Federal Court of Australia

Arnautovic, in the matter of ACFS Port Logistics Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed) [2026] FCA 1423

ORDERS

THE COURT DIRECTS THAT:

1.    Pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) (IPSC) at Schedule 2 of the Corporations Act 2001 (Cth) (Corporations Act), the First Plaintiffs are justified in causing the Second Plaintiff to enter into the proposed enterprise agreement with the Maritime Union of Australia (MUA) substantially in the form that appears at pages 315 to 364 of exhibit AS-1 to the affidavit of Andrew Sallway affirmed on 24 September 2026 (Proposed MUA Agreement).

AND THE COURT ORDERS THAT:

2.    Pursuant to s 447A(1) of the Corporations Act and s 90-15 of the IPSC, Part 5.3A of the Corporations Act is to operate in relation to the Second Plaintiff as if s 443A(1) of the Corporations Act also provides that:

(a)    to the extent that the First Plaintiffs are or become personally liable for any debt or liability of the Second Plaintiff arising under or in connection with the Proposed MUA Agreement, that liability extends only to debts and liabilities accruing during, or attributable to, the period of the voluntary administration of the Second Plaintiff, and does not include:

(i)    any liability that might arise simply by virtue of the Second Plaintiff having proposed or agreed to the Proposed MUA Agreement; or

(ii)    any liability attributable to the period after the voluntary administration of the Second Plaintiff ends; and

(b)    notwithstanding that any such debts and liabilities may be debts incurred by the First Plaintiffs in the performance and exercise of their functions and powers as joint and several administrators of the Second Plaintiff, the First Plaintiffs will not be personally liable to repay such debts or satisfy such liabilities to the extent that the indemnity of the First Plaintiffs under s 443D of the Corporations Act is insufficient to meet them.

3.    The First Plaintiffs must take all reasonable steps to cause notice of these orders to be given, within 2 business days of the making of these orders, to:

(a)    the creditors (including persons or entities claiming to be creditors) of the Second Plaintiff, in the following manner:

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

(ii)    where the First Plaintiffs do not have an email address for a creditor but have a postal address for that creditor (or have received notification of non-delivery of a notice sent by email in accordance with order 3(a)(i)), by notifying each such creditor, via post, of the making of the orders and providing a link to a website where the creditor may download the orders and the Originating Process; and

(iii)    placing sealed copies of the Originating Process and the orders on the website maintained by the First Plaintiffs at https://www.salea.com.au/ for a period of not less than six (6) months from the making of these orders; and

(b)    ASIC.

4.    Any person who can demonstrate a sufficient interest has liberty to apply to vary or discharge any orders or directions made above, on 3 business days’ written notice being given to the plaintiffs and to the Court.

5.    The plaintiffs have liberty to apply on 3 business days’ written notice to the Court, by interlocutory process in this proceeding, in relation to any variation of these orders, any further enterprise agreement proposed to be entered into by the Second Plaintiff (including with the Transport Workers’ Union of Australia), or any other matter generally arising out of the administration of the Second Plaintiff.

6.    The plaintiffs' costs of this proceeding be costs in the administration of the Second Plaintiff.

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 24 September 2026, the first plaintiffs, the joint and several Administrators, and the second plaintiff, the entity under administration (ACFS Port Logistics Pty Ltd or the Company), seek orders relating to a proposed enterprise agreement between the Company and the Maritime Union of Australia (MUA).

2    On 6 August 2026, Scottish Pacific Business Finance Pty Ltd (ScotPac) appointed the Administrators as joint and several voluntary administrators of the Company, and its wholly owned subsidiary, ACFS Investments 1 Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed) (ACFS Investments). On the same day, ScotPac appointed Andrew Sallway and Duncan Clubb as joint and several receivers and managers (Receivers) over the assets of the Company, and the assets of ACFS Investments. ScotPac is a secured creditor and holds the only all present and after-acquired property security interest registered against the Company and ACFS Investments.

