Federal Court of Australia

Australian Agricultural Opportunities Limited v Agripower Australia Limited (subject to deed of company arrangement) [2026] FCA 777

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 445D of the Corporations Act 2001 (Cth), the deed of company arrangement between the First to Fourth Defendants dated 29 October 2025 be terminated.

2.    Pursuant to s 447A of the Corporations Act, Part 5.3A of the Corporations Act is to operate in relation to the First Defendant so that Mark Alfred Holland and Jason Preston are to be appointed as joint and several liquidators of the First Defendant (liquidators) pursuant to s 446AA of the Corporations Act upon the termination of the deed of company arrangement pursuant to order 1.

3.    Upon the termination of the deed of company arrangement and the appointment of the liquidators, the amount of AU$166,200 held in Court for security for costs be released to a bank account nominated by the liquidators for the purpose of funding their investigations into claims or prospective claims relating to the affairs of the First Defendant.

4.    The First and Fourth Defendants pay the Plaintiffs’ costs of the originating process, as agreed or assessed.

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

REASONS FOR JUDGMENT

DOWNES J:

1    This is an application brought by Australian Agricultural Opportunities Limited IT-311861 (AAOL) seeking an order pursuant to s 445D of the Corporations Act 2001 (Cth) terminating a deed of company arrangement entered into by the first defendant, Agripower Australia Limited (Agripower), with the second and third defendants (the Administrators) and the fourth defendant, Agrisilicon Pty Ltd (Agrisilicon) on 29 October 2025 (the DOCA).

2    AAOL also sought an order pursuant to s 447A of the Corporations Act that Mr Mark Holland and Mr Jason Preston be appointed as joint and several liquidators of Agripower upon the termination of the DOCA, and other ancillary orders.

3    At the hearing earlier this month, I made orders granting the relief sought by AAOL. These are my reasons for doing so.

BACKGROUND

4    Agripower, which was incorporated in 2008, is an unlisted public company. It is the ultimate holding company of eighteen Australian and international incorporated subsidiaries (the Agripower Group). Mr Peter Prentice has been a director of Agripower since 2008, along with others. Mr Prentice is either the sole or one of the directors of all of the companies in the Agripower Group. Other directors of Agripower are Mr Leslie Parkinson and Mr William Pouw.

5    The primary business of the Agripower Group is the mining of diatomaceous earth at the Conjuboy mine in Greenvale, North Queensland, and the production and sale of silicon-based fertiliser called “Agrisilica”. This product is in the relatively early stages of commercialisation, and Agripower cannot yet manufacture and sell it in significant quantities.

6    The Agripower Group holds a mining lease, mineral development licenses and exploration permits. Agripower is also the owner of a patent, and is the entity via which third parties invest in the Agripower Group and the entity which holds any cash on behalf of the Group.

7    AAOL is the corporate entity through which Arqaam Capital (Arqaam), a Dubai-based financial services and investments firm, and its investors invested in Agripower. Mr Anis Bibi is a director of AAOL and a managing director of Arqaam.

8    According to Mr Bibi’s unchallenged affidavit evidence:

(1)    Between 2016 and 2017, AAOL subscribed for a total of 31,879,226 Unsecured Notes (the Arqaam Notes), in consideration for payments totalling USD$31,879,226.07. The maturity date of the Arqaam Notes was on 17 June 2021. By 17 June 2021, the amount outstanding under the Arqaam Notes was US$41,124,074.06, including interest of US$9,244,847.99. Agripower consistently failed to pay the interest that had fallen due on the Arqaam Notes.

(2)    Following a demand for payment, an addendum was entered which included a term that Agripower was to pay the balance of US$30,212,342.07 plus any further accrued interest to Arqaam on a date to be agreed (the Closing Date). The Closing Date was never agreed. Based on discussions which Mr Bibi had with Mr Prentice, Agripower did not have the capacity to make the payment required on that date. Default interest continued to accrue.

(3)    In 2017, Agripower also issued secured convertible notes to Snowflake Holdings Pte Ltd (ADM) with a total face value of US$45 million (ADM Notes). In November 2022, Agripower entered into a Deed of Forbearance with ADM, which recorded that the amount owing at that date was US$73,507,829.34 and that Agripower had failed to repay ADM since September 2021. This deed was entered without the knowledge of Arqaam.

