Federal Court of Australia

Kelly, in the matter of Liberty Bell Bay Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed) [2026] FCA 823

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to section 447A of the Corporations Act 2001 (Cth), Part 5.3A of the Corporations Act operates such that:

(a)    the liabilities of the First Plaintiffs (Administrators) under section 443A of the Corporations Act for any amounts owed by them under:

(i)    the deed entitled “Administrator Facility Deed” between the Administrators and the Second Plaintiff (Company) dated 28 April 2026;

(ii)    the deed entitled “Administrator Facility (Amendment and Restatement) Deed” between the Administrators, the Company and Travis Adrian Anderson and Salvatore Algeri in their capacity as joint and several receivers and managers of certain property of the Company (State Receivers) dated 1 June 2026; and

(iii)    the deed entitled “Administrator Facility (Amendment and Restatement) Deed” between the Administrators, the Company and the State Receivers dated 22 June 2026,

(together, the Receiver Facility),

are limited to the Pari Passu Share (as that term is defined in the Receiver Facility) in respect of the Receiver Facility; and

(b)    if the Pari Passu Share applicable to the Receiver Facility is insufficient to meet any amount for which the Administrators may be liable under or in connection with the Receiver Facility, the Administrators will not be personally liable under section 443A of the Corporations Act to repay the amount of any such insufficiency.

2.    Pursuant to section 447A of the Corporations Act, Part 5.3A of the Corporations Act operates such that the Administrators are not liable for or in respect of any debt incurred by the Company or the State Receivers under the facility agreement dated 18 August 2025 between the Company and the State (or any amendment or variation thereof).

3.    Pursuant to section 447A of the Corporations Act, Part 5.3A of the Corporations Act operates such that:

(a)    the liabilities of the Administrators under section 443A of the Corporations Act for any amounts owed by them under the deed entitled “Administration Funding Deed” between the Administrators, the Company and Adroit Capital Group Pty Ltd ACN 656 086 976 (Adroit) dated 1 June 2026 (the Adroit Facility), are limited to the Pari Passu Share (as that term is defined in the Adroit Facility) in respect of the Adroit Facility; and

(b)    if the Pari Passu Share applicable to the Adroit Facility is insufficient to meet any amount for which the Administrators may be liable under or in connection with the Adroit Facility, the Administrators will not be personally liable under section 443A of the Corporations Act to repay the amount of any such insufficiency.

4.    Pursuant to section 447A of the Corporations Act, Part 5.3A of the Corporations Act operates such that:

(a)    the liabilities of the Administrators under section 443A of the Corporations Act for any amounts owed by them under:

(i)    the deed entitled “Facility Agreement – Voluntary Administrators of Liberty Bell Bay Pty Ltd (receivers and managers appointed) (administrators appointed)” between the Administrators, the Company and White Oak Commercial Finance Europe (Non-Levered) Limited (White Oak) dated 27 March 2026;

(ii)    the document entitled “Facility Agreement – Voluntary administrators of Liberty Bell Bay Pty Ltd (receivers and managers appointed) (administrators appointed) – Amendment letter” between the Administrators, the Company and White Oak dated 1 June 2026; and

(iii)    the letter with the subject line commencing “Funding Request | Facility Agreement” between the Administrators, the Company and White Oak dated 18 June 2026,

(together, the White Oak Facility),

are limited to the Pari Passu Share (as that term is defined in the White Oak Facility) in respect of the White Oak Facility; and

(b)    if the Pari Passu Share applicable to the White Oak Facility is insufficient to meet any amount for which the Administrators may be liable under or in connection with the White Oak Facility, the Administrators will not be personally liable under section 443A of the Corporations Act to repay the amount of any such insufficiency.

