Federal Court of Australia

Crawford (Administrator), in the matter of Carbon Revolution Pty Ltd (Administrators Appointed) [2026] FCA 586

ORDERS

THE COURT ORDERS THAT:

Return date

1.    The Plaintiffs’ Originating Process filed on 28 April 2026 is returnable instanter.

Limitation of administrators’ liability

2.    Pursuant to section 447A of the Corporations Act 2001 (Cth) (Corporations Act) and section 90-15 of the Insolvency Practice Schedule (Corporations) (Schedule 2 to the Corporations Act) (IPS), Part 5.3A of the Corporations Act is to operate in relation to the Second to Fourth Plaintiffs (together the Carbon Revolution Companies and each a Carbon Revolution Company) as if s 443A(1) of the Corporations Act provides that:

(a)    the liabilities of the First Plaintiffs in their capacities as administrators of each of the Carbon Revolution Companies (Administrators) incurred with respect to any obligations arising out of, or in connection with any purchase orders issued by the Administrators to third party suppliers or counterparties (Suppliers) on or after 27 April 2026 (Purchase Orders):

(i)    which contain within their terms, release from liability provisions substantially providing that:

A.    the Administrators and their firm, partners, employees, agents, advisers or representatives do not incur or undertake any personal liability of any nature whatsoever to the Supplier in connection with the Purchase Order, or for any act, matter or thing arising out of or in connection with the Purchase Order or under or in relation to any associated arrangements or negotiations, except where there is fraud, dishonesty or a breach of the law on the part of the Administrators or their firm, partners, employees, agents, advisers or representatives;

B.    the Supplier will not commence or permit to be commenced in its name, or continue, any proceeding against the Administrators in their personal capacity or their firm, partners, employees, agents, advisers or representatives of any nature whatsoever or in any way related to anything under the Purchase Order;

C.    the Supplier releases the Administrators and their firm, partners, employees, agents, advisers or representatives from all claims it has or claims to have, or, but for the release, might have had against them connected with or arising out of the Purchase Order (including in relation to the termination of the Purchase Order);

D.    if, and to the extent that, the Administrators have any liability under or in connection with the Purchase Order, they will only be liable under section 443A of the Corporations Act on a limited recourse basis, namely limited to the assets of the relevant Carbon Revolution Company from which the Administrators are indemnified for their personal liability

E.    under section 443D of the Corporations Act and for which the Administrators have a lien over the assets of the relevant Carbon Revolution Company under section 443F of the Corporations Act;

(ii)    where, by acceptance of the Purchase Order, the release from liability provisions referred to above have been accepted by the Supplier as forming part of the terms of the Purchase Order; and

(iii)    where notice of these orders has been given to the relevant Suppliers,

are in the nature of debts incurred by the Administrators in the performance and exercise of their functions as joint and several administrators of the relevant Carbon Revolution Companies; and

(b)    notwithstanding that the liabilities in paragraph (a) above are debts incurred by the Administrators in the performance and exercise of their functions as joint and several administrators of each of the Carbon Revolution Companies, the Administrators will not be personally liable to repay such debts or satisfy such liabilities, unless the relevant Carbon Revolution Company is wound-up and the First Plaintiffs are appointed as liquidators thereto, in which case any personal liability of the Administrators will be limited to the extent that the assets of that company are sufficient to satisfy the liability.

3.    Pursuant to s 447A(1) of the Corporations Act and/or s 90-15 of the IPS, Part 5.3A of the Corporations Act is to operate in relation to the Carbon Revolution Companies as if s 443A(1) of the Corporations Act provides that:

(a)    the liabilities of the Administrators incurred with respect to any obligations arising out of, or in connection with any other agreements which the Administrators cause any of the Carbon Revolution Companies to enter into with a Supplier on behalf of the Carbon Revolution Companies on or after 13 April 2026 (Supply Agreements), where:

(i)    the Suppliers have agreed to release the Administrators from all obligations, liabilities and claims (for any amounts) incurred by them under the Supply Agreements during the voluntary administration of the relevant Carbon Revolution Company; and

