Federal Court of Australia

Kelly, in the matter of Liberty Bell Bay Pty Ltd (Administrators Appointed) [2026] FCA 654

ORDERS

THE COURT ORDERS THAT:

Limitation of Administrators’ Liability (EPA Notice)

1.    Pursuant to s 447A(1) of the Corporations Act 2001 (Cth) and s 90-15 of the Insolvency Practice Schedule (Corporations) (Cth) being Sch 2 of the Corporations Act, Pt 5.3A of the Corporations Act is to operate in relation to the second plaintiff (Company) as if s 443A(1) of the Corporations Act provides that:

(a)    any liabilities incurred by or imposed on the first plaintiffs (Administrators) with respect to any obligations of the Company arising out, of or in connection with, the Environmental Protection Notice 12694/1 dated 14 April 2026 issued pursuant to the Environmental Management and Pollution Control Act 1994 (Tas) (EPA Notice), including but not limited to penalties, interest, costs, charges and expenses associated with the EPA Notice, 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 Company; and

(b)    if and to the extent that any liabilities of the Company for the EPA Notice are debts incurred by the Administrators in the performance and exercise of their functions as joint and several administrators of the Company, the Administrators will not be personally liable to repay such debts or satisfy such liabilities to the extent that the assets of the Company are insufficient to satisfy the debts and liabilities incurred by or imposed on the Administrators arising out of, or in connection with, the EPA Notice.

Extension of the Convening Period

2.    Pursuant to s 439A(6) of the Corporations Act, the convening period (as defined in s 439A(5)(a) of the Corporations Act) within which the Administrators must convene the second meeting of creditors in respect of the Company (Second Meeting of Creditors), be extended up to and including 29 July 2026.

3.    Pursuant to s 447A of the Corporations Act, Pt 5.3A of the Corporations Act is to operate in relation to the Company as if, notwithstanding the provisions in s 439A(2) of the Corporations Act, the Second Meeting of Creditors required under s 439A of the Corporations Act may be convened and held at any time during, or within five business days after the end of, the convening period as extended by Order 2 above, provided that the Administrators give notice of the Second Meeting of Creditors at least five business days before the meeting.

Confidentiality Orders in relation to the Sales Process Documents

4.    Until the end of the administration of the Company, or until further order of the Court, pursuant to ss 37AF and 37AG(1)(a) of the Federal Court Act 1976 (Cth) and on the ground that the order is necessary to prevent prejudice to the proper administration of justice:

(a)    paragraphs 76 and 106 – 109 of the Kelly Affidavit; and

(b)    Confidential Exhibit MJK-2 to the Kelly Affidavit except pages 10 – 14,

(together, the Confidential Material),

is not to be disclosed or published other than:

(c)    to a Judge of this Court hearing the application;

(d)    to the Judge’s staff or assistants;

(e)    to the plaintiffs and their legal representatives; or

(f)    to the Australian Securities and Investments Commission (ASIC) on the basis that in accordance with its obligations under s 127 of the Australian Securities and Investments Commission Act 2001 (Cth), unless required by law ASIC will take all reasonable measures to protect from unauthorised use or disclosure, directly or indirectly, the Confidential Material or its contents to any person except:

(i)    partners or employees of any external professional advisors engaged by ASIC, including legal advisors;

(ii)    counsel retained by any legal advisor of ASIC;

(iii)    expert witnesses retained by ASIC; or

(g)    with the approval of the plaintiffs or the Court.

General

5.    On the date of the making of the orders made by this Court (Orders), the Administrators must send a copy of the Orders to:

(a)    the creditors (including persons or entities claiming to be creditors) of the Company, 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 creditor portal accessible via the website maintained by the Administrators regarding the administration of the Company at https://restructuring.ey.com/case-details/6378 (Creditor Portal) where the creditor may download the Orders and the originating process;

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

(iii)    placing scanned, sealed copies of the Orders and the originating process on the Creditor Portal;

(b)    ASIC;

(c)    the Environment Protection Authority of Tasmania;

(d)    the Australian Workers’ Union, Tasmanian Branch;

(e)    the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturing Workers’ Union);

(f)    the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical, Energy and Services Division, Tasmania Branch;

(g)    the Mining and Energy Union, Tasmanian District Branch;

(h)    the Commonwealth of Australia, via its solicitors, MinterEllison;

(i)    the State of Tasmania, via its solicitors, Mallesons; and

(j)    the Department of Employment and Workplace Relations.