(4)    In November 2022, AAOL gave Agripower notice that it was in default of the term of the Arqaam Notes.

9    Mr Bibi was formerly an alternate director of Agripower, having resigned in November 2022. Mr Bibi’s unchallenged evidence was that his resignation was prompted by concerns about the conduct of Mr Prentice and his management of Agripower, including that Mr Bibi did not have the ability to review or approve Agripower’s financial statements, and that he had been excluded from the management of the company.

10    AAOL entered into a Deed of Forbearance with Agripower in December 2022 which recorded an admission by Agripower that it was in breach of the terms of the Arqaam Notes and the ADM Notes, and that Agripower was seeking to raise funds to meet its financial obligations.

11    As to this, Mr Bibi gave evidence that:

At the time of the Forbearance Deed and over the following twelve months, I understood from my discussions with Mr Prentice that Agripower was continuing to look for potential investors to provide ongoing funding to Agripower, including by refinancing ADM’s and AAOL’s debt.

AAOL did not take steps to enforce its debt because, amongst other things, I was hopeful that Agripower might obtain significant investment and become a viable business. Mr Prentice told me on many occasions that Agripower was in the process of obtaining significant funding. For example, in Agripower’s financial statements for the year ending 30 June 2023, Agripower represented on page 14 that it had ‘finalized’ or was ‘in the process of finalizing’ significant capital raised (including US$110 million via green bonds) to repay ADM and AAOL.

12    In evidence was an email exchange between Mr Tony Slevin, another holder of convertible notes, and Mr Prentice. Mr Slevin had invested money in Agripower both personally and through his superannuation fund, and he wrote to Mr Prentice on 21 August 2023 referring to the maturity date of the notes of 30 August 2023 and to an offer to vary the notes, and asking when Agripower proposes to pay the outstanding interest. Mr Prentice responded that same day stating (inter alia) that “[w]e are working towards having all our new fundraising completed in October”. By email dated 24 August 2023, Mr Slevin declined to extend the maturity date and confirmed that the payment of $500,000 plus accrued interest of approximately $86,000 was due on 30 August 2023.

13    By email dated 8 September 2023, Mr Prentice wrote to Mr Slevin:

As you are aware we are well advanced in this new funding package comprising debt and equity and so I am dealing with 2 existing lenders, equity investors and the Green Bond people, and four groups of lawyers to try and finalize everything. However, any change like pay out on the Convertible Notes I have to run through everyone because it changes documents, models etc. Not an issue but it is a process and time consuming.

I just wanted you to know we are working hard to finalize this for you.

14    Subsequent email exchanges between Mr Prentice and Mr Slevin are also in evidence, including a further one dated 15 March 2024 in which Mr Slevin complained about corporate governance issues. The excuses given by Mr Prentice for the delay in obtaining further finance and making payment to Mr Slevin referred to, for example, the COVID-19 pandemic, that he had contracted COVID-19, a “shipping container debacle” which had “impacted [all] shipments since December”, Mr Prentice’s trip to Europe “working with new investors and current lenders”, the “closure of Suez”, the “earthquake in Morocco”, and that the investment committee of a new lender was meeting but this was being arranged around Ramadan. Under cross-examination, Mr Prentice appeared to blame the lack of management accounts since February on the fact that “North Queensland has had its biggest wet in 110 years”.

15    In an email to Mr Slevin dated 27 May 2024, Mr Prentice referred to being in “discussions with existing lenders on restructuring the Company as we have requested that there is a substantial conversion of their debt to equity as per their convertible notes”. Under cross-examination, Mr Prentice accepted that the reference to “existing lenders” included Arqaam. The email also referred to the “existing lenders” being “supportive”. The reference to existing lenders restructuring their debt and “converting to equity” was reiterated in an email of 29 July 2024. In an email to Mr Slevin dated 16 January 2025, Mr Prentice stated that “It is likely that Arqaam will convert at $5.40 per share”.