(ii)    notice of these orders is given to the relevant Suppliers,

are in the nature of debts incurred by the Administrators in the performance and exercise of their functions as joint and several administrators of the relevant Carbon Revolution Companies; and

(b)    notwithstanding that the liabilities in paragraph (a) above are debts incurred by the Administrators in the performance and exercise of their functions as joint and several administrators of each of the Carbon Revolution Companies, the Administrators will not be personally liable to repay such debts or satisfy such liabilities, unless the relevant Carbon Revolution Company is wound-up and the First Plaintiffs are appointed as liquidators thereto, in which case any personal liability of the Administrators will be limited to the extent that the assets of that company are sufficient to satisfy the liability.

4.    Pursuant to s 447A(1) of the Corporations Act and/or s 90-15 of the IPS, the Administrators provide notice of orders 2 and 3 above to:

(a)    any counterparty to an existing Purchase Order or Supply Agreement that falls within paragraphs 2 or 3 (together, the Applicable Agreements and each, an Applicable Agreement); and

(b)    any proposed counterparty to an Applicable Agreement, prior to that counterparty entering into an Applicable Agreement.

5.    Pursuant to s 447A(1) of the Corporations Act and/or s 90-15 of the IPS, the Administrators:

(a)    keep a schedule noting each Applicable Agreement entered into by them on behalf of any of the Carbon Revolution Companies; and

(b)    provide an update to the creditors of the Carbon Revolution Companies, at a meeting of the creditors convened under the Corporations Act, as to the nature of the Applicable Agreements that the first plaintiffs have entered into or propose to be entered into, together with total estimated debts that may be incurred in respect of each Applicable Agreement, on behalf of any of the Carbon Revolution Companies.

Confidentiality

6.    Pursuant to sections 37AF(1)(b), 37AG(1)(a) and 37AJ of the FCA Act, on the ground that the order is necessary to prevent prejudice to the proper administration of justice, the unredacted affidavit of Keith Alexander Crawford dated 28 April 2026 (the Crawford Affidavit) together with confidential exhibit KC-2 to the Crawford Affidavit be marked "confidential" on the electronic Court file and not be published or accessed, except pursuant to an order of the Court, until such time that the external administration of the Carbon Revolution Companies has been finalised.

Other ancillary orders

7.    The Administrators must take all reasonable steps to cause notice of these orders to be given, within one business day after the making of these orders, to:

(a)    the creditors (including persons or entities claiming to be creditors) of each of the Carbon Revolution Companies, in the following manner:

(i)    where the Administrators have an email address for a creditor, notifying each such creditor, via email of the making of the orders and providing a link to a website where the creditor may download the orders and this Originating Process;

(ii)    where the Administrators do not have an email address for a creditor but have a postal address for that creditor (or have received notification of non-delivery of a notice sent by email in accordance with (a)(i) above), notifying each such creditor, via post, of the making of the orders and providing a link to a website where the creditor may download the orders and this Originating Process; and

(iii)    placing scanned, sealed copies of the orders and the Originating Process on the website maintained by the first plaintiffs at https://www.mcgrathnicol.com/creditors/carbon-revolution;

(b)    the Australian Securities and Investments Commission;

(c)     the Deputy Commissioner of Taxation; and

(d)    the Attorney-General’s Department (administering the Fair Entitlements Guarantee Scheme).

8.    Any person who can demonstrate a sufficient interest has liberty to apply to vary or discharge any orders made pursuant to paragraph 2 to 5 above on three business days’ notice being given to the Plaintiffs and the Court.

9.    The Plaintiffs’ costs of and incidental to this application be costs in the administration of the Carbon Revolution Companies, jointly and severally.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1    I heard this urgent application as the Commercial and Corporations Duty Judge on 29 April 2026 and after hearing from counsel, made the orders set out above.

2    These are my reasons, which track the very helpful and thorough submissions of counsel, Dr O Bigos KC and Mr L Freckleton.