3    The plaintiffs seek a direction pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) (IPSC) that the Administrators are justified in causing the Company to enter into the proposed enterprise agreement, and orders pursuant to s 447A of the Corporations Act 2001 (Cth) limiting the Administrators’ personal liability under s 443A(1) of the Corporations Act.

4    The plaintiffs rely on three affidavits in support of the application, each filed on 24 September 2026: the affidavit of Andrew Sallway affirmed on 24 September 2026 (Sallway Affidavit); the affidavit of Sule Arnautovic sworn on 23 September 2026 (Arnautovic Affidavit); and the affidavit of David Armstrong sworn on 24 September 2026 (Armstrong Affidavit). Mr Arnautovic is one of the administrators, and Mr Sallway is one of the receivers and managers. Mr Armstrong is the solicitor with carriage of the matter.

5    At the hearing of the application, I determined to make orders in the form sought by the plaintiffs. These are my reasons for making those orders.

FACTUAL BACKGROUND

6    It is necessary to recite the factual background in some detail in order to understand the imperative of industrial stability, which undergirds the plaintiffs’ application.

The Company’s business and appointment of Administrators and Receivers

7    The Company and ACFS Investments operate a transport, warehousing and freight logistics business which is responsible for handling a substantial volume of all seaborne freight coming into Australia (ACFS Business).

8    As at the date of the Receivers’ (and Administrators’) appointment, the ACFS Business operated from 19 leased facilities across Australia and New Zealand including major sites at Port Botany and St Marys (NSW), the Port of Brisbane (QLD), Gillman (SA), Hazelmere (WA), Altona and West Melbourne (VIC), and Manukau (NZ). Significant quantities of third-party stock were stored in warehouses and depots leased by the Company.

9    The Company has approximately 1,100 employees. The ACFS workforce is substantially unionised, with employees generally being members of either the Transport Workers’ Union of Australia (TWU) and/or the MUA.

10    The Receivers have continued to trade the ACFS Business on a ‘business as usual’ basis since their appointment, with the continuing support of ScotPac. As of 23 September 2026, the employees have continued to be paid their wages, salaries and other monetary entitlements in the ordinary course of business by the Receivers. The Receivers have made no employee redundant.

11    Mr Arnautovic deposes as to the position of the creditors of ACFS, ACFS Investments and TZI 1 Pty Ltd (a related company, to which the Administrators are also appointed). ScotPac is owed approximately $45 million. The Deputy Commissioner of Taxation has lodged a claim of approximately $75.9 million. The unadjudicated liabilities of the Company are preliminarily estimated at approximately $553 million, of which approximately $50 million is attributed to priority employee claims in a hypothetical worst case scenario, with no restructure or sale of the ACFS Business. A winding up application against the Company, to which the Deputy Commissioner of Taxation is a party, is on foot and has been adjourned by consent.

12    Mr Sallway deposes that the Receivers intend to sell the ACFS Business as a going concern, or to recapitalise it. It is expected that any binding sale documents would not be signed before 8 March 2027, and completion may not occur until the end of April 2027 (if the purchaser is a financial buyer) or around 20 September 2027 (if the purchaser is a strategic buyer and requires merger clearance).

13    The plaintiffs submit that the business must be traded through that period, and to that end, industrial stability is critical.

The Proposed MUA Agreement

14    The application before the Court concerns a proposed new enterprise agreement with the MUA (Proposed MUA Agreement), which has resulted from a bargaining process undertaken with the MUA over recent months.

15    Currently, ACFS is party to two enterprise agreements covering employees within Australia, the nominal expiry date of which was 30 June 2026:

(1)    The MUA - ACFS Port Logistics Pty Ltd Fair Work Agreement 2023 - 2026 (MUA EA), being an enterprise agreement that covers approximately 58 employees across ACFS’ sites in Melbourne and Adelaide. The MUA EA was approved by the Fair Work Commission on 9 February 2024 and commenced operation on 16 February 2024.

