Federal Court of Australia

Mableson, in the matter of TasFoods Limited (Subject to Deed of Company Arrangement) [2026] FCA 1416

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 9.08 of the Federal Court Rules 2011 (Cth), Sarah Emily Seeckts be removed as a first plaintiff.

2.    The names of the second to fourth plaintiffs be amended to reflect the entry into a deed of company arrangement and appointment of Deed Administrators.

3.    Leave be granted to the plaintiffs to file an amended interlocutory process.

4.    Pursuant to s 447A of the Corporations Act 2001 (Cth) (Act), Pt 5.3A of the Act is to operate in relation to the second to fourth plaintiffs as if the creditors of the second to fourth plaintiffs varied the deed of company arrangement entered into by the first to fourth plaintiffs and RAMP Tasmania Poultry Pty Ltd (Proponent) on 29 May 2026 (DOCA) by amending the definition of 'New Shareholder' at cl 1.1 of the DOCA to read as follows:

'New Shareholder means the Proponent and/or another person(s) or entity(ies) notified by the Proponent to the Administrators or Deed Administrators no later than 17 September 2026'.

5.    Pursuant to s 444GA(1)(b) of the Act, the first plaintiffs (Deed Administrators) have leave to transfer all of the issued shares in TasFoods (Shares) from its members as defined by the Act (together, the Members and each, a Member) to the Proponent and/or Tasmanian Poultry Processors Pty Ltd.

6.    Pursuant to s 447A(1) of the Act and s 90-15 of the Insolvency Practice Schedule (Corporations), the Deed Administrators may:

(a)    execute, on behalf of the Members, share transfer forms and any other documents ancillary or incidental to effect the transfer of the Shares referred to in order 5; and

(b)    enter, or procure the entry of, the name of the Proponent and/or Tasmanian Poultry Processors Pty Ltd into the TasFoods share register of members in respect of all Shares transferred to the Proponent and/or Tasmanian Poultry Processors Pty Ltd in accordance with order 5.

7.    By 4.00 pm AEST on 25 September 2026, the Deed Administrators are to provide notice of these orders to:

(a)    all Members and all creditors of the second to fourth plaintiffs (together, the Creditors and each, a Creditor):

(i)    where the Deed Administrators have an email address for each such Member and Creditor, by email;

(ii)    where the Deed Administrators do not have an email address for each such Member and Creditor, by post; and

(iii)    by publication on the KPMG website; and

(b)    the Australian Securities and Investments Commission.

8.    The plaintiffs' costs of and incidental to this application be costs in the deed administration of the second to fourth plaintiffs.

9.    There be liberty for any Member or Creditor to apply before 4.00 pm AEST on 29 September 2026 to set aside or vary any of these orders.

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

This order has been varied in accordance with Rules 39.05(g) and 39.05(h) of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

VANDONGEN J:

1    The first plaintiffs are the deed administrators of the second to fourth plaintiffs, being TasFoods Limited (TasFoods), Nichols Hatchery Pty Ltd (Hatchery) and Nichols Poultry Pty Ltd (Poultry), each of which are subject to a deed of company arrangement. By an amended interlocutory process, the deed administrators sought leave, pursuant to s 444GA(1)(b) of the Corporations Act 2001 (Cth), to transfer all of the issued shares in TasFoods from its members to the proponent of the deed of company arrangement (DOCA), RAMP Tasmania Poultry Pty Ltd (RAMP) and/or its nominee, together with other related and ancillary orders (interlocutory process).

2    At the conclusion of the hearing of the interlocutory process, I made various orders that largely reflected the orders sought by the deed administrators. Following are my reasons for making those orders.

Relevant background

3    The following background to the interlocutory process is drawn from three affidavits affirmed on 25 August, 15 September and 23 September 2026, respectively, by Timothy David Mableson, who is one of the deed administrators.

4    The deed administrators were appointed in March 2026, pursuant to s 436A of the Corporations Act as joint and several administrators of several companies within a group of companies. That group of companies included the ultimate holding company, TasFoods, a public company listed on the Australian Securities Exchange; Poultry, which was the largest meat poultry producer in Tasmania; and Hatchery, which operated as a breeder and hatchery, and supported Poultry by supplying it with chicks.