3    The plaintiffs are:

(a)    Carbon Revolution Pty Ltd (Administrators Appointed) (Carbon Revolution);

(b)    Carbon Revolution Operations Pty Ltd (Administrators Appointed) (Carbon Revolution Operations); and

(c)    Carbon Revolution Technology Pty Ltd (Administrators Appointed) (Carbon Revolution Technology),

(each a Carbon Revolution Company and together the Carbon Revolution Companies), and Keith Crawford and Robert Smith (administrators) in their capacity as joint and several administrators of the Carbon Revolution Companies.

4    The plaintiffs sought orders under s 447A of the Corporations Act 2001 (Cth) and s 90-15 of the Insolvency Practice Schedule (Corporations) (sch 2 to the Corporations Act) (IPS) limiting the administrators’ liability under s 443A of the Corporations Act with respect to certain debts incurred in trading on the business of the Carbon Revolution Companies during the administration.

5    The administrators relied upon the affidavit of Mr Crawford affirmed on 28 April 2026 and an affidavit of Ms Megan Lowe affirmed on 29 April 2026.

The facts

6    The Carbon Revolution Companies operate, collectively, as “Carbon Revolution”, a “global Tier 1 automotive supplier and technology platform specialising in the design and manufacture of carbon fibre road wheels for the automotive industry”. The ultimate parent entity of the Carbon Revolution Companies is Carbon Revolution PLC, which has been a publicly traded company listed on the NASDAQ since November 2023. In November 2023, the Carbon Revolution Companies received investment from fund vehicles associated with Orion Infrastructure Capital (OIC), which is an infrastructure investment firm.

7    On 26 March 2026, the administrators were appointed to the Carbon Revolution Companies by resolution of their directors pursuant to s 436A of the Corporations Act.

8    The administration was planned as between the Carbon Revolution Companies and OIC, with a view to effecting a recapitalisation via a deed of company arrangement, “[t]hat way, the Carbon Revolution Companies would emerge recapitalised, with reduced debt, such that the platform would continue to be operated as a going concern”.

9    In anticipation of the planned administration:

(a)    On 27 February 2026, OIC entered into a Bridge Loan Agreement with Carbon Revolution Operations (as borrower) and Carbon Revolution, Carbon Revolution Technology and Carbon Revolution (USA) LLC (as guarantors) for up to A$6 million and US$2 million, respectively, to provide working capital for the Carbon Revolution Companies and to meet the fees and expenses of the administrators (the Bridge Facility).

(b)    On 23 March 2026, a Restructuring Support Agreement (RSA) was entered into between OIC, the Carbon Revolution Companies, and certain senior noteholders. The effect of the RSA was to obtain the support of the counterparties with respect to a proposed recapitalisation via the administration process. It contained the terms of a deed of company arrangement proposal with respect to the Carbon Revolution Companies that OIC intended to make to the administrators following their appointment.

(c)    On 23 March 2026, a side letter was entered into between OIC and the Carbon Revolution Companies to provide for funds advanced under the Bridge Facility to be used to fund the costs of the voluntary administration of the Carbon Revolution Companies (Bridge Facility Side Letter).

(d)    On 25 March 2026, immediately before the administrators were appointed, a Settlement and Support Agreement was entered into between General Motors LLC and Carbon Revolution Operations (the GM Settlement Agreement).

10    Mr Crawford deposed that based on his review of the books and records and proofs of debt received during the voluntary administration to date, he believed that the primary secured debts of the Carbon Revolution Companies were as follows:

(a)    super senior secured debt of approximately US$24.7 million owed to OIC pursuant to the Bridge Facility; and

(b)    senior notes totalling US$136.7 million, of which approximately US$66.5 million was held by OIC, and the balance by various other noteholders,

(the Noteholders).

11    He also deposed that based on his review of the books and records and proofs of debt received to date, the creditor position of the Carbon Revolution Companies as at the Appointment Date was as follows:

(a)    trade creditors: A$12 million;

(b)    estimated deferred transaction cost creditors of A$13.4 million, relating to the Carbon Revolution Companies NASDAQ listing;

(c)    accruals of A$4.7 million, reflecting accrued non-invoiced costs from trade suppliers; and

(d)    A$2.3 million in estimated statutory and other creditors.