(2)    The TWU - ACFS Port Logistics Pty Ltd Fair Work Agreement 2023 - 2026 (TWU EA), being an enterprise agreement that covers approximately 700 employees nationally in the transport industry. The TWU EA was approved by the Fair Work Commission on 10 November 2023 and commenced operation on 17 November 2023.

16    This application concerns only the replacement MUA EA. Bargaining with the TWU is proceeding separately. The plaintiffs have foreshadowed that it is likely to be the subject of a further application in this proceeding. This is reflected in order 5 of the orders, pursuant to which the liberty to apply specifically contemplates a future application in respect of a proposed TWU enterprise agreement, if bargaining in respect of that agreement is successful.

17    The bargaining process in relation to the Proposed MUA Agreement commenced on or around 14 April 2026. Subsequently, bargaining meetings between the Company and the MUA took place throughout May, June, July and August, with the MUA also engaging in ongoing bargaining through email correspondence, telephone discussions and various exchanges.

18    In July 2026, the CFMEU made an application to the Fair Work Commission on behalf of the MUA for a protected action ballot order, to facilitate the taking of protected industrial action. The employees to be balloted under the protected action ballot order were members of the MUA, whose employment was covered by the terms of the MUA EA.

19    On 24 July 2026, the Fair Work Commission made an order for the protected action ballot to be held. The Fair Work Commission also made orders listing the matter for a compulsory conference on 13 August 2026, pursuant to s 448A of the Fair Work Act 2009 (Cth), for the purposes of mediation or conciliation in relation to the Proposed MUA Agreement.

20    The parties did not reach a settlement position during the 13 August 2026 conference. On 14 August 2026, the voting period for the protected action ballot closed, and all forms of protected industrial action referred to in the ballot were authorised by employee vote.

21    On 21 August 2026, the MUA issued a formal notice of intention to take various forms of employee claim action pursuant to s 414(2)(b) of the Fair Work Act on Thursday and Friday of the following week (First PIA Notice). The First PIA Notice gave notice that, all members of the CFMEU whose employment would be covered by the Proposed MUA Agreement, would engage in the following industrial action: (i) bans on the performance of work at “Six Road”; (ii) the unloading of any train for a period of three hours (from the time the train arrives at the terminal); and (iii) a four hour stoppage of work.

22    On 24 August 2026, a bargaining meeting was held in relation to the Proposed MUA Agreement, and the parties reached an in-principle agreement in respect of certain items which were in contention. The parties made commitments to exchange draft wording in respect of the agreed positions, and the MUA confirmed that it would withdraw the First PIA Notice. Various drafts of the proposed agreement were exchanged between the Receivers (by way of their legal advisors, Clayton Utz) and the MUA.

23    On 7 September 2026, the MUA issued a second formal notice of intention to take various forms of employee claim action pursuant to s 414(2)(b) of the Fair Work Act on Thursday 10 September 2026 and Friday 11 September 2026 (Second PIA Notice). The Second PIA Notice gave notice that, all members of the CFMEU whose employment would be covered by the Proposed MUA Agreement, would engage in the following industrial action: (i) 24 hours stoppage; (ii) an indefinite ban on the unloading of trucks between the hours of 5:00am and 8:00am; (iii) an indefinite ban on the unloading of 40-foot containers between the hours of 7:00am and 10:00am; (iv) an indefinite ban on the unloading or loading of ACFS trucks between the hours of 5:00am and 8:00am; (v) an indefinite ban on performance of work at “Six Road”; and (vi) an indefinite ban on the unloading of trains for a period of three hours commencing from the time that train arrives at the terminal.

24    On 10 September 2026, the Receivers agreed a form of new enterprise agreement with the MUA, viz., the Proposed MUA Agreement. On the basis that the parties had reached an in-principle agreement, the MUA withdrew the Second PIA Notice.

ENTRY INTO PROPOSED MUA AGREEMENT

Legal principles

25    As noted above, the Administrators seek a direction pursuant to s 90-15 of the IPSC that the Administrators are justified in causing the Company to enter into the Proposed MUA Agreement. It is relevant to briefly outline the statutory framework governing the making of an enterprise agreement under the Fair Work Act, before turning to the legal principles applicable to the exercise of the power under s 90-15 of the IPSC.