5.    On the date of these Orders or as soon as reasonably practicable thereafter, the Administrators must take all reasonable steps to cause notice of these Orders to be given to:

(a)    the 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 these 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 these 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 5(a)(i) above), notifying each such creditor, via post, of the making of these Orders and providing a link to the Creditor Portal where the creditor may download these Orders and the Originating Process; and

(iii)    placing scanned, sealed copies of these Orders and the Originating Process on the Creditor Portal;

(b)    White Oak;

(c)    the State Receivers;

(d)    the State of Tasmania (acting through the Minister administering the Tasmanian Development Act 1983 (Tas) and represented by the Department of State Growth);

(e)    Adroit;

(f)    Global Loan Agency Services Australia Nominees Pty Limited ACN 608 945 008;

(g)    Boral Limited ACN 008 421 761; and

(h)    AMS Instrumentation & Calibration Pty Ltd ACN 006 160 774.

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

(a)    Confidential Exhibit MJK-2 to the affidavit of Morgan John Kelly affirmed on 24 June 2026 (Kelly Affidavit);

(b)    paragraphs 29, 33, 38, 44, 52, 76–77 and 81 of the Kelly Affidavit; and

(c)    the written submissions relied on by the Plaintiffs in this application to the extent they refer to the content of Confidential Exhibit MJK-2 to the Kelly Affidavit or paragraphs 29, 33, 38, 44, 52, 76–77 or 81 of the Kelly Affidavit,

are not to be disclosed or published other than to the Court, the parties and their legal representatives, or with the approval of the Plaintiffs.

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

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

9.    These Orders be entered forthwith.

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

REASONS FOR JUDGMENT

YOUNAN J:

INTRODUCTION

1    By urgent originating process filed on 25 June 2026, the first plaintiffs, the joint and several administrators (Administrators) and the second plaintiff, the entity under administration (Liberty Bell Bay or the Company), seek orders related to an ongoing sale process in respect of the Company’s assets and business as a going concern. On the same day, the plaintiffs filed the affidavit of Morgan John Kelly affirmed on 24 June 2026 (Kelly Affidavit), in support of the application.

2    The Company owns and operates a manganese alloy smelter in Bell Bay, Tasmania. As of 27 March 2026, the Company had 216 employees.

3    On 29 January 2026, the State of Tasmania appointed Travis Anderson and Salvatore Algeri of Deloitte as receivers and managers of ore in the Company’s possession (State Receivers). Subsequently, on 23 March 2026, the Administrators were appointed as joint and several administrators of the Company.

4    Since the commencement of administration, the Administrators have undertaken a sale and recapitalisation process in relation to the Company’s business or assets. Mr Kelly deposes that it is the Administrators’ view that a sale of the Company’s business or assets is in the best interests of creditors, and the only realistic alternative is for the Company to enter liquidation (resulting in a sub-optimal return for creditors). As such, the Administrators have entered into funding agreements with lenders to maintain the Company’s business as a going concern, facilitate a sale of the Company’s business and assets, and complete the administration.

5    On 30 March 2026, in a related proceeding, Justice Lee made orders pursuant to s 447A(1) of the Corporations Act 2001 (Cth) and s 90‑15 of the Insolvency Practice Schedule (Corporations), limiting the Administrators’ personal liability in respect of the White Oak Facility (a facility agreement between the Administrators, the Company and White Oak Commercial Finance Europe (Non-Levered) Limited dated 27 March 2026)) under s 443A(1) of the Corporations Act.

6    Since then, the Administrators have entered further facilities (described below), and amended the White Oak Facility, which has prompted the plaintiffs’ application. This has been due, in part, to one of the lenders failing to advance funds as contemplated by the relevant facility, and a need for the Administrators to obtain further funding.

THE SALE PROCESS

7    In the course of the sale process, the Administrators selected a consortium consisting of Adroit Capital Group Pty Ltd, White Oak Global Advisors LLC and OM Holdings Limited as the preferred bidder. Mr Kelly deposes that Adroit agreed to meet the non-employee related costs of the business by providing funding to support the Company’s ongoing operations, by way of the Adroit Facility (described below).