6.    The Administrators’ costs of the application be costs in the administration of the Company.

7.    Any person who can demonstrate a sufficient interest has liberty to apply to vary or discharge the Orders on three days’ notice to the plaintiffs and the Court specifying the relief sought.

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

REASONS FOR JUDGMENT

MOORE J:

1    By urgent originating process, the first plaintiffs (the Administrators) who are the joint and several administrators of the second plaintiff, Liberty Bell Bay Pty Ltd, (the Company), sought various forms of directions and orders related to an ongoing sale process in respect of the Company’s assets and business as a going concern. I heard the application on 24 April 2026 and made orders that day. These are the reasons for the making of those orders.

2    The Administrators were appointed to the Company on 23 March 2026, pursuant to a resolution of the Company’s board of directors. Upon their appointment, the Administrators identified that the Company had insufficient funds to fund the costs of the administration and to meet its debts as and when they fell due. The main asset of the Company is a manganese smelter located in Bell Bay, Tasmania, (the Smelter) that has been in a state of “limited operations” since May 2025, during which time it has not generated any material revenue. The only other potential assets of significance identified by the Administrators are causes of action arising from intercompany loans granted by the Company to members of its corporate group, the recoverability of which is not known.

3    The Administrators’ view is that the aggregate return to the Company’s creditors would be maximised through a sale or deed of company arrangement for the Company’s assets and business as a going concern, as opposed to placing it into liquidation. Such a sale would permit the Company to resume smelting operations, and allow for the ongoing employment of the Company’s employees.

4    The Administrators have therefore maintained limited operations at the Smelter with a view to preserving its value to a prospective purchaser. Ceasing these operations through a complete shutdown would threaten the value of the asset by suspending essential functions including site security, plant and equipment maintenance and facility management, and would require any purchaser to reconstitute its workforce. To fund these operations in light of the Company’s financial position, the Administrators have entered into funding arrangements with White Oak Commercial Finance Europe (Non-Levered) Limited company number 12536988 (White Oak).

5    The proceeding came before me in my capacity as Commercial & Corporations Duty Judge, and I listed the proceeding for an urgent hearing, primarily on the basis that the Administrators were intending to stand down most of the employees of the company from Saturday, 25 April 2026. This was because the Administrators had exhausted the funding allocated by them for the payment of general employees and the continued payment of those employees would jeopardise the ability of the Administrators to preserve and conduct an orderly sale of the Smelter and would likely force the company into liquidation. The Administrators sought urgent relief to protect them from personal liability in relation to the action to stand down the employees.

6    Late on the day before the hearing, I was informed that a joint funding commitment for employees had been obtained from the Tasmanian and Federal Governments, such that there was no need to stand down the employees that weekend and no need for relief in connection with the standing down of employees.

7    However, that left two matters. The first is that on 14 April 2026, the Environment Protection Authority of Tasmania issued a notice pursuant to s 44(1)(a) of the Environmental Management and Pollution Control Act 1994 (Tas) (EMPC Act) addressed to the Company in relation to the Smelter. The Administrators were concerned that they may incur personal liability in connection with this notice and sought appropriate relief.

8    The second is that the Administrators sought an extension of the convening period for the second creditors’ meeting to enable further time for the process for the sale of the Smelter to be continued. This was reasonably urgent because the convening period was set to end on the following Wednesday, 29 April 2026.

9    For the reasons set out below, I am satisfied that the relief sought by the Administrators should be granted, in the terms ordered above.

General approach to directions

10    Section 90-15 of the Insolvency Practice Schedule (Corporations) (IPS-Corps), which is at Schedule 2 of the Corporations Act 2001 (Cth) (Corporations Act), and given effect by s 600K of the Corporations Act, provides as follows:

90‑15    Court may make orders in relation to external administration

Court may make orders

(1)    The Court may make such orders as it thinks fit in relation to the external administration of a company.

Orders on own initiative or on application

(2)    The Court may exercise the power under subsection (1):

(a)    on its own initiative, during proceedings before the Court; or

(b)    on application under section 90‑20.