16    Mr Bibi was the primary contact between Arqaam and Mr Prentice. He was not required for cross-examination at the hearing. Mr Bibi’s unchallenged affidavit evidence included a denial of any discussion about Arqaam converting the Arqaam Notes at a price other than the price dictated in those notes until the proposal for the DOCA was provided to Mr Bibi. The effect of Mr Prentice’s oral evidence given under cross-examination (as best as I can follow it) sought to contradict Mr Bibi’s evidence on this topic; however, I do not accept that Mr Prentice is a reliable witness for the reasons given below.

17    In June 2024 and in the midst of staving off Mr Slevin’s demands for payment, Agripower transferred its shares in various entities within the Agripower Group to Agrisilicon on the day after the latter company was incorporated. Agrisilicon is wholly owned by Agripower and has Mr Prentice as its sole director. This transfer was done without Arqaam’s knowledge. By his affidavit, Mr Prentice does not explain what, if any, consideration was given by Agrisilicon for this transfer.

18    In a letter to shareholders dated 6 January 2025, Mr Prentice referred to a recommendation of a “full debt restructuring of the existing ADM and Arqaam loans” and “[s]ince July, this has been the subject of much discussion to reach the point where both lenders would accept a restructuring”. The letter also refers to negotiations with Arqaam of “a structure whereby the Arqaam unsecured debt will be predominantly converted to equity”. Based on Mr Bibi’s evidence, these are further incorrect statements made by Mr Prentice. In particular, Mr Bibi’s evidence was that “At no stage had I, or to my knowledge anyone within AAOL or Arqaam, said to Mr Prentice that AAOL would accept converting the bulk of its debt into equity, nor was any documentation to that effect in progress”.

19    On 15 September 2025, the Administrators were appointed to Agripower. AAOL was admitted as a creditor for voting purposes in the sum of AU$86,159,730.51. AAOL is the largest unsecured creditor of Agripower.

20    On 13 October 2025, the Administrators issued their report to creditors (Report) along with the notice of meeting for the second meeting of creditors scheduled for 21 October 2025. The Report referred to a proposed deed of company arrangement submitted by the directors of Agripower, which had only been received by the Administrators on the day that the Report was issued.

21    As such, the Administrators indicated in the Report that, whilst the proposed deed may compare favourably to liquidation based upon the information made available during the period of administration, the absence of a current independent valuation of the mining tenements and the ongoing questions as to the financial position of Agripower meant that the Administrators could not meaningfully assess comparative outcomes between the deed and a liquidation at the time of the Report. The Administrators recommended an adjournment of the second creditors’ meeting to enable them to provide a properly informed recommendation to creditors to permit them to make an informed decision as to the future of Agripower.

22    The second meeting of creditors took place on 21 October 2025 as originally scheduled and, despite their earlier recommendation, the Administrators rejected Mr Bibi’s request to adjourn the meeting of their own motion because they were concerned that an adjournment might prompt ADM to appoint a receiver, and 19 special proxies voted against adjournment, including a proxy given by ADM.

23    At the meeting, Mr David Ross, one of the Administrators, acted as Chairperson. He advised the meeting that the nature of the entities within the Group are intertwined with various trading liabilities having gone through Agripower’s bank account, and that the Company (and the Group) lacked corporate governance, particularly for a Group of this size and nature.

24    At the meeting, a majority of creditors approved entry into the proposed deed of company arrangement. AAOL voted against it, with Mr Bibi foreshadowing this application to set it aside.

25    The DOCA was executed on 29 October 2025. In summary, it provided for:

(1)    an agreement by Agrisilicon to pay a contribution amount of $460,000 to Agripower in instalments of $100,000 upon execution and $60,000 per month for 6 months commencing on or before 30 November 2025 and ending on or before 30 April 2026 (the Deed Fund).

(2)    the division of Agripower’s creditors into classes. Class B creditors were unsecured noteholders, including AAOL. The DOCA had the substantive effect of converting AAOL’s debt, and the debts of other unsecured noteholders, into equity, thereby displacing them as creditors of Agripower at a conversion rate less favourable than if AAOL had converted its debt prior to a DOCA being entered.

(3)    in full satisfaction of their claims, Class A creditors to share in the distribution of the Deed Fund, whereas Class B creditors would receive one ordinary share in Agripower for each US$5.40 owed. Clause 12(e) of the DOCA provided that any shares issued under it must occur under the supervision of the Administrators.