8    Mr Kelly deposes that the Adroit Facility would have provided the Administrators with $2,500,000 to fund the administration. However, in alleged breach of the Adroit Facility, Adroit made only the first loan advance of $500,000. Since then, the Administrators have sought to continue the sale process with a new consortium. That process is ongoing.

9    Throughout the sale process, the Administrators entered into various facilities to maintain the Company’s business as a going concern. The relevant facilities are as follows:

(1)    The Receiver Facility, comprising three deeds: the “Administrator Facility Deed” between the Administrators and the Company dated 28 April 2026; the “Administrator Facility (Amendment and Restatement) Deed” between the Administrators, the Company and the State Receivers dated 1 June 2026; and the “Administrator Facility (Amendment and Restatement) Deed” between the Administrators, the Company and the State Receivers dated 22 June 2026.

(2)    The State Facility Agreement, comprising a facility agreement dated 18 August 2025 between the Company and the State (or any amendment or variation thereof).

(3)    The Adroit Facility, comprising a deed titled “Administration Funding Deed” between the Administrators, the Company and Adroit dated 1 June 2026.

(4)    The White Oak Facility, comprising: the “Facility Agreement – Voluntary Administrators of Liberty Bell Bay Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed)” between the Administrators, the Company and White Oak dated 27 March 2026; the “Facility Agreement – Voluntary administrators of Liberty Bell Bay Pty Ltd (receivers and managers appointed) (administrators appointed) – Amendment letter” between the Administrators, the Company and White Oak dated 1 June 2026; and the letter with the subject line commencing “Funding Request | Facility Agreement” from White Oak to the Administrators dated 18 June 2026.

LIMITATION OF THE ADMINISTRATORS’ LIABILITY UNDER THE FACILITIES

10    In respect of the Receiver Facility, Adroit Facility and White Oak Facility, the plaintiffs seek orders pursuant to s 447A of the Corporations Act that Part 5.3A of the Corporations Act operates such that:

(1)    the liabilities of the Administrators under s 443A of the Corporations Act in respect of each of the facilities be limited to the “Pari Passu Share” (as that term is defined in the relevant facility); and

(2)    if the Pari Passu Share is insufficient to meet any amount for which the Administrators may be liable (under or in connection with the relevant facility), for the Administrators to not be held personally liable under s 443A of the Corporations Act.

11    In respect of the State Facility Agreement, the plaintiffs seek an order pursuant to s 447A of the Corporations Act that Part 5.3A of the Corporations Act operates such that the Administrators are not liable for, or in respect of, any debt incurred by the Company or the State Receivers under that facility.

Legal principles

12    Section 447A of the Corporations Act empowers the Court to make orders limiting an administrator’s personal liability under s 443A(1): Korda, in the matter of Ten Network Holdings Ltd (Administrators Appointed) (Receivers and Managers Appointed) [2017] FCA 1144 at [40] (Markovic J).

13    The relevant principles are summarised as follows (Mentha, in the matter of Griffin Coal Mining Company Pty Ltd (Administrators Appointed) [2010] FCA 1469; 82 ACSR 142 at [30] (Gilmour J)):

(1)    First, the proposed arrangements ought to be in the interests of the company’s creditors and consistent with the objectives of Part 5.3A of the Corporations Act.

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

(3)    Third, the creditors of the company ought to not be prejudiced or disadvantaged by the types of orders sought and should stand to benefit from the administrators entering into the arrangement.

(4)    Fourth, notice should be given to those who may be affected by the order.