5    The group of companies, of which TasFoods, Poultry and Hatchery (Companies) were a part, suffered cash flow issues and financial underperformance, including by incurring consecutive net losses between 31 December 2022 and 31 December 2025. Ultimately, as the group's cash flow issues intensified and there were no viable recapitalisation or sale options available, the group decided that voluntary administration was appropriate. At that time, the Companies collectively had secured debts of approximately $4.77 million and unsecured debts of approximately $40.6 million, and they employed 172 full-time employees.

6    The administrators were of the view that the Companies were likely to have been insolvent from no later than 30 November 2025.

7    Following their appointment as administrators, the deed administrators commenced a process to recapitalise or sell the Companies' collective business. The administrators also separately offered the Companies' assets for sale. Ultimately, however, the administrators elected to proceed with the DOCA.

8    After the administrators recommended to creditors that they resolve to enter into the DOCA, it was executed on 29 May 2026. The DOCA provides for the acquisition by RAMP of the Companies' business and assets as a going concern. Employees will be kept on, and continuity of service will be recognised. RAMP is also required by the terms of the DOCA to make a payment of $6.5 million into a deed fund for distribution amongst creditors in accordance with a specified priority.

9    At the time the interlocutory process was filed, completion of the DOCA was subject to court approval being obtained under s 444GA(1)(b) of the Corporations Act for the transfer to RAMP of shares in TasFoods. However, on 17 September 2026 the solicitors acting for RAMP advised the solicitors acting for the deed administrators that RAMP intended nominating Tasmanian Poultry Processors Pty Ltd (Tasmanian Poultry) as an additional entity to which a portion of the shares in TasFoods were to be transferred.

10    The DOCA does not currently allow for the transfer of shares in TasFoods to Tasmanian Poultry. This is because RAMP did not, as it was required to do under the terms of the DOCA, notify the deed administrators by no later than the commencement date of the DOCA that Tasmanian Poultry was also to be a transferee of the shares in TasFoods. Because court approval under s 444GA(1)(b) must be obtained, or the requirement to obtain such approval must be waived by 1 October 2026 to avoid termination of the DOCA, the deed administrators were of the view that it would be impracticable to convene a meeting of creditors to resolve, pursuant to s 445A, to vary the DOCA to allow for the transfer of shares to Tasmanian Poultry. Accordingly, the deed administrators sought a further order under s 447A of the Corporations Act to the effect that the DOCA be varied to allow for RAMP's nomination of Tasmanian Poultry as a further transferee of shares in TasFoods.

11    Completion of the DOCA is also subject to the Australian Securities and Investments Commission (ASIC) first giving relief under s 655A of the Corporations Act of the need to obtain shareholder approval under s 606 and Item 7 of s 611. Mr Mableson expected that ASIC will issue 'in principle' relief before awaiting the Court's determination on the application for leave under s 444GA and then finalising its grant of relief under s 655A if that application were to be successful.

12    In his affidavit of 25 August 2026, Mr Mableson explained that the deed administrators have conducted an analysis of the estimated likely return to the Companies' creditors if the DOCA were to be implemented and completed when compared to the likely return were the Companies to be wound up. That analysis, which I accept, is relevantly to the effect that the members of TasFoods will receive no return under the DOCA as well as in a liquidation scenario. The deed administrators have also obtained an independent expert report from Grant Thornton in which an assessment was made of the value of the shares in TasFoods on a liquidation basis, and in the absence of the DOCA. That report was produced on the basis that the deed administrators intended to rely on it in support of its application for leave under s 444GA(1)(b).

13    The opinion expressed by the authors of the independent expert report is as follows:

Grant Thornton Corporate Finance has assessed the liquidation value of the issued shares in TasFoods as at 21 May 2026 to be NIL under both the low and high liquidation scenarios. In our opinion, the recoverable amount from realising the assets of the Company is insufficient to fund the full amount of the obligations of the Company in either scenario and hence there is no residual value for equity holders.

(emphasis added; bold in original)

14    The deed administrators gave notice to the members of TasFoods of their intention to make an application under s 444GA on 25 August 2026. The application was also served on the Companies' creditors on 9 September 2026. There has been no indication given that any member or creditor opposed the application, and only the deed administrators appeared at the hearing. It must be noted, however, that the deed administrators did not give notice to the members or creditors of their intention to seek an order to vary the DOCA under s 447A. In circumstances in which the deed administrators were given late notice of RAMP's nomination of Tasmanian Poultry as an additional transferee of the shares in TasFoods, the fact that such notice was not given is understandable. In the circumstances, this lack of notice can be adequately dealt with by giving members and creditors liberty to apply, within a short period of time, to set aside or vary the Court's orders.