Examples of orders that may be made

(3)    Without limiting subsection (1), those orders may include any one or more of the following:

(a)    an order determining any question arising in the external administration of the company;

(b)    an order that a person cease to be the external administrator of the company;

(c)    an order that another registered liquidator be appointed as the external administrator of the company;

(d)    an order in relation to the costs of an action (including court action) taken by the external administrator of the company or another person in relation to the external administration of the company;

(e)    an order in relation to any loss that the company has sustained because of a breach of duty by the external administrator;

(f)    an order in relation to remuneration, including an order requiring a person to repay to a company, or the creditors of a company, remuneration paid to the person as external administrator of the company.

Matters that may be taken into account

(4)    Without limiting the matters which the Court may take into account when making orders, the Court may take into account:

(a)    whether the liquidator has faithfully performed, or is faithfully performing, the liquidator’s duties; and

(b)    whether an action or failure to act by the liquidator is in compliance with this Act and the Insolvency Practice Rules; and

(c)    whether an action or failure to act by the liquidator is in compliance with an order of the Court; and

(d)    whether the company or any other person has suffered, or is likely to suffer, loss or damage because of an action or failure to act by the liquidator; and

(e)    the seriousness of the consequences of any action or failure to act by the liquidator, including the effect of that action or failure to act on public confidence in registered liquidators as a group.

11    I previously set out the principles governing the Court’s power to make “such orders as it thinks fit” under s 90-15 in Keenan, in the matter of Prospero Markets Pty Ltd (In liq) 175 ACSR 522; [2025] FCA 390 at [21] – [23]. The power is “very broad”, and is to be exercised having regard to the objects of Part 5.3A of the Corporations Act, which require a wide interpretation that facilitates external administrators’ performance of their function: Kelly, in the matter of Halifax Investment Services Pty Ltd (in liquidation) (No 8) (2020) 144 ACSR 292; [2020] FCA 533 at [51] (Gleeson J); Hill, in the matter of Autocare Services Pty Ltd (administrators appointed) [2021] FCA 167 at [42] (Farrell J).

General approach to limitation of administrators’ liability

12    Section 443A of the Corporations Act, which is contained in Part 5.3A, relevantly provides that:

443A    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.

13    Sections 443D, 443E and 443F of the Corporations Act provide a right of indemnity that, in general terms, would permit the Administrators to be reimbursed out of the assets of the Company to meet debts for which they are otherwise personally liable. However, the liability of the Administrators is not limited to the assets of the Company from which the Administrators may be reimbursed. That is, the Administrators’ liability is presumptively unlimited and may exceed the amount that the Company is capable of providing by way of reimbursement: Freeman, in the matter of Regional Express Holdings Ltd (administrators appointed) (No 4) [2025] FCA 385 at [11] (Stewart J).

14    Section 447A of the Corporations Act confers a general power for the Court to make orders as to how Part 5.3A operates in respect of a particular company in administration:

447A     General power to make orders

(1)    The Court may make such order as it thinks appropriate about how this Part is to operate in relation to a particular company.

…

(3)    An order may be made subject to conditions.

(4)    An order may be made on the application of:

(a)    the company; or

(b)    a creditor of the company; or

(c)    in the case of a company under administration—the administrator of the company; or

(d)    in the case of a company that has executed a deed of company arrangement—the deed’s administrator; or

(e)    ASIC; or

(f)    any other interested person.

15    It is well-settled that this power extends to making orders limiting the personal liability of an administrator under s 443A(1). The rationale for making such orders is that administrators should be guided by the interests of creditors, and uninfluenced by personal liabilities they may incur: Park, in the matter of IG Power (Callide) Ltd (Administrators Appointed) (No 2) [2024] FCA 1244 (IG Power) at [15] (Derrington J). In Mentha, in the matter of Griffin Coal Mining Company Pty Ltd (administrators appointed) (2010) 82 ACSR 142; [2010] FCA 1469 at [30], Gilmour J summarised criteria for the exercise of the power (citations omitted):

The principles governing the granting of an application for orders under s 447A to vary the liability of administrators under s 443A can be summarised as follows:

(a)    the proposed arrangements are in the interests of the company’s creditors and consistent with the objectives of Pt 5.3A of the Corporations Act….