(4)    Agripower being returned to the control of its directors, including Mr Prentice, subject to the rights of secured creditors and with the exception that the Administrators, in their capacity as deed administrators, would solely control and administer the Deed Fund.

(5)    the Deed Fund being distributed by first paying the Administrators’ remuneration and costs, then any outstanding superannuation entitlements, then Class A creditors, and then Agripower.

26    The Administrators’ assessment in their Report as to a return under the DOCA was 11c/$ (to Class A creditors), compared to a low case of 0c/$ to a high case of 1.68c/$ (to all creditors) if Agripower was placed into liquidation. In their latest report dated 21 May 2026, the Administrators have updated that analysis and have noted that the return of 11c/$ will materially increase for Class A creditors now that the Australian Taxation Office (ATO) has indicated that it no longer has a claim against Agripower.

27    Since the DOCA was executed, Agrisilicon has paid the contribution amount of $460,000 in full. These funds have come solely from entities within the Agripower Group, rather than from third party funding. As such, the contribution amount paid has been funded indirectly by Agripower. It is also relevant to note that an intercompany loan in the amount of over $172 million is owed by Agrisilicon to Agripower as at FYE 2025 pursuant to advances which the Report described as “undocumented, unsecured, non-interest-bearing, and [which] do not appear to have any fixed repayment terms”.

28    After being told by the Administrators on 19 December 2025 that the shares could not be issued to the Class B creditors at that time, Mr Prentice purportedly caused Agripower to issue the shares on or about 22 December 2025 without the knowledge or involvement of the Administrators. The Administrators have taken the view that the issue of these shares is not an issuance pursuant to the terms of the DOCA, and is a contravention of it.

29    When asked by AAOL’s counsel whether the purported share issue was not permitted under the DOCA, Mr Prentice answered “That’s correct”. However, in his affidavit dated 18 May 2026, Mr Prentice deposed that he “caused the shares to be issued in good faith and in the belief that I was acting in accordance with the DOCA”. When pressed on whether that statement in his affidavit was incorrect, Mr Prentice admitted that he knew, at the time that he swore the affidavit, that it was untrue. Mr Prentice then sought to explain this discrepancy on the basis that “we were raising money and people wanted to see shares on issue by going to ASIC”, and that he believed the share issue to be “in the spirit of the DOCA”.

30    Taking into account the communications sent by Mr Prentice to Mr Slevin and to shareholders, Mr Bibi’s unchallenged evidence that many of the statements in these communications were incorrect, and that Mr Prentice admitted that he swore an affidavit knowing that its content was false, I regard Mr Prentice as an unreliable witness. I also observed that Mr Prentice gave vague and evasive answers during cross-examination. To the extent that any submission was made by counsel for Agripower and Agrisilicon which depended on the uncorroborated evidence of Mr Prentice, other than any evidence which was against his interest, no weight was attached to it for these reasons.

31    In the circumstances, it is not in the public interest or the best interests of either Agripower or its creditors for Mr Prentice (in particular) to continue to exert any control over Agripower, or to have him seek to entice further investment in Agripower from unwitting third parties.

TERMINATION OF DOCA

32    The inquiry under s 445D of the Corporations Act involves two stages: first, whether a ground in s 445D(1) is established; and second, if so, whether, as a matter of discretion, the deed should be terminated on that ground: see Decon Australia Pty Ltd v TFM Epping Land Pty Ltd [2022] FCAFC 54 (Yates, O’Callaghan and Halley JJ) at [144].

33    AAOL relies on the grounds in each of ss 445D(1)(c), (f) and (g).

34    For the following reasons, I was satisfied that AAOL has established the first stage of the inquiry on the basis of the ground in s 445D(1)(c) or, alternatively, s 445D(1)(g). It is therefore unnecessary, and I do not propose, to consider the ground in s 445D(1)(f).

Section 445D(1)(c) — omission

35    A deed of company arrangement can be set aside under s 445D(1)(c) where there was an omission in a document that accompanied a notice of the meeting at which the resolution to execute the deed was passed, and that omission can reasonably be expected to have been material to creditors in deciding whether to vote in favour of the deed: see Sino Group International Ltd v Toddler Kindy Gymbaroo Pty Ltd (2023) 168 ACSR 311; [2023] FCAFC 110 (Farrell, Cheeseman and Feutrill JJ) at [62]. In that case, the Full Court also observed that the test of materiality is objective.

