Federal Court of Australia

Osborne v Dalmore Holdings Pty Ltd, in the matter of New Emerald Energy Pty Ltd (in liq) (No 2) [2026] FCA 1670

ORDERS

THE COURT ORDERS THAT:

1.    The Interlocutory Process filed on 13 December 2024 is returnable instanter.

2.    To the extent necessary, service of the Interlocutory Process is dispensed with.

3.    The case management hearing listed on Thursday 19 November 2026 is vacated.

The deed of company arrangement

4.    Pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations), being Schedule 2 to the Corporations Act 2001 (Cth) (IP Schedule), the first applicants, David Christopher Osborne, David Martin Johnstone and Richard Scott Tucker in their capacity as joint and several deed administrators of New Emerald Energy Pty Limited ACN 148 891 865 are justified in proposing to the creditors of the second applicant an alternative deed of company arrangement substantially in the form set out at pages 1 to 42 of Exhibit DMJ-2 to the affidavit of David Martin Johnstone affirmed on 30 October 2026 (New DOCA).

5.    Pursuant to s 447A of the Corporations Act 2001 (Cth) and s 90-15 of the IP Schedule, Part 5.3A of the Corporations Act 2001 (Cth) is to operate in relation to the second applicant as if upon:

(a)    resolutions being passed by the creditors of the second applicant:

(i)    to terminate the deed of company arrangement entered into on 24 October 2024 and reinstated as amended by order of Goodman J on 16 December 2024 (Existing DOCA); and

(ii)    to enter into the New DOCA; and

(b)    the execution and coming into effect of the New DOCA,

the second applicant be subject to and bound by the New DOCA without being taken to have passed a resolution that the second applicant be wound up (notwithstanding s 446AA(2) of the Act and cl 16.2(v) of the Existing DOCA).

Notice

6.    The Plaintiffs are to give notice of these orders to the creditors of the second applicant by:

(a)    placing a copy of these orders on the website maintained by the Deed Administrators at: https://kordamentha.com/creditors/new-emerald-energy-pty-ltd; and

(b)    sending a copy of these orders by:

(i)    email to any creditor of the second applicant for whom or which the first applicants have an email address; and

(ii)    mail to all other creditors of the second applicant for whom or which the first applicants do not have an email address.

7.    Liberty to apply is granted to any person who can demonstrate sufficient interest to discharge or vary these orders on the giving of reasonable notice to the applicants.

Costs

8.    The applicants' costs of and incidental to this application are costs and expenses in the deed administration of the second applicant.

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

REASONS FOR JUDGMENT

JACKMAN J:

1    By Interlocutory Process filed on 4 November 2026, the plaintiffs in their capacity as Deed Administrators (Deed Administrators) of New Emerald Energy Pty Ltd (New Emerald Energy) seek orders pursuant to s 447A of the Corporations Act 2001 (Cth) (the Act), and s 90-15 of the Insolvency Practice Schedule (IPS), being Sch 2 to the Act, to permit New Emerald Energy to enter into an alternative deed of company arrangement without leading to a deemed creditors’ voluntary winding up.

2    On 5 July 2024, the Deed Administrators were appointed as voluntary administrators of New Emerald Energy at the first meeting of its creditors, replacing the former administrator of the company who had been appointed to that role on 26 June 2024 pursuant to s 436A of the Act. On 24 October 2024, the administrators were appointed as Deed Administrators of New Emerald Energy, in connection with a deed of company arrangement entered into between New Emerald Energy, the Deed Administrators and Dalmore Holdings Pty Ltd (formerly Wilcre Investments Pty Ltd) (Dalmore) (Existing DOCA).

3    Following execution of the Existing DOCA, Dalmore failed to comply with certain of its obligations, including in respect of the payment of the “Final Deposit” (as defined in the Existing DOCA) by 15 November 2025. The effect of that failure was that the Existing DOCA automatically terminated.

4    On 13 December 2024, the Deed Administrators applied to the Court to reinstate the Existing DOCA, and to formalise amendments proposed between the parties to the Existing DOCA. Justice Goodman made orders on 16 December 2024, including orders to the effect that the Existing DOCA had not terminated and was varied by the amendments proposed between the parties: Osborne v Wilcre Investments Pty Ltd, in the matter of New Emerald Energy Pty Ltd (in liq) [2024] FCA 1453.

5    Since that date, Dalmore has requested further extensions of time to make payments required of it under the Existing DOCA. Those requests have been made on multiple occasions from 16 December 2024, and the Deed Administrators have acceded to those requests. In late April 2026, it became apparent that Dalmore could not comply with its obligations under the Existing DOCA, for reasons including that it could not reach agreement with creditors holding security over New Emerald Energy for the release of their security.

6    On 28 April 2026, the Deed Administrators received a term sheet for a new deed of company arrangement from a third party, Indian Ocean Capital Pty Ltd (Indian Ocean), following discussions between the Deed Administrators and Mr Martino on behalf of Indian Ocean. Following further negotiations, Indian Ocean and the Deed Administrators agreed, in effect, that a new deed of company arrangement (New DOCA) would be entered into on terms relevantly the same as the Existing DOCA, but substituting Indian Ocean or its nominee for Dalmore as the party undertaking the relevant obligations. No material changes were made to the future obligations under the Existing DOCA, although the New DOCA did delete conditions precedent which had been complied with or waived, and payment obligations which had been complied with.

7    As Mr Johnstone explains in his affidavit of 30 October 2026 at [81]–[82], in circumstances where Dalmore has made ongoing requests to delay the payments required to be made by it under the Existing DOCA, has made ongoing requests to extend time for completion, has been unable to reach an agreement with secured creditors for the release of their security (where that release is a condition precedent of the Existing DOCA, and the absence of that release precluded the proponent from advancing additional funds), the Deed Administrators have formed the view that it would be the best outcome for creditors for the Existing DOCA to be replaced by the New DOCA without the company being placed into liquidation. Mr Johnstone explains that the new deed proponent, Indian Ocean: (a) is willing and able to take on materially the same terms as the Existing DOCA, (b) without a transition to the New DOCA there will be no prospect of creditors receiving a return in a liquidation, and (c) the New DOCA would avoid an immediate winding up of New Emerald Energy. In the absence of the orders sought in this application being made, the Existing DOCA will terminate, which will lead to a deemed winding up of New Emerald Energy.

8    An application with a number of features in common with the present application was considered and granted by Farrell J in Dickerson, in the matter of McWilliam’s Wines Group Ltd (Subject to Deed of Company Arrangement) (No 5) [2021] FCA 431, and I adopt the helpful statement of the relevant principles concerning s 447A of the Act and s 90-15 of the IPS at [38]–[42] and [46] respectively.

9    In my view, it is appropriate to make the orders sought in the Interlocutory Process, particularly in circumstances where:

(a)    there is no reasonable prospect that the Existing DOCA will complete, and as such, in the absence of the orders sought being made, New Emerald Energy will be placed into liquidation;

(b)    the New DOCA is on materially the same terms as the Existing DOCA;

(c)    the effect of the orders sought is that the New DOCA will preserve the anticipated payments for the benefit of creditors pursuant to the Existing DOCA; and

(d)    in that context, the orders sought are consistent with the objects of Pt 5.3A of the Act.

Associate:

Dated:    6 November 2026