12    An initial circular to customers, suppliers and employees was issued on 26 March 2026.

13    An initial circular to creditors was issued on 31 March 2026.

14    The first meeting of creditors was held on 9 April 2026.

15    The second meeting was scheduled for 11 May 2026.

16    After their appointment, the administrators commenced a process to seek to recapitalise the Carbon Revolution Companies (including by a sale of shares or business and/or assets). They sought expressions of interest with respect to the proposed sale, but OIC was the only party that submitted a non-binding indicative offer by the deadline of 10 April 2026 (the OIC NBIO).

17    The key feature of the OIC NBIO is that OIC would acquire all of the shares in the Carbon Revolution Companies via a deed of company arrangement between OIC, the administrators and the Carbon Revolution Companies (the Proposed DOCA). (The indicative offer price payable by OIC is confidential).

18    The OIC NBIO and Proposed DOCA would not require foreign regulatory approvals and would result in retention of the workforce of the Carbon Revolution Companies through the assumption by OIC of the claims of all continuing employees in full.

19     At the time of their appointment, based on their review of the books and records, the administrators understood the outstanding entitlements owing to employees were in the amount of approximately $8.8 million comprised as follows: (a) leave entitlements of $1.9 million; (b) payment in lieu of notice of $2.5 million; and (c) redundancy of $4.4 million.

20    Mr Crawford deposed that the administrators were of the view that the successful implementation of the Proposed DOCA was in the best interests of the Carbon Revolution Companies because, without approval of the Proposed DOCA, the companies were likely to be placed into liquidation, which would inevitably result in worse outcomes for creditors and other stakeholders. The Proposed DOCA would enable the platform to continue to be operated as a going concern and would enable the full repayment of key ordinary unsecured creditors required for ongoing operation of the business where creditors agreed to new trading terms with the Carbon Revolution Companies for the post voluntary administration process.

21    Mr Crawford deposed that the administrators believed that it was likely that the Proposed DOCA would receive the approval of creditors at the second meeting, in which case the transaction would complete shortly thereafter.

22    Importantly, for current purposes, following provision of the OIC NBIO, OIC requested the administrators to incur significant liabilities in relation to contracts and purchase orders for goods which were expected to be supplied following the completion of the Proposed DOCA.

23    The supply contracts and purchase orders for goods were for specialised carbon fibre components which were made to order for the Carbon Revolution Companies, along with other key inputs, including resin. These products typically attract a minimum order quantity and material production lead time, and often also require sea freight to the Carbon Revolution Companies manufacturing premises in Geelong, Victoria. Production lead time from order placement to goods arrival can be up to six months. And there is also greater uncertainty at the moment being caused by the war in the Middle East.

24    Mr Crawford deposed that the administrators were concerned that:

(a)    they would be personally liable for significant liabilities in respect of those supplies incurred during the voluntary administration, but which would fall due after the effectuation of the Proposed DOCA when the relevant goods were delivered (which are not covered by the administration funding made available by OIC under the Bridge Facility and Bridge Facility Side Letter);

(b)    on effectuation of the Proposed DOCA, they would cease to have control of the Carbon Revolution Companies and their property and their bank accounts; and

(c)    in such a scenario, their ability to exercise their right of indemnity and to enforce their lien on the Carbon Revolution Companies’ property (which secures their right of indemnity) pursuant to ss 443D to 443F of the Corporations Act would be severely constrained, because they would no longer have control of the companies’ property;

(d)    the only funds in their possession following effectuation of the Proposed DOCA would be the limited cash contributions paid into the creditors’ trust.

Applicable principles

25    Section 443A of the Corporations Act provides as follows:

General debts

(1)    The administrator of a company under administration is liable for debts he or she incurs, in the performance or exercise, or purported performance or exercise, of any of his or her functions and powers as administrator, for:

(a)    services rendered; or

(b)    goods bought; or

(c)    property hired, leased, used or occupied, including property consisting of goods that is subject to a lease that gives rise to a PPSA security interest in the goods; or

(d)    the repayment of money borrowed; or

(e)    interest in respect of money borrowed; or

(f)    borrowing costs.

(2)    Subsection (1) has effect despite any agreement to the contrary, but without prejudice to the administrator's rights against the company or anyone else.