Enterprise agreement under the Fair Work Act

26    Part 2-4 of the Fair Work Act outlines the statutory framework for making an enterprise agreement.

27    Relevantly, an enterprise agreement is made when a majority of the employees who cast a valid vote approve it: s 182(1) of the Fair Work Act. If the agreement is approved, the employer applies to the Fair Work Commission for approval within 14 days: s 185 of the Fair Work Act. The agreement commences seven days after approval: s 54(1).

28    The plaintiffs submit that, prior to the vote, the employer must give the employees access to the agreement for at least seven days and explain its terms (access period): s 180 of the Fair Work Act. (It is not apparent that this is a reference to the current version of the Fair Work Act, however I note that, in any event, it is consistent with the Statement of Principles on Genuine Agreement, which provides that the employer should provide employees with a full copy of the agreement a reasonable time period before the start of voting, and as such is of no moment: see s 188(1) of the Fair Work Act.)

29    The evidence is that the Administrators do not intend to cause the Company to take further steps under the Fair Work Act, which would have the effect of committing the Company to the Proposed MUA Agreement, unless the Court orders that their personal liability be limited.

Directions under s 90-15(1) of the IPSC

30    Section 90-15(1) of the IPSC provides that the Court may make such orders as it thinks fit in relation to the external administration of a company, including an order “determining any question arising in the external administration of the company”: s 90-15(3)(a) of Sch 2 to the Corporations Act.

31    Directions about a matter arising in connection with the performance or exercise of an administrator’s functions or powers fall within the scope of that statutory power: Olsen, in the matter of Babyskin Laser & Cosmetic Clinic Pty Ltd (Administrators Appointed) (No 2) [2026] FCA 917 at [11] (Vandongen J), citing Reidy, in the matter of eChoice Limited (Administrators Appointed) [2017] FCA 1582 at [26]–[27] (Yates J). The power extends to a direction that administrators are justified in a proposed course: Crosbie (administrator), in the matter of Godfreys Group Pty Ltd (administrators appointed) [2024] FCA 60 at [74]–[75] (Beach J).

32    As observed by Goldberg J in Re Ansett Australia Ltd (No 3) [2002] FCA 90; 115 FCR 409 at [65] (in relation to the former s 447D(1)):

the prevailing principle adopted by the courts, when asked by liquidators and administrators to give directions, is to refrain from doing so where the direction sought relates to the making and implementation of a business or commercial decision, either committed specifically to the liquidator or administrator or well within his or her discretion, in circumstances where there is no particular legal issue raised for consideration or attack on the propriety or reasonableness of the decision in respect of which the directions are sought. There must be something more than the making of a business or commercial decision before a court will give directions in relation to, or approving of, the decision. It may be a legal issue of substance or procedure, it may be an issue of power, propriety or reasonableness, but some issue of this nature is required to be raised.

33    In other words, the Court does not pronounce on the commercial prudence of the course to be adopted by the administrators; it acts, in an appropriate case, to protect administrators from claims that they acted unreasonably in entering into the particular agreement. It does so on the basis of the justifications proffered by the administrators. The fact that the proposed decision or action is of a commercial character does not prevent a direction being made: Godfreys at [74] (Beach J).

Rationale for the proposed order

34    The essence of the plaintiffs’ submissions is that unless and until the Proposed MUA Agreement is made, there is a risk of industrial action. This is reinforced by the fact that the industrial action remains authorised, and the MUA has previously threatened industrial action on two occasions.

35    Both Mssrs Sallway and Arnautovic depose that, in their view, should industrial action occur, it would cause significant disruption (including delays in the movement of freight, containers and rail services). Such disruption has the potential to adversely affect customer relationships, reduce revenue and cash flow, and undermine confidence in the ACFS Business at a critical stage of the receivership and sale process. The Receivers and Administrators are of the view that avoiding industrial action is therefore important to maintaining workforce stability, and preserving the value of the ACFS Business as a going concern.