36    On page 5 of the Report, the Administrators reported that the operations of the Group are “still in the development phase” and that it has “generated minimal revenue”, being “highly reliant on capital raising”. On page 7, the Administrators estimated the assets of Agripower as being $13,000 (comprised of cash at bank) with total liabilities of over $321 million. It was made plain in the Report at page 8 that there was no valuation of the Group’s mining tenements and associated interests provided in the Report.

37    The Administrators recommended an adjournment of the meeting, stating that:

While the DOCA may compare favourably to liquidation based upon the information made available during the period of the Administration, the absence of a current independent valuation of the mining tenements and the ongoing questions as to the financial position of the Company and the Group means creditors cannot meaningfully assess comparative outcomes at this time.

Accordingly, an adjournment is recommended to enable the Administrator [sic] to provide a properly informed recommendation to creditors in order that they may make an informed decision as to the future of the Company.

38    At page 12, the Report referred to accumulated losses of over $245,000,000 as at FYE 2025. The Report also stated at page 13 that the “Company’s failure can also be attributed to its inability to raise further capital in the short term”.

39    At page 49 of the Report, the Administrators again recommended an adjournment stating that:

Having regard to the current uncertainty surrounding the value of the Group’s mining tenements and associated rights, and the absence of any independent valuation or updated technical report, it is not presently possible to accurately assess and compare the expected outcomes for creditors under the proposed DOCA and a liquidation scenario.

40    Mr Ross was cross-examined at the hearing. However, the opinions expressed in the Report (and the second creditors’ meeting) were not challenged by counsel for Agripower and Agrisilicon.

41    In light of the opinions of the Administrators and assessed objectively, information about the value of the Group’s mining tenements and associated rights is information of a kind that can reasonably be expected to have been material to creditors in deciding whether to vote in favour of executing a deed of company arrangement, as it was relevant to the assessment of the expected outcomes for creditors under the proposed DOCA and a liquidation scenario and, had that information been available, it might have affected the outcome.

42    The lack of transparency about the financial position of Agripower at the second creditors’ meeting was emphasised by evidence adduced by Agripower itself in this proceeding. By his affidavit dated 18 May 2026, Mr Prentice deposed that Agripower is “now raising approximately USD$60,000,000 through an equity raise for capital works and working capital in Australia [and] USD$300,000,000 through an equity and debt raise in Saudi Arabia”. The extent of such capital raising was also adverted to in an email from Mr Prentice to shareholders dated 29 October 2025 which referred to many detailed discussions with potential investors over the “past nine months” and which stated that “[i]f everything proceeds Agripower are looking at over US$260 million of capex required which would be funded by debt and equity from major Saudi Arabia investment funds”.

43    It will be recalled that similar statements about promising dealings with investors had been made to Mr Bibi in 2022 and to Mr Slevin in 2023 and 2024.

44    As already noted, the Report cited the “Company’s failure” as being attributable in part to its inability to raise further capital in the short term. However, no mention is made in the Report of capital raising to the extent referred to in either Mr Prentice’s email dated 29 October 2025 (sent only days after the second creditors’ meeting) or his affidavit. There was also an inquiry at the second creditors’ meeting about the chances of future funding; however, the creditors were not informed about the capital raising which had been undertaken by Agripower or the proposed extent of that capital raising. Notably, Mr Prentice attended this meeting but said nothing in response to the query.

45    In these circumstances and assessed objectively, information about the ability or otherwise of Agripower to raise capital (and the extent of capital which it had been seeking to raise) is information of a kind that can reasonably be expected to have been material to creditors in deciding whether to vote in favour of executing a deed of company arrangement. This is especially in circumstances where the overall tenor of the Report was that the Group relies upon external fundraising to be able to continue as a going concern.

46    That Mr Prentice had (ostensibly) been discussing a significant investment with major Saudi Arabia investment funds during the nine months before the month in which the second creditors’ meeting was held was information which was relevant to the assessment of the expected outcomes for creditors under the proposed DOCA and a liquidation scenario and, had that information been available, it might have affected the outcome. This constituted a further omission in the Report.