26    The purpose of these provisions is to provide assurance to creditors that the administrator is personally liable, to persuade the creditors to trade with the company and operate to ensure that administrators do not recklessly incur debts in trading on the company during the administration.

27    A debt is ordinarily incurred when the promise is made giving rise to the obligation, even if the obligation only arises in the future. If a contract for the provision of goods or services is entered into during the period of administration, it follows that the administrators continue to be personally liable for the services even if they are provided after the administration ends.

28    Of course, administrators have a statutory right under s 443D to be indemnified from the company’s property for debts or liabilities incurred during the administration, but they still face the risk of exposure to personal liability where there is insufficient property available to that statutory right of indemnity, or where the property is no longer within their control.

29    Section 447A of the Corporations Act and s 90-15 of the IPS each contain general powers with respect to the modification of provisions of Pt 5.3A of the Corporations Act.

30    The provisions empower the court to limit the personal liability of administrators under s 443A(1) for debts incurred during the administration: Strawbridge, Re Virgin Australia Holdings Ltd (admins apptd) (No 2) (2020) 144 ACSR 347 (Re Virgin (No 2)) at [90] (Middleton J).

31    In Re Virgin (No 2), Middleton J observed at [91]:

There can be no doubt that in the appropriate circumstances, personal liability can be excluded with respect to any arrangement where that enables the company's business to continue to trade for the benefit of the company's creditors. Further, s 447A can also be used to avoid liability before it is imposed: Silvia v FEA Carbot Pty Ltd (2010) 185 FCR 301 at [14] (Finkelstein J).

32    Algeri, in the matter of Murray & Roberts Pty Ltd (Administrators Appointed) [2022] FCA 1506 (Banks-Smith J) concerned the administration of a group of companies, which carried on the business of an international engineering and construction firm.

33    The administrators sought to limit their liability for debts incurred under agreements with respect to certain ongoing construction projects. The administrators’ proposal involved continuing necessary works and services without adopting existing operational agreements to the extent possible. Rather, it was proposed that the administrators would cause the relevant companies to issue purchase orders or enter into fresh agreements with the various counterparties to existing operational agreements on terms similar to those operational agreements.

34    Those purchase orders or agreements were to include a limited recourse provision by which the counterparty would agree that administrators would only be liable under s 443A to the extent of the assets of the relevant company that were available to satisfy their indemnity under s 443D. The administrators indicated that, at the time of issuing purchase orders or entering into agreements containing this language, they would remind the relevant counterparty that they do not have to accept the purchase order or enter into the agreement on those terms, and they could elect not to engage with the relevant companies and the administrators on a limited liability basis.

35    Justice Banks-Smith held that it was appropriate to limit the administrators’ liability in accordance with the proposal, for the following reasons:

60    Already the Administrators have successfully negotiated the Works Continuation Agreements with interim advance funding that allows works to continue on some of the Major Projects, at least within the parameters of those agreements. Orders that limit the Administrators' personal liability as proposed for the specified categories of agreements going forward are consistent with this approach, accord greater protection to the Administrators from the risk of personal liability relating to such projects, including risks that may not be currently apparent, and enhance the capacity of the Administrators to enter into agreements in connection with other projects and the operational aspects of the Business. Absent such relief, the Administrators cannot be expected to continue to trade and incur debts personally.

61    Second, there is unlikely to be prejudice or disadvantage to sub-contractors and suppliers by limiting the personal liability of the Administrators in circumstances where those creditors will have advance notice of the proposed terms of their particular arrangements with the respective Clough Companies, and will be in a position to accept or reject such arrangements. Further protection is provided by the Administrators' stated intention to remind counterparties that they do not have to accept the limited recourse terms of proposed purchase orders or agreements, and can elect instead not to engage with the Administrators.

62    Third, as to notice of the application, as the circumstances were urgent, it was not practical to seek the views of all creditors. However I am satisfied that the Administrators have taken reasonable steps in the circumstances to bring this application, and the orders sought, to the attention of interested parties and that it is appropriate to act on the evidence of Mr Orr, having regard to the absence of opposition before me today. In saying this, I do not ignore the letter of Thomson Geer referred to above, but the letter does not engage with the process for limiting liability that the Administrators seek to put in place. It is of particular importance that the orders proposed include an order which has the effect of giving other creditors and sufficiently interested persons who may not have been notified of the application an opportunity to be heard if they have any objections to the orders.