(b)    typically the arrangements proposed are to enable the company’s business to continue to trade for the benefit of the company’s creditors….

(c)    the creditors of the company are not prejudiced or disadvantaged by the types of orders sought and stand to benefit from the administrators entering into the arrangement….

(d)     notice has been given to those who may be affected by the order….

16    The essential question to be answered is, therefore, whether the limitation contended for by the Administrators is necessary to permit the Company to be administered in a way that maximises the potential return to its creditors. An element of that consideration is ensuring that the Company’s creditors are not prejudiced or disadvantaged by the Court’s exercise of power: IG Power at [19].

Environmental Protection Notice

17    On 14 April 2026, the Director of Environmental Management of the Tasmanian Environment Protection Authority (EPA) issued the Company an environment protection notice (the April EPN) pursuant to the EMPC Act. The EMPC Act provides a statutory scheme whereby persons responsible for “environmentally relevant activities”, such as the operation of the Smelter, require permits granted by the EPA that impose various regulatory conditions and requirements. For example, the Smelter’s operation is subject to permit conditions that limit the scope of its operations and require the Company to comply with management plans approved by the EPA.

18    The April EPN was issued pursuant to s 44(1)(a) of the EMPC Act, which provides as follows:

44     Environment protection notices

(1)    Where the Director is satisfied that in relation to an environmentally relevant activity –

(a)    serious or material environmental harm or environmental nuisance is being, or is likely to be, caused; or

(b)    serious or material environmental harm or environmental nuisance has occurred and remediation of that harm or nuisance is required; or

(c)    it is necessary to do so in order to give effect to a State Policy, an environment protection policy, environmental standards or a technical standard; or

(c)    it is necessary to do so in order to give effect to a State Policy, an environment protection policy, environmental standards or a technical standard; or

(d)    it is desirable to vary the conditions or restrictions of a permit or major project permit; or

(e)    it is necessary to secure compliance with the general environmental duty –

the Director may cause an environment protection notice to be issued and served on the person who is or was responsible for the environmentally relevant activity.

19    The basis for the April EPN, as specified in the notice, was that the EPA was satisfied that environmental harm was likely to occur as a result of the Company’s voluntary administration. It identified that the administration could result in the Company ceasing to maintain or operate critical equipment due to reduced staffing or interrupted electricity supply. Specifically, the April EPN identified various wastewater pumps which, if not operated, could cause polluted water to overflow from fume dams, the leachate pond and settling ponds into the River Tamar or surrounding wetlands. It also identified general concerns about the storage of hazardous materials and maintenance of dust suppression and dust management infrastructure.

20    The April EPN stated that it did not impose any additional obligations on the Company or prescribe any specific remedial action. In that regard, it said:

These actions are already required (expressly or impliedly) under the permits or their required Environmental Management Plan/s. This notice does not impose additional obligations.

21    To the extent that it is said that the existing obligations are “implied”, the April EPN has at least the effect of imposing express obligations that may previously have been implicit.

22    The April EPN specified certain measures that the EPA considered were already required by the existing permits held by the Company:

a)    A restriction on the discharge of contaminated water from the Activity to the River Tamar.

b)    A monitoring program for accurate measurement of discharge and to monitor potential impact upon the receiving environment.

c)    Requirements for suitably qualified personnel and sufficient supplies are necessary to ensure critical equipment and treatment processes are maintained to manage water flows and quality.

d)    A requirement to ensure hazardous material is suitably stored.

23    The April EPN did not allege or identify any current contravention of these conditions or any other environmental obligations of the Company. That is consistent with the Administrators’ evidence, which is that they have taken steps to comply with all of the Company’s obligations, and do not believe there is any ongoing contravention. The EPA, who were served with the Administrators’ originating process and evidence, have not expressed any contrary view. As a result of the funding arrangements negotiated with the Federal and Tasmanian Governments, the April EPN’s concerns as to staffing levels have not yet materialised.

24    However, it remains the case that the financial resources available to the Administrators to meet the Company’s obligations under the April EPN and EMPC Act are limited. The lack of operations at the Smelter means that no revenue is being generated, and there is insufficient working capital to resume operations. This continues to create some prospect that, should the voluntary administration continue without any injection of working capital, the Company may become unable to continue to meet the requirements of the April EPN.