14    As stated by Gilmour J, most of the cases where the courts have exercised its power under s 447A of the Corporations Act to vary the administrator’s personal liability under s 443A have involved administrators borrowing funds during the period of the administration (Griffin Coal at [31]). The rationale for such orders is that administrators should not be expected to expose themselves to substantial personal liabilities: Algeri (Administrator), in the matter of Murray & Roberts Pty Ltd (Administrators Appointed) [2022] FCA 1506 at [47] (Banks-Smith J); Preston, in the matter of Hughes Drilling Limited (Administrators Appointed) [2016] FCA 1175 at [18] (Yates J). Making such orders permits the administrator to carry on commercial operations uninfluenced by possible concerns of personal liability and instead focus upon the best interests of the company’s creditors: Secatore, in the matter of Fletcher Jones and Staff Pty Ltd (Administrators Appointed) [2011] FCA 1493 at [29] (Gordon J).

15    The plaintiffs submit that such orders are made even where the relevant lender has expressly agreed to have recourse only to the assets of the company to which the administrator’s right of indemnity extends, and further, that such agreement weighs heavily in favour of making such an order: Park, In the matter of IG Power (Callide) Pty Ltd (Administrators Appointed) (No 5) [2025] FCA 135 at [19] (Derrington J).

The Facilities

16    Each of the Receiver Facility, Adroit Facility and White Oak Facility contain substantively equivalent provisions by which the parties acknowledge and agree that amounts owing by the Administrators under each of these facilities are amounts in respect of which the Administrators are entitled to be indemnified out of the Company’s property under s 443D of the Corporations Act, will only be paid out of “Available Property”, or pari passu in accordance with the relevant “Pari Passu Share” where there is insufficient “Available Property” to satisfy those liabilities.

17    Further, each of the Receiver Facility, Adroit Facility and White Oak Facility contain equivalent provisions by which the lenders (and where relevant, State Receivers) agree and consent to the Administrators seeking orders pursuant to s 447A of the Corporations Act limiting their personal liability to the extent of their indemnity under s 443D of the Corporations Act.

Receiver Facility

18    Mr Kelly deposes that the Receiver Facility was for the purpose of meeting employee costs of the Company’s workforce. As a result of the advances under the Receiver Facility, as of 24 June 2026, all payroll costs of employees of the Company have been fully paid. The plaintiffs submit that without entering into the Receiver Facility, the Administrators would not have had funds sufficient to meet the Company’s employee-related costs during the administration.

19    The plaintiffs submit that entry into the Receiver Facility was in the best interests of the Company’s creditors, and consistent with the objectives of Part 5.3A of the Corporations Act. This was necessary to keep the workforce employed, and maintain the Company’s business as a going concern (so that the Administrators could pursue the sale of the Company’s business, for the benefit of creditors).

State Facility Agreement

20    The plaintiffs submit that the State Facility Agreement was entered into in August 2025, prior to the Administrator’s appointment. In circumstances where the Administrators are not party to the State Facility Agreement, and did not cause the Company to occur any liabilities under it, the plaintiffs submit that it is appropriate to relieve them of the risk of any personal liability.

21    Mr Kelly deposes that the effect of the State Facility Agreement and the Receiver Facility is that the State would advance funds to the State Receivers (under the State Facility Agreement), and such funds would be on-lent to the Administrators (under the Receiver Facility). The plaintiffs submit that the Administrators’ use of the proceeds was in the interests of creditors (as explained above, in relation to the Receiver Facility).

22    Noting that certain aspects of the State Facility Agreement are subject to confidentiality orders, it is sufficient to note that the orders sought are not inconsistent with that Agreement.

Adroit Facility

23    The plaintiffs submit that the Administrators entered into the Adroit Facility in the expectation that it would meet the non-employee costs of the administration, without which, the Administrators would not have been able to conduct the sale and recapitalisation process. The plaintiffs submit that it was not foreseeable, at the time of entering into the Adroit Facility, that Adroit would advance only $500,000 of the $2,500,000; and further, that entering into the facility was the best option available to the Administrators at that time.