63    Accordingly, I consider it is appropriate to make orders under s 447A(1) of the Corporations Act and s 90-15 of the IPS limiting liability in the manner sought by the Administrators.

36    And as Derrington J said in Park, in the matter of IG Power (Callide) Ltd (Administrators Appointed) (No 2) [2024] FCA 1244 at [17]:

[M]ost instances where the courts have exercised the power under s 447A have involved funding agreements entered into by administrators with external parties in relation to the costs of the administration. The relief from liability granted typically has the effect of limiting recourse of the counterparty against the administrator to the extent to which they are able to be indemnified from the assets of the company in administration. Nevertheless, the power of the Court under s 447A is not so limited and extends to relieving the personal liability of an administrator in respect of any contract which enables the company to continue to trade for the ultimate benefit of the creditors.

Consideration

37    As I have explained, OIC has requested the administrators to incur significant liabilities in relation to contracts and purchase orders for goods which are expected to be supplied following the completion of the Proposed DOCA.

38    The administrators, together with OIC, have sought to mitigate their risk of personal liability with respect to these liabilities in these ways.

39    First, OIC has been negotiating with existing suppliers regarding entry into arrangements governing the post-DOCA relationship and which would, in effect, see all claims against the administrators released on completion of the Proposed DOCA (Supplier Agreements).

40    Between 13 April 2026 and 23 April 2026, the evidence was that eight suppliers agreed to enter into the Supplier Agreements, and it was expected that many more suppliers would agree to the Supplier Agreements in the coming days. The version of the Supplier Agreements provided to suppliers during this period contained the following release provision:

On the condition that the Completion Date is achieved, the Supplier irrevocably releases the Administrators from all obligations, liabilities and claims (for any amounts) whether incurred by the Administrators under the Agreement or otherwise.

41    On and from 24 April 2026, the proposed release wording was updated as follows:

The Administrators intend to obtain orders in the Federal Court of Australia pursuant to section 447A of the Corporations Act 2001 (Cth) to give effect to the above arrangements releasing and/or limiting the Administrators from liability, and a copy of the application (and orders, if made) will be available from the Administrators on request.

42    Mr Crawford deposed that no supplier had yet agreed to enter into the updated Supplier Agreements on those terms.

43    Secondly, the administrators have established a practice whereby, new purchase orders issued after 27 April 2026 by the Administrators on behalf of the Carbon Revolution Companies (the Administrators’ POs) contain wording to the following effect:

(a)    the administrators and their firm, partners, employees, agents, advisers or representatives do not incur or undertake any personal liability of any nature whatsoever to the third party or relevant counterparty (as the case may be) in connection with the purchase order, or for any act, matter or thing arising out of or in connection with the purchase order or under or in relation to any associated arrangements or negotiations, except where there is fraud, dishonesty or a breach of the law on the part of the administrators or their firm, partners, employees, agents, advisers or representatives;

(b)    the third party or relevant counterparty (as the case may be) will not commence or permit to be commenced in its name, or continue, any proceeding against the administrators in their personal capacity or their firm, partners, employees, agents, advisers or representatives of any nature whatsoever or in any way related to anything under the purchaser order;

(c)    the third party or relevant counterparty (as the case may be) releases the administrators and their firm, partners, employees, agents, advisers or representatives from all claims it has or claims to have, or, but for the release, might have had against them connected with or arising out of this purchase order (including in relation to the termination of the purchase order); and

(d)    if, and to the extent that, the administrators have any liability under or in connection with the purchase order, they will only be liable under section 443A of the Corporations Act on a limited recourse basis, namely limited to the assets of the relevant Carbon Revolution Company from which the administrators are indemnified for their personal liability under section 443D of the Corporations Act and for which the administrators have a lien over the assets of the relevant Carbon Revolution Company under section 443F of the Corporations Act.