15    Having summarised the relevant background to the interlocutory process, it is necessary to say something about the legislative provisions that are applicable.

The relevant legislative provisions and principles to be applied

16    Section 444GA of the Corporations Act provides that:

444GA Transfer of shares

(1)    The administrator of a deed of company arrangement may transfer shares in the company if the administrator has obtained:

(a)    he written consent of the owner of the shares; or

(b)    the leave of the Court.

(2)    A person is not entitled to oppose an application for leave under subsection (1) unless the person is:

(a)    a member of the company; or

(b)    a creditor of the company; or

(c)    any other interested person; or

(d)    ASIC.

(3)    The Court may only give leave under subsection (1) if it is satisfied that the transfer would not unfairly prejudice the interests of members of the company.

17    The critical issue for the purposes of s 444GA(1)(b) is the Court's assessment of whether the proposed share transfer by the administrator of a deed of company arrangement would bring about any unfair prejudice to the members of the company. As Stewart J observed in Freeman, in the matter of Regional Express Holdings Ltd (subject to deed of company arrangement) (No 7) [2025] FCA 1598 at [47], the applicable principles are well settled. Drawing on what his Honour said in that case at [48] to [57], those principles, insofar as are relevant in the circumstances of this case, may be summarised as follows:

(1)    The key consideration is that the Court must be satisfied that the proposed transfer would not unfairly prejudice the interests of members of the company. Whether a transfer is unfairly prejudicial is to be determined having regard to all the circumstances of the case as well as the policy of the legislation.

(2)    Even if the Court is satisfied that the proposed transfer would not be unfairly prejudicial, there is a residual discretion as to whether to grant leave to a deed administrator to transfer shares in the company, which discretion must be exercised having due regard to the object of Pt 5.3A of the Corporations Act as set out in s 435A.

(3)    The requirement that the transfer not unfairly prejudice shareholders is intended to direct the Court to consider the impact of a compulsory sale on shareholders where there may be some residual value in the company.

(4)    The question of whether shareholders hold any residual equity of value, for the purpose of assessing the existence and nature of any unfair prejudice, is determined by comparison with the position of the shareholders in a winding up, at least where that is the likely or necessary consequence of the transfer of shares not being approved. As a general proposition, if liquidation is the only realistic alternative to a proposed transfer of the shares, and the shares would have no value in a liquidation, then there is no unfair prejudice to the interests of members if leave is given pursuant to s 444GA(1)(b).

(5)    There is an evidentiary onus on the shareholders to raise any consideration telling against the exercise of the discretion. However, the mere fact that shares are to be transferred without compensation to shareholders is not sufficient, in itself, to establish unfair prejudice.

(6)    The ultimate onus of satisfying the Court that the discretion should be exercised is on the deed administrators.

18    As I have already said, the deed administrators also seek an order under s 447A(1) to vary the terms of the DOCA, as well as other orders under s 447A(1) and s 90-15 in Sch 2 of the Corporations Act (Insolvency Practice Schedule) to give effect to the share transfer for which they seek approval under s 444GA.

19    Section 447A(1) provides that the court may make such order as it thinks appropriate about how Pt 5.3A of the Corporations Act is to operate in relation to a particular company.

20    It is well-established that the Court has the power under s 447A(1) to make orders that have the effect of varying, amending or rectifying a deed of company arrangement: Kipoi Holdings Mauritius Limited v Kirman and Bauer as joint and several administrators of Tiger Resources Limited (Subject to Deed of Company Arrangement) [2021] WASCA 194 at [50]. As Owen J recently observed in Blundell, in the matter of Dyldam Developments Pty Ltd [2025] FCA 766 at [35]:

It is clear that courts have the power, under s 447A of the Corporations Act, 'to vary a deed of company arrangement or, more accurately, to cause Pt 5.3A to operate in relation to the subject company as if some provision of the deed were varied': Re Derwent Howard Media Pty Ltd [2011] NSWSC 1164 at [11]; see also Longley (deed administrator), in the matter of Dixon Advisory & Superannuation Services Pty Ltd (subject to a deed of company arrangement) [2024] FCA 70 at [49]. But, for reasons including the kinds of issues I have identified in the previous paragraph, 'the court should be reluctant to exercise this power (and thereby to deprive creditors of their role under s 445A) except in circumstances that are uncontentious, in the sense that no prejudice to creditors is involved': Derwent Howard Media at [12]; see also Dixon Advisory at [51]; Re Paradox Digital Ltd; ex parte Vincent Smith in his capacity as Deed Administrator [2001] WASC 182 at [16]-[18].