24    The plaintiffs submit that making an order limiting the Administrators’ liability under the Adroit Facility would promote the objectives of Part 5.3A of the Corporations Act, as Adroit provided $500,000 at a time when additional funding was required to continue the administration (including the sale and recapitalisation process), ultimately serving the interests of creditors (although not to the extent expected). The plaintiffs raised concerns that without such an order, the Administrators may be exposed to personal liability for circumstances beyond their control, notwithstanding their good faith attempts to advance the interests of creditors.

White Oak Facility

25    The orders of Justice Lee made on 30 March 2026 limited the Administrators’ liability under the White Oak Facility (as it then was). At that stage, the concept of the “Pari Passu Share” had not been inserted into the deed(s). The purpose and effect of the orders sought by the plaintiffs is to accommodate subsequent developments.

26    The plaintiffs submit that the variation of the White Oak Facility (which increased the amount of funding advanced under the facility) was in the interests of creditors, as without the additional funding, the Administrators would have been unfunded in respect of non-employee related costs of the administration from 1 June 2026 and employee-related costs from 12 June 2026. In those circumstances, Administrators would have ceased to operate the Company as a going concern from about 15 June 2026, which would likely have resulted in the Company entering liquidation.

NOTICE TO CREDITORS

27    The plaintiffs propose, by way of order 5, that the Administrators be required promptly to take all reasonable steps to cause notice of the orders to be given to the creditors of the Company.

28    In oral submissions, counsel for the plaintiffs indicated that the originating process had been served on the creditors of the Company the day before the hearing on 24 June 2026. Further, in customary fashion, the orders enable any person with sufficient interest to apply to vary or discharge the orders.

CONFIDENTIALITY ORDERS

29    The Administrators also seek a suppression order pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act) in respect of certain paragraphs of the Kelly Affidavit; confidential exhibit MJK-2 to the Kelly Affidavit; and the written submissions of the plaintiffs to the extent that they refer to the suppressed paragraphs of the Kelly Affidavit and the confidential exhibit. The suppression order is sought, including in relation to the relevant facility agreements, on the ground that the order is necessary to prevent prejudice to the proper administration of justice (s 37AG(1)(a) of the FCA Act).

30    I am satisfied that such an order is appropriate, given the commercially-sensitive nature of the information contained in the agreements; the fact that the sale process is ongoing; and that the order is limited in time, viz., until the end of the administration or until further order of the Court.

CONCLUSION

31    On the evidence, I am satisfied that it is appropriate to make orders limiting the Administrators’ personal liability under s 443A(1) of the Corporations Act.

32    First, the purpose of the facilities or funding arrangements is to enable the Company’s business to continue to trade, including for the purpose of meeting employee costs, and more generally, to continue the administration (including the sale and recapitalisation process). The evidence is that the absence of additional funding would have caused the Company to cease operations from about 15 June 2026.

33    Second, these arrangements ultimately serve the interests of the Company’s creditors, and in facilitating the continued existence of the Company, is consistent with the objectives of Part 5.3A of the Corporations Act.

34    Third, the Administrators should not be exposed to any or substantial personal liabilities arising from entering into these funding arrangements. This is consistent with the terms of the facilities and, therefore, the expectations of those parties. It also permits the Administrators to carry on the Company’s operations uninfluenced by possible concerns of personal liability and instead focus upon the best interests of the Company’s creditors.

35    In relation to the Adroit Facility, there is no evidence that Adroit’s default was foreseen by the Administrators, or foreseeable. There is evidence to suggest that entering the facility was the best option available to the Administrators at that time. Furthermore, the Company benefited from the partial advancement of funds at a time when additional funding was required to continue the administration.

36    Fourth, the creditors of the Company should stand to benefit from the Administrators entering into these funding arrangements, and thereby not be disadvantaged by the orders sought.

37    Finally, in the event of any disadvantage, notice of the orders sought has been given to the Company’s creditors, and will be given of the orders made, with liberty to apply to vary or discharge those orders.

38    Accordingly, the orders sought by the plaintiffs will be made, with some variation limiting the duration of the confidentiality orders.

Associate:

Dated:    26 June 2026