47    For these reasons, I was satisfied that there was at least one, if not two, omissions within the meaning of s 445D(1)(c) of the Corporations Act. While other omissions were relied upon by AAOL, it is not necessary to address these in light of the conclusions reached above.

Section 445D(1)(g) — some other reason

48    A deed of company arrangement can be set aside under s 445D(1)(g) “for some other reason”.

49    As Campbell J observed in Bidald Consulting Pty Ltd v Miles Special Builders Pty Ltd (2005) 226 ALR 510; [2005] NSWSC 1235 at [261], these words “are very broad, and should be applied in a way consistent with the policy of the Corporations Act, and other public policies to which the law gives effect”.

50    It is common ground that the DOCA has the effect of avoiding a liquidator’s investigations into various potential claims.

51    In this regard, the Administrators identified in the Report that, in their view:

(1)    the directors of Agripower may be liable for insolvent trading, with the maximum insolvent trading claim being worth approximately $27,759,829. Whilst the Administrators refer to the possibility of defences to such a claim, they were not aware, as at the date of the Report, of any statutory defences which the directors may call upon, although they observed that the directors have strenuously denied that Agripower and the Agripower Group have traded whilst insolvent;

(2)    Blackbrook Nominees Pty Ltd and PFTJ Pty Ltd - each of which is an Excluded Creditor and has Mr Prentice as a director - may be liable in the amounts of $313,542 and $2,663,536 respectively in respect of uncommercial and/or unreasonable director-related transactions. Notably, there did not appear to the Administrators to be any formal agreement between PFTJ Pty Ltd and Agripower to substantiate the payments to that company, and several of those payments are in a round sum (e.g., $90,000, $150,000), suggesting potential ad hoc payments rather than payments made in accordance with a structured contractual agreement; and

(3)    the ATO may be liable for the receipt of payments to reduce Agripower’s GST group liability which amount to unfair preferences in the sum of approximately $356,331.

52    The Administrators sought to explain the prospect of a recovery if any such proceedings were commenced in their Report. They concluded that, on a high case, the total recovery was approximately $6,027,840, noting that such a recovery is expected to be minimal as compared with total creditor claims of approximately $321 million.

53    However, that conclusion was, of course, based on the information which they had managed to obtain. For example, one of the directors had not submitted a completed declaration of his personal financial position to the Administrators.

54    In addition to the liquidator claims set out above, the Administrators were also of the view that the directors of Agripower may have contravened their duties pursuant to ss 180 to 183 of the Corporations Act by reason of matters set out in the Report such as:

(1)    poor strategic management of business, including providing loans to related entities without maintaining adequate documentation in respect of the terms of the loans;

(2)    failing to make sufficient provisions to meet statutory liabilities due to the ATO and defaulting on a number of payment plans entered into with the ATO in respect of statutory liabilities and superannuation debts;

(3)    failing to pay Agripower’s debts as and when they fall due, including making interest payments to convertible note holders;

(4)    failing to hold Annual General Meetings as required by the Corporations Act;

(5)    failing to maintain adequate board minutes, solvency assessments and governance records to evidence informed decision-making; and

(6)    possible misleading or deceptive conduct in communications with investors and creditors, including inaccurate representations of asset ownership, project valuations and convertible-note terms.

55    It is contrary to the public interest that none of these prospective claims are investigated, particularly in circumstances where:

(1)    Mr Prentice stands to benefit if the DOCA shields him from scrutiny;

(2)    the contribution amount of AU$460,000 is de minimis in relative terms to the AU$321 million (approx.) in creditor claims. That proposition is fortified in circumstances where the funds have been sourced from within the Agripower Group, rather than a cash injection from a third party;

(3)    third parties should not be exposed to a company trading with poor corporate governance;

(4)    AAOL has put forward funds for investigations should a liquidator be appointed, and is willing to top up the funding if requested, subject to appropriate documentation and necessary internal (credit) approvals.

56    For these reasons, I was persuaded that the DOCA should be terminated for some other reason pursuant to s 445D(1)(g) of the Corporations Act. While other reasons were relied upon by AAOL, it is not necessary to address these in light of this conclusion.