44    But the administrators remain exposed to “personal liability”, because s 443A(2) provides that s 443A(1) has effect “despite any agreement to the contrary”.

45    For the reasons identified above, the administrators were concerned that their right of indemnity and lien against property of the Carbon Revolution Companies under ss 443D to 443F would not offer them sufficient protection, in circumstances where they would cease to have control of the companies’ property after the Proposed DOCA was effectuated.

46    Accordingly, they sought orders under s 447A and/or s 90-15 limiting their personal liability in a manner that is consistent with the contractual limitations upon liability in the Supplier Agreements and Administrators’ POs, but only to the extent that the relevant suppliers and counterparties agreed to and entered into those contractual arrangements.

47    I was satisfied that I should make orders limiting the liability of the administrators in accordance with paragraphs 2 and 3 of the originating process for the following reasons advanced by counsel for the administrators.

48    First, the administrators have formed the view that the DOCA Proposal is in the best interests of creditors and is likely to be approved at the second meeting of creditors. For the purpose of seeking to ensure that the Carbon Revolution Companies continue to operate as a going concern, and to maximise the potential for the Carbon Revolution Companies to operate successfully post implementation of the Proposed DOCA, OIC has requested the administrators to continue to operate the Carbon Revolution Companies in the intervening period and cause liabilities to be incurred under or in connection with the Supplier Agreements and Administrators’ POs. The administrators consider that continuing to trade the Carbon Revolution Companies is in the best interests of creditors and consistent with the corporate rescue object of Pt 5.3A of the Act.

49    Secondly, the proposed orders are unlikely to cause prejudice to the relevant suppliers and counterparties to the Supplier Agreements and Administrators’ POs, as their liability will be limited only where:

(a)    in the case of the Supplier Agreements, the counterparties have agreed to release the administrators;

(b)    in the case of the Administrators’ POs, the purchase orders contain the wording identified above and those terms have been agreed to by the counterparties; and

(c)    in each case, notice of the orders has been given to the relevant counterparties.

50    Thirdly, in the administrators’ view, the Administrators’ POs are on fair and reasonable terms, noting the short-term nature in which the administrators will be making the Proposed Purchase Orders. Similarly, the Supplier Agreements have and will continue to facilitate ongoing trade with suppliers with pre-administration terms.

51    Fourthly, whilst it has not yet been possible for the administrators to provide notice to all creditors and other potentially interested parties, where urgency necessitates an application being made without notice to creditors, as in a case like this, any disadvantage can be cured by requiring the administrators promptly to notify creditors of the orders made and providing a mechanism for any disaffected creditors to apply to the court to discharge the orders. See Crawford, in the matter of Unlocked Ltd (Administrators Appointed) [2018] VSC 345 at [69]-[71] (Sloss J). Hence, order 8 above giving any person with a sufficient interest liberty to apply.

Confidentiality orders

52    The administrators also sought an order (paragraph 6), pursuant to ss 37AF, 37AG and 37AJ of the Federal Court of Australia Act 1976 (Cth), on the ground that the order is necessary to prevent prejudice to the proper administration of justice, that Confidential Exhibit KC-2, as well as limited redacted paragraphs of the Crawford Affidavit, are to be marked “confidential” on the electronic court file and not be published or accessed, except pursuant to an order of the court, until such time that the external administration of the Carbon Revolution Companies has been finalised.

53    The court’s discretion to make an order under s 37AF(1) is enlivened where the order is necessary to prevent prejudice to the proper administration of justice: s 37AG(1)(a). The protection of commercially sensitive information is a sufficient basis to enliven the court's discretion on this ground.

54    Confidential Exhibit KC-2 to the Crawford Affidavit, and the redacted paragraphs of the Crawford Affidavit, contain commercially sensitive information in relation to the funding arrangements between the Carbon Revolution Companies and multiple counterparties, as well as the terms of the OIC NBIO and the Proposed DOCA. The need for the confidentiality orders that have been made was obvious.

Costs

55    The administrators also sought, and I made, the standard order that their costs of this application be costs in the administration.

Associate:

Dated:    12 May 2026

SCHEDULE OF PARTIES