25    Non-compliance with the April EPN would have two relevant consequences. First, contravening a requirement of a notice is an offence pursuant to s 45(3) of the EMPC Act:

45    Duties arising under environment protection notice

…

(3)    If a person bound by an environment protection notice contravenes a requirement of the notice, that person is guilty of an offence and is liable on summary conviction to –

(a)    if the notice was issued for the purpose of securing compliance with a requirement imposed by or under this Act and a penalty is fixed by this Act for contravention of that requirement, that penalty; or

(b)    in any other case, a penalty not exceeding 1000 penalty units in the case of a body corporate or 500 penalty units in any other case.

26    That offence is subject to a general defence provided for in s 55 of the EMPC Act, in the following terms:

55    General criminal defence

(1)     It is a defence to a charge of an offence against this Act, including –

(a)    an offence by a body corporate or a natural person where conduct or a state of mind is imputed to the body corporate or person under this Part; and

(b)    an offence by an officer of a body corporate under this Part –

if it is proved that –

(c)    the alleged offence did not result from any failure on the defendant’s part to take all reasonable and practicable measures to prevent the commission of the offence or offences of the same or a similar nature; or

(d)    the act or omission alleged to constitute the offence was justified by the need to protect life, the environment or property in a situation of emergency and that the defendant was not guilty of any failure to take all reasonable and practicable measures to prevent or deal with such an emergency.

(2)     . . . . . . . .

(3)    Where a body corporate or other employer seeks to establish either of the defences provided by this section by proving the establishment of proper workplace systems and procedures designed to prevent a contravention of this Act, that proof must be accompanied by proof–

(a)    that proper systems and procedures were also in place whereby any such contravention or risk of such contravention of this Act that came to the knowledge of a person at any level in the workforce was required to be reported promptly to the governing body of the body corporate or to the employer, or to a person or group with the right to report to the governing body or to the employer; and

(b)    that the governing body of the body corporate or the employer actively and effectively promoted and enforced compliance with this Act and with all such systems and procedures within all relevant areas of the workforce.

(4)     A person who would, but for either of the defences provided by this section, be guilty of an offence of contravening a provision of this Act is, despite that defence, to be taken to have contravened that provision for the purposes of–

(a)    any civil proceedings under this Act in respect of the contravention; and

(b)    the issuing or enforcement of any environment protection notice, investigation notice, remediation notice or site management notice under this Act in respect of the contravention; and

(c)    the making by a court of an order under section 63 in proceedings for an offence in respect of the contravention.

27    The second consequence of non-compliance with the April EPN would be that the EPA could take remedial actions itself, and recover the costs of doing so from the Company. That is provided for by s 47 of the EMPC Act, in the following terms:

47    Action on non-compliance with environment protection notice

(1)    The Director or, in the case of an environment protection notice served by a council officer, the council may take any action required by an environment protection notice if the requirements of the notice are not complied with within –

(a)    the period specified in the notice under section 44(3)(d)(iii) ; or

(b)     if a period is not so specified in the notice, a reasonable time.

(1A)    In determining what is a reasonable time for the purposes of subsection (1)(b), regard must be had to –

(a)    the seriousness of the environmental harm that has occurred or is likely to occur as a result of the act or omission which is the subject of the environment protection notice; and

(b)     the type of measures the environment protection notice requires the person on whom it is served to undertake to prevent, control, reduce or remediate that environmental harm and the degree of difficulty that person is likely to have in undertaking and completing those measures.

(2)    Any action to be taken under subsection (1) may be taken –

(a)    on the Director’s behalf, by authorized officers; and

(b)     on the council’s behalf, by council officers.

(3)    The reasonable costs and expenses incurred by the Director or a council in taking action under this section may be recovered by the Director or the council as a debt from the person who failed to comply with the requirements of the environment protection notice.

(4)     Where an amount is recoverable from a person under this section, the Director or the council may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person.

(5)    If the amount is not paid by the person within the period fixed, the person is liable to pay interest charged at the prescribed rate on the amount unpaid.