Discretion to terminate

57    For the following reasons, I exercised my discretion to terminate the DOCA.

58    First, although the creditors voted to enter into the DOCA and noting that they are generally taken to be in a better position to judge what is in their best interests than the Court, the creditors were not provided with sufficient information before voting for the reasons explained above. That omitted information was material and would likely have had an influence on the manner in which at least some of these creditors voted.

59    Second, the minutes of the meeting reveal that a concern was raised that ADM would appoint a receiver if the meeting was adjourned. This no doubt placed pressure on the creditors to reject the adjournment which had been recommended by the Administrators. However, while it may be accepted that ADM might take steps to appoint a receiver and manager if the DOCA was terminated, ADM can take such steps even if the DOCA is not terminated, as its debt is due and payable now. Importantly, a liquidator can undertake investigations and advance claims such as for insolvent trading regardless of such an appointment.

60    Third, whilst a number of creditors supported the DOCA, a number of those are related parties. Other creditors did not support the DOCA or abstained. Another significant unsecured creditor (namely Halwa Capital Limited) wrote to the Administrators on 9 June 2026 advising that it supported the application to terminate the DOCA on the basis that “effect cannot be given to the DOCA without injustice to [Halwa] or alternatively, the DOCA is oppressive or unfairly prejudicial to, or unfairly discriminatory against, [Halwa]”.

61    Fourth, the creditors will be better off in a liquidation, as will Agripower itself, because the company will no longer be under the control of Mr Prentice, who has demonstrated that he is not a fit person to act as its director. Further, a liquidator will be able to undertake investigations into insolvent trading and other claims, which investigations have been funded in part by AAOL and with the real prospect of a funding agreement being entered between AAOL and the proposed liquidators. Any recoveries in respect of such claims will be available for the general body of unsecured creditors.

62    Fifth, the continuation of the DOCA would have the effect of eroding commercial morality for the reasons explained above.

63    Sixth, the effect of the DOCA permits a company to continue to trade in circumstances where it is likely to be insolvent, which is contrary to the public interest. That Agripower is likely to be insolvent post-DOCA is evident from the fact that:

(1)    the ADM debt is due and payable. Mr Prentice’s evidence is that Agripower “owes” ADM approximately US$105 million. There is no evidence as to the steps being taken to refinance, or otherwise extend the maturity date for, that debt upon effectuation of the DOCA;

(2)    Agripower requires a significant capital injection which it is yet to achieve in circumstances where the Agripower Group is highly reliant on such capital to continue to operate, and it has struggled with its capital raising over several years. Mr Prentice’s vague evidence as to his communications with prospective investors does not provide any cogent basis upon which to conclude that such external capital investment is imminent, forthcoming or sufficient to pay the ADM debt or to fund the continued operations of the Group, especially as Mr Prentice is not a reliable witness.

64    Finally, I am satisfied that the matters stated above which provide grounds for termination of the DOCA under s 445D of the Corporations Act also warrant the exercise of the Court’s discretion to terminate the DOCA.

APPOINTMENT OF MR HOLLAND AND MR PRESTON AS LIQUIDATORS

65    For the following reasons, I exercised my discretion under s 447A of the Corporations Act to operate such that Messrs Holland and Preston would be appointed as joint and several liquidators of Agripower upon the termination of the DOCA. This decision should not be understood as any criticism of the Administrators.

66    First, Mr Holland is based in Queensland, where the Agripower Group’s key assets are located.

67    Second, and relatedly, Messrs Holland and Preston have extensive experience acting as external controllers of companies with mining assets located in Queensland. In particular, Mr Holland has experience in arranging the sale and transfer of resource authorities, including mining leases, mineral development licenses and exploration permits for non-coal minerals, and is familiar with the process for transferring a resource authority from one party to another, including the requirements of the relevant Queensland government agencies involved in the transfer process and dealing with native title obligations.

68    Third, Agripower and Agrisilicon did not make any submissions as to why Messrs Holland and Preston should not be appointed as joint and several liquidators of Agripower. Similarly, the Administrators neither consent to nor oppose their appointment.

Associate:

Dated:    10 June 2026

SCHEDULE OF PARTIES