36    Further, entry into the Proposed MUA Agreement would also have a better outcome for employees, as it maximises the likelihood that their jobs will be preserved and provides certainty concerning the terms and conditions of their employment. Mssrs Sallway and Arnautovic share the view that, given the Proposed MUA Agreement has been agreed in-principle, it is necessary to move quickly to have the employees approve the Proposed MUA Agreement.

37    Mr Sallway emphasises that the Receivers have taken steps to commence a process for the sale or recapitalisation of the ACFS Business, and that the Receivers consider that it is in the interests of the Company and its creditors to preserve the assets of the Company as a whole and continue to employ the employees of the ACFS Business. Mssrs Sallway and Arnautovic each depose that entry into the Proposed MUA Agreement would help avoid crystallising pay in lieu of notice obligations (of approximately $5 to $6.8 million) and redundancy obligations (of approximately $17 to $22.1 million) if employees of the Company were to be made redundant. Mr Sallway also deposes that the additional labour cost of the Proposed MUA Agreement would be approximately $1 million per year, the significance of which is discussed below in relation to the proposed limitation of the Administrators’ liability.

38    While the plaintiffs accept that the decision to enter into the Proposed MUA Agreement is a commercial one, it carries a potential personal exposure for the Administrators, and is taken in a receivership in which the Administrators do not control the trading. In those circumstances, I accept that the decision to cause the Company to enter into the Proposed MUA Agreement raises the issue of the reasonableness and propriety of the Administrators’ actions.

39    I have considered the justifications proffered by the Administrators for entering into the Proposed MUA Agreement, including the cost of the agreement (approximately $1 million per year) and the consequences of not proceeding, including the risk of industrial action and the threat to the Company’s business as a going concern. I have also considered that the proposed course has the support of the Receivers and of the counterparty (MUA), and as of the time of the hearing, no creditor has indicated opposition to it.

Conclusion

40    On that basis, I am of the view that the direction sought is appropriate, and that the Administrators are justified in causing the Company to enter into the Proposed MUA Agreement.

LIMITATION OF ADMINISTRATORS’ LIABILITY

41    The Administrators seek orders pursuant to s 447A of the Corporations Act that their personal liability under s 443A(1) of the Corporations Act be limited to debts and liabilities accruing during, or attributable to, the period of the voluntary administration of the Company, and does not include: (i) any liability that might arise simply by virtue of the Company having proposed or agreed to the Proposed MUA Agreement; or (ii) any liability attributable to the period after the voluntary administration of the Company ends. As was raised with counsel at the hearing, it is not evident what the second element of the order adds, other than a measure of clarity in specifying the exclusion from liability.

42    The Administrators also seek orders that they will not be personally liable to the extent that the indemnity of the Administrators under s 443D of the Corporations Act is insufficient to meet any debts or liabilities.

43    The evidence is that, absent any Court order limiting their personal liability, the Administrators do not intend to cause the Company to enter into the Proposed MUA Agreement.

Legal principles

44    Section 447A(1) of the Corporations Act confers a broad power to make such orders as the Court thinks appropriate as to how Pt 5.3A is to operate in relation to a particular company. That power extends to orders altering the operation of the provisions of Pt 5.3A, including s 443A: Australasian Memory Pty Ltd v Brien [2000] HCA 30; 200 CLR 270 at 279–282 (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ); Re Ansett Australia Ltd (No 1) [2001] FCA 1806; 115 FCR 376 (Re Ansett (No 1)) at [51]–[53] (Goldberg J). The power must be exercised consistently with the object of Pt 5.3A as stated in s 435A, viz., to provide for the business, property and affairs of an insolvent company to be administered in a way that maximises the chances of the company, or as much as possible of its business, continuing in existence, or, if that is not possible, results in a better return for the company’s creditors and members than would result from an immediate winding up of the company: Re Ansett (No 1) at [49], [52]; Godfreys at [66], [69] (Beach J).