28    The operation of ss 45 and 47 of the EMPC Act therefore could create significant liabilities for the Company should it fail to comply with the April EPN. The Administrators’ evidence is that these liabilities are likely to exceed the assets of the Company from which they could seek reimbursement, with the result the Administrators could become personally liable for the resulting debts. It is said that this prospect of unknown and significant personal liability presents an intolerable risk to the ongoing administration, and would require the Administrators to terminate the voluntary administration of the company by placing it into liquidation.

Consideration

29    In the circumstances, I am satisfied that the order sought is in the best interests of creditors by permitting the Administrators to continue the administration by maintaining the limited operations necessary to preserve the value of the Smelter as an asset. It is tolerably clear from the evidence of the Administrators that the return to creditors from liquidation of the Company would be limited and, in any event, less than the amount that could be returned through the sale of the Company’s assets as a going concern. The interests of the Company’s creditors is therefore served through the Administrators continuing the ongoing sale process without them being diverted by the spectre of personal liabilities arising out of the April EPN.

30    In addition, the limitation of liability sought is appropriately confined to liabilities incurred by the Administrators in their capacity as administrators of the Company arising out of, or in connection with, the April EPN. It does not extend to any personal liability that the Administrators may incur as officers of the Company under the EMPC Act, including under s 60, in circumstances where the following statutory preconditions are met:

60    Liability of officers of body corporate

(1)    Where a body corporate commits an offence against this Act, a person who is an officer of the body corporate is –

(a)    subject to the general defence under this Part, guilty of an offence; and

(b)    subject to subsection (2) , liable to the same penalty as may be imposed for the principal offence when committed by a natural person.

(2)    Where an officer of a body corporate is convicted of an offence under subsection (1) , the officer is not liable to be punished by imprisonment for the offence.

(3)    Where a body corporate commits an offence of contravening a provision of this Act, an officer of the body corporate who knowingly promoted or acquiesced in the contravention is also guilty of an offence against that provision.

(4)    An officer of a body corporate may be prosecuted and convicted of an offence pursuant to subsection (1) or (3) whether or not the body corporate has been prosecuted or convicted of the offence committed by the body corporate.

31    As the Administrators accepted, it would not be an appropriate exercise of the Court’s powers under s 90-15 of the IPS-Corps or s 447A of the Corporations Act to insulate officers of the Company from accessorial liability that may arise under the EMPC Act. The effect of the relief sought is not to immunise the Administrators from any form of liability under the EMPC Act. Rather, its effect is to ensure the Administrators’ personal liabilities for contraventions by the company do not exceed the assets available for reimbursement, in order that the Administrators can appropriately maintain operations in order to maximise the return to creditors through a sale of the Company as a going concern.

The extension of the convening period

32    The second form of relief sought by the Administrators is an extension of time for the Administrators to hold a second creditor’s meeting. That extension is sought pursuant to s 439A(6), which relevantly provides as follows:

439A    Administrator to convene meeting and inform creditors

(1)    The administrator of a company under administration must convene a meeting of the company’s creditors within the convening period as fixed by subsection (5) or extended under subsection (6).

Note: For body corporate representatives’ powers at a meeting of the company’s creditors, see section 250D.

(2)    The meeting must be held within 5 business days before, or within 5 business days after, the end of the convening period.

(5)    The convening period is:

(a)    if the day after the administration begins is in December, or is less than 25 business days before Good Friday —the period of 25 business days beginning on:

(i)    that day; or

(ii)    if that day is not a business day--the next business day; or

(b)    otherwise—the period of 20 business days beginning on:

(i)    the day after the administration begins; or

(ii)    if that day is not a business day--the next business day.

(6)    The Court may extend the convening period on an application made during or after the period referred to in paragraph (5)(a) or (b), as the case requires.

33    The legal principles underpinning the Court’s discretion and power under s 439A(6) are well settled. They have been considered in Strawbridge, in the matter of Virgin Australia Holdings Pty Ltd (administrators appointed) (No 2) (2020) 144 ACSR 347; [2020] FCA 717 at [64] – [68] (Middleton J); Hams (Administrator), in the matter of Onesteel Manufacturing Pty Ltd (Administrators Appointed) (2025) 174 ACSR 61; [2025] FCA 219 at [24] – [30] (Neskovcin J) and Frisken, in the matter of Xpress Transport Solutions Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) [2023] FCA 448 at [30] – [38] (Cheeseman J).