21    Orders in the nature of 'machinery orders' may also be made under s 447A to put into effect the transfer of shares for which leave has been granted under s 444GA, including orders permitting deed administrators to execute and lodge share transfer documents and to ensure the entry of the acquirer's name on the company's register of members: Park, in the matter of Collection House Limited (Subject to a Deed of Company Arrangement) [2022] FCA 1244 at [7].

22    Section 90-15(1) of the Insolvency Practice Schedule further provides that the Court may make such orders as it thinks fit in relation to the external administration of a company.

Should an order to vary the DOCA be made under s 447A(1)?

23    Before dealing with the deed administrator's application for leave to transfer the shares in TasFood under s 444GA(1)(b), it is logical to first consider whether an order should be made under s 447A(1) to vary the DOCA to allow for the shares to be transferred to RAMP and/or to Tasmanian Poultry were leave to be granted.

24    Ordinarily, a variation to a deed of company arrangement should be by resolution passed at a meeting of a company's creditors under s 445A. However, because RAMP only recently informed the deed administrators that some of the shares in TasFood are to be transferred to Tasmanian Poultry, it was not practical to convene a meeting of creditors.

25    Although the effect of making an order under s 447A(1) would be to deprive the creditors of their role under s 445A, the variation that was sought to be made to the DOCA does not involve any prejudice to the creditors. The DOCA contemplates the transfer of all of the shares in TasFoods. The variation sought to be made to the DOCA is concerned only with the identity of the entities to which those shares will be transferred were leave to be granted under s 444GA(1)(b).

Should leave be granted under s 444GA(1)(b)?

26    As I have already observed, in deciding whether to grant leave under s 444GA(1)(b) the critical issue is the Court's assessment of whether the relevant share transfer results in any 'unfair prejudice' to the members of the company, having regard to all the circumstances of the case and the policy of the legislation.

27    Based on the evidence before me, the Companies are clearly insolvent and, following a sale campaign conducted by the administrators, the DOCA is the best available option.

28    As I have already observed, it is a condition precedent to completion under the DOCA, as varied by the Court under s 447A(1), that the Court give leave to the deed administrators under s 444GA(1)(b) to transfer all of the shares in TasFoods to RAMP and/or to Tasmanian Poultry. If leave is not granted, the DOCA will not be effectuated and, if that occurs, the Companies will almost certainly be wound up in insolvency. If the Companies were to be wound up in insolvency the payment that RAMP is required to pay under the DOCA will not be available for distribution to creditors, and the return to creditors will be less.

29    Although the members of TasFoods would retain their shareholding if leave were not granted under s 444GA(1)(b), those shares would have no residual value. In that regard, I place particular weight on the opinion expressed by the independent expert, Grant Thornton, to the effect that the recoverable amount from realising the assets of TasFoods is insufficient to fund the full amount of its obligations and that there is therefore no residual value for equity holders. In short, the members of TasFoods would be in the same financial position whether the Companies are wound up in insolvency or whether the DOCA is completed.

30    There is nothing in the evidence before the Court to suggest that there is any realistic possibility of any other option or proposal that would attribute value to the shares. In my assessment, the transfer of shares in TasFoods to RAMP and/or to Tasmanian Poultry would not unfairly prejudice the members of TasFoods.

Other issues

31    The deed administrators also sought orders that the names of the second to fourth plaintiffs be amended to reflect their entry into the DOCA and the appointment of deed administrators and leave to file an amended interlocutory process to regularise the additional application for an order under s 447A(1) to vary the DOCA. It was clearly appropriate to make those orders.

32    The deed administrators sought further orders obliging them to provide notice of the Court's orders to the members of TasFoods and to the creditors of the Companies. Even though there was nothing to indicate that any member or creditor opposed the making of the orders sought by the deed administrators, it was appropriate that those orders be made. Further, as the members and creditors had not previously been informed that the deed administrators were intending to apply for an order varying the DOCA, I formed the view that there should be an order made that there be liberty to apply to set aside or vary the orders. In circumstances in which it was a condition precedent under the DOCA that leave be granted under s 444GA prior to 1 October 2026, any application to vary or set aside the orders must be made before 4.00 pm AEST on 29 September 2026.

Associate:

Dated:    25 September 2026