45    Section 443A(1)(a) of the Corporations Act makes an administrator personally liable for debts incurred in the performance or exercise of the administrator’s functions and powers for services rendered. The administrator is not otherwise liable for the company’s debts: s 443C. The administrator is entitled to be indemnified out of the company’s property, which indemnity has priority over unsecured debts and is secured by a lien: ss 443D, 443E and 443F of the Corporations Act.

46    The power under s 447A to limit an administrator’s personal liability under s 443A(1) is well established: Mentha, in the matter of Griffin Coal Mining Company Pty Ltd (administrators appointed) [2010] FCA 1469 (Griffin Coal (No 1)) at [29] (Gilmour J). The relevant principles governing the exercise of that power are summarised as follows (Griffin Coal (No 1) at [30]; Godfreys at [71] (Beach J)):

(1)    First, the proposed arrangements ought to be in the interests of the company’s creditors and consistent with the objectives of Pt 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 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 has been given to those who may be affected by the order.

47    The Court may place weight on the administrators’ opinion that the course proposed is in the best interests of the company: Re Ansett (No 1) at [49] (Goldberg J).

Rationale for, and scope of, the proposed order

48    It is relevant to note that the obligations under the Proposed MUA Agreement are that of the employer (i.e., the Company). The plaintiffs submit that whether, and to what extent, administrators who cause the company to make an enterprise agreement thereby assume the company’s obligations under the agreement (for services rendered within s 443A(1)(a)), is not settled. The exposure of the Administrators is therefore uncertain. The plaintiffs argue that it could extend to back pay from 29 June 2026; the uplift in wages and superannuation across the life of the agreement; and entitlements on redundancy, most of which will accrue while the Administrators are not in control of the business and after the administration has ended.

49    The order sought in respect of s 443A is relatively narrow in compass. It addresses the potential exposure, but it does not seek to deem the obligations under the Proposed MUA Agreement to be debts incurred by the Administrators, nor does it confer additional priority on them: cf. Mentha, in the matter of Griffin Coal Mining Company Pty Ltd (administrators appointed) (No 2) [2010] FCA 1470 (Griffin Coal (No 2)) orders 1(a)–(b). The plaintiffs submit that the order sought does two things: first, it confines any personal liability to debts and liabilities accruing during, or attributable to, the administration, excluding liability arising merely from the act of proposing or agreeing the Proposed MUA Agreement (and liability attributable to the period after the administration ends); second, it provides that the Administrators are not personally liable beyond the extent of their s 443D indemnity. That formulation reflects Griffin Coal (No 1) (order 2(c)) and Griffin Coal (No 2) (order 1(c)).

50    I am of the view that the order sought in respect of s 443A is appropriate in light of the Griffin Coal (No 1) factors.

51    First, the evidence of Mssrs Arnautovic and Sallway is that the proposed arrangements are in the best interests of the Company’s creditors and consistent with the objectives of Pt 5.3A of the Corporations Act.

52    As observed in relation to the s 90-15 direction, Mssrs Arnautovic and Sallway are of the view that unless and until the Proposed MUA Agreement is made, there is a risk of industrial action, which may cause significant disruption; affect customer relationships, revenue and cash flow; and undermine confidence in the ACFS Business.

53    Mr Arnautovic deposes that the Administrators believe that the orders sought will maximise the chances of the Company, or the ACFS Business, continuing in existence (including maximising the chance of employees continuing in their employment), or if that is not possible, seeking a better return for the Company’s creditors than would result from immediate cessation of the ACFS Business.

54    Mr Sallway deposes that the Receivers support the granting of that relief in circumstances where:

(1)    the approximate annual labour costs to the Company are $165 million; and

(2)    if both the Proposed MUA Agreement and the new TWU EA are agreed and approved by the Fair Work Commission, then by Mr Sallway’s calculation the additional labour cost to the Company will be approximately $8 million per year; based on the number of employees per union, this would likely represent $7 million in relation to TWU employees and $1 million in relation to MUA employees.