34    The central concern, as identified by the Court in Silvia, in the matter of Austcorp Group Limited (Administrators Appointed) [2009] FCA 636 at [18] per Lindgren J, is the need to balance the expectation that an 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 may provide better returns for creditors, or that may enable the company to return to trading in the interests of creditors: Diamond Press Australia Pty Limited [2001] NSWSC 313 at [10] (Barrett J). In Farnsworth v About Life Pty Limited (Administrator Appointed), in the matter of About Life Pty Limited (Administrator Appointed) [2019] FCA 11 (About Life), Thawley J identified several specific factors that weighed in favour of the convening period being extended, which relevantly included the following at [6] (citations omitted):

•    the time needed for thorough assessment of a proposal for a deed of company arrangement…;

•    where the extension will allow sale of the business as a going concern…;

•    more generally, that additional time is likely to enhance the return for unsecured creditors….

35    In About Life at [8], Thawley J also made the following observations about the approach taken to extensions to convening periods:

… 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 the periods sought by administrators…

36    The Administrator also seeks an order commonly described as a “Daisytek order” to allow the second meeting of the creditors required by s 439A to be held at any time before, or within five business days after, the end of the extended convening period, notwithstanding the operation of s 439A(2): In the matter of Daisytek Australia Pty Limited (2003) 45 ACSR 446; [2003] FCA 575 at [10] – [14] (Lindgren J). Absent such an order, s 439A(2) would require the Administrators to wait until five days before the end of the convening period to hold a creditor’s meeting, even if a satisfactory deed of company arrangement is ready to be put to creditors before that time. The effect of the “Daisytek order” is to dispense with that requirement, and give the Administrators more flexibility to convene the second creditors’ meeting earlier than otherwise would be allowed: Algeri (Administrator), in the matter of Murray & Roberts Pty Ltd (Administrators Appointed) (No 2) [2022] FCA 1563 at [6] (Banks-Smith J).

Consideration

37    The Administrators seek an extension of the convening period on the basis that the second meeting of creditors is currently required to be held before the ongoing sale period is expected to conclude. If that meeting of creditors occurs as presently required, the sale process will not have resulted in a deed of company arrangement to be put to the creditors, with the likely result that the creditors would resolve to have the Company wound up.

38    As noted previously, the Administrators’ evidence is that the return to the Company’s creditors would be maximised through a sale of the Smelter as a going concern. The Administrators depose that a sale process has commenced, expressions of interest have been received from prospective purchasers and negotiations are underway. It is expected that this process is reasonably likely to lead to a binding sale or deed of company arrangement proposal. The extension sought reflects the amount of time the Administrators contend is necessary for such an agreement to be reached, in order that an agreed deed of company arrangement could be put to creditors at the deferred second meeting.

39    I consider that it is tolerably clear that the current sale process has some prospect of resulting in a deed of company arrangement for the sale of the Company and its assets as a going concern. I also accept that such a sale is the course most likely to enhance the return to the Company’s secured creditors. In these circumstances, the extension does not suggest any apparent prejudice to creditors. The proposed relief was communicated to creditors through the creditor portal operated by the Administrators and has not elicited any complaint or expression of concern from those creditors or any other stakeholders of the company.

40    In addition, I am satisfied the “Daisytek order” sought by the Administrators should also be granted, in order to afford the Administrators flexibility to convene the second creditors’ meeting sooner than otherwise required by s 439A(2) should a binding deed of company arrangement satisfactory to the Administrators be ready for presentation to the creditors sooner than the period provided for. I am satisfied this flexibility would be in the interests of creditors by allowing the Administrators more flexibility to conclude the sale process rather than, effectively, requiring them to sit on their hands until the statutory deadline is reached.

41    I will otherwise order that the Administrator give notice of these orders to creditors, the Australian Securities and Investments Commission, the EPA, the solicitors for the Federal and Tasmanian Governments, and the various industrial associations representing the Company’s employees. I will also give interested parties liberty to apply to vary or discharge the orders. The Administrators’ costs of the originating process will be costs in the administration.

Associate:

Dated:    27 May 2026