Anthony Connor' was present at the meeting to which it refers and that the following resolutions were passed:

2    Appointment of Administrator

IT WAS RESOLVED that, in the opinion of the director voting for the motion, the Company is insolvent or is likely to become insolvent at some future time.

IT WAS FURTHER RESOLVED that Alan Walker should be appointed Administrator to the Company pursuant to Section 436A of the Corporations Act 2001.

3     Execution of instrument of appointment

IT WAS RESOLVED that the Company execute, in accordance with section 127 of the Corporations Act 2001, the following document:

•    Instrument of Appointment of Administrator

37    Section 1305(1) of the Corporations Act provides that a book kept by a body corporate under a requirement of the Corporations Act is admissible in evidence in any proceeding and is prima facie evidence of any matter stated or recorded in the book. The word 'books' is relevantly defined in s 9 of the Corporations Act as including 'any other record of information' and a 'document'. Further, s 251A(1) provides that a company must keep minute books in which it records, relevantly, resolutions of directors' meetings. Section 1305(2) then provides that a document purporting to be a book kept by a body corporate is, unless the contrary is proved, taken to be a book kept as mentioned in s 1305(1).

38    In my view, the document referred to at [35] to [36] of these reasons plainly purports to be a record of information or a document kept by RSMS. On that basis, and in circumstances in which there is no evidence to the contrary, that document is taken to have been kept by RSMS for the purposes of s 1305(1).

39    I am also of the view that for the purposes of s 1305(1), the document constitutes a book that was kept by RSMS under a requirement of the Corporations Act, namely the requirement expressed in s 251A(1) to keep minute books recording resolutions of directors' meetings. On that basis, the document is prima facie evidence of the matters stated in it, including that the board of RSMS made the resolutions referred to in subss (a) and (b) of s 436A(1).

40    As I have said, there is evidence that Mr Martino raised several issues with Mr Walker after he was purportedly appointed as administrator of RSMS. It is of particular relevance in the context of Mr Walker's application for an order under s 447C(2) to note that Mr Martino raised issues about whether the sole director of RSMS had actually held the opinion that RSMS was insolvent, or was likely to become insolvent at some future time, as required by s 436A(1)(a), and if he did hold that opinion, whether it was held in good faith. However, I was not taken to any evidence that could establish that the director of RSMS did not hold the required opinion or that he did not hold it in good faith. In fact, no submissions were made in opposition to Mr Walker's application.

41    Nevertheless, I have conducted my own independent review of the evidence. Having conducted that review I have concluded that there is no evidence that the director of RSMS who voted for the resolutions referred to at [36] of these reasons either did not hold the opinion that RSMS was insolvent, or that it was likely to become insolvent at some future time, or, if he did hold that opinion, that it was not held in good faith.

42    Accordingly, I find that the statutory preconditions in s 436A(1) were satisfied and that the appointment of Mr Walker as the administrator of RSMS on 10 March 2026 was valid.

43    In those circumstances I will make an order pursuant to s 447C(2), declaring that the appointment of Alan Lee Walker as the administrator of RSMS on 10 March 2026 was valid.

Associate:

Dated:    8 May 2026