55    As such, the plaintiffs submit that the cost is modest: approximately $1 million a year for the MUA employees, against a labour bill of approximately $165 million. On the contrary, a failed bargaining process risks protracted industrial action, cessation of operations and liquidation. Mr Arnautovic deposes that in a liquidation scenario, total employee entitlements (in the vicinity of $50 million) would significantly increase the Company’s liabilities, and reduce the prospect of making any meaningful dividend distribution to creditors. Further, employees of the Company would likely be made redundant, with limited certainty as to whether they would receive payment in respect of entitlements.

56    As noted above, the Court may place weight on the administrators’ opinion that the course proposed is in the best interests of the company: Re Ansett (No 1) at [49] (Goldberg J). Mssrs Arnautovic and Sallway each have extensive experience in restructuring and insolvency. Mr Arnautovic is a chartered accountant and registered liquidator with over 25 years’ experience in corporate insolvency, restructuring and external administrations. Mr Sallway is a registered liquidator, member of Chartered Accountants Australia & New Zealand, fellow of the Australian Restructuring Insolvency & Turnaround Association, and has over 30 years’ experience in business restructuring and insolvency.

57    Second, the proposed arrangements are to enable the ACFS Business to continue to trade for the benefit of the Company’s creditors.

58    As at the date of this application, the Receivers are trading the ACFS Business as a going concern for the purpose of a sale or recapitalisation. Mr Sallway deposes that the Proposed MUA Agreement is critical to retaining employees and avoiding industrial action, to ensure business as usual operations. The plaintiffs submit that this is the paradigm case for relief of this kind: Godfreys [72]–[73], [76]. That submission has force.

59    Third, the creditors of the Company should not be prejudiced or disadvantaged by the orders sought and should stand to benefit from the Administrators entering into the arrangement.

60    The plaintiffs submit that the order sought neither confers priority nor alters creditors’ rights. The employees’ claims against the Company (and their priority in any winding up) are unaffected, as is any Receivers’ liability for wages incurred in trading (under s 419 of the Corporations Act), the Fair Entitlements Guarantee scheme and ScotPac’s rights as secured creditor. The plaintiffs contend that no creditor is subordinated and no creditor’s ranking changes. The limited scope of the order sought is a compelling factor in its favour.

61    The plaintiffs submit that the only interest engaged is that of a person who might otherwise have had recourse against the Administrators personally in respect of the Proposed MUA Agreement. However, such a person maintains their recourse against the Company, the Receivers (to the extent of s 419), and the s 443D indemnity. In this instance, the counterparty (the MUA) bargained for the Proposed MUA Agreement, agreed its terms, and withdrew notices of industrial action. The Receivers, appointed by ScotPac, support the relief. Further, the Fair Entitlements Guarantee scheme does not presently envisage taking a position. As such, the creditors of the Company will not be prejudiced or disadvantaged.

62    Fourth, notice has been given to those who may be affected by the order.

63    On or around 11am on 23 September 2026, the day before the hearing of this application, the Administrators issued a circular to creditors of the Company by email enclosing a copy of the unfiled originating process. The circular provided details of the proposal to bring the application, and invited creditors to contact the Administrators if they wished to be heard on the application or sought further information. Mr Armstrong, Special Counsel at Mills Oakley, deposes that as at the time of swearing his affidavit, only one response was received from a creditor of the Company. The creditor, SAI Security Protection Pty Ltd, indicated that it supported the application and orders sought.

64    At the hearing of the application, counsel for the plaintiffs indicated that no further responses from creditors had been received, although accepted that only a short period of notice was provided. As such, the plaintiffs propose that notice of the orders be given to creditors and ASIC within two business days of the date of the orders, and that any person with a sufficient interest have liberty to apply to vary or discharge the order on three business days’ notice. In that way, the interests of any person affected by the orders are protected.

Conclusion

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

Associate:

Dated:    1 October 2026