Agar v Hyde

Affidavit evidence

1. Atradius reads the affidavit dated 1 August 2022 of its solicitor, Mr Polczynski, filed at the same time as the Originating Process. That affidavit exhibited a copy of the 2022 SoC, and numerous company searches for the Arrium Administration Companies in compliance with a requirement of the Corporations Rules. Atradius also read the affidavit dated 11 August 2022 of Ms Carter, also a solicitor acting for it in the proceedings, which exhibited a number of facility agreements, other financing documents in respect of the Arrium Group and documents relating to the deed administration. I have referred to several of those documents in the chronology which appears above.
2. Atradius reads the affidavit dated 1 September 2022 of Mr Polczynski in support of its application to extend the time for service of the Originating Process. Mr Polczynski refers to his causing the Originating Process attaching the Statement of Claim at Schedule 3 ("2022 SoC") to be filed on behalf of Atradius. His evidence (Polczynski 1.9.22 [4]) is that: "The Originating Process was filed principally to avoid any potential limitation of action issues for the causes of actions which may be available to [Atradius] (and the aggrieved creditors) against the Defendants."
3. Several matters should be noted here as to that observation. First, neither Atradius nor any other party identified how the limitations issue would arise under a claim under s 90-15 of the IPSC or s 447A of the Act, although it is at least possible that such an issue might arise in respect of a claim in equity. Second, Atradius expressly did not accept in this application that any limitation issue would defeat its claim, if the relief sought in this application was not granted, and the Defendants equally reserved their position as to limitation defences. Third, although Mr Polczynski refers to a claim by "aggrieved creditors" and foreshadows an intent by Atradius to bring a representative action, Atradius has not presently sought to establish any basis on which it would be permitted to do so. I address that matter further below.
4. Mr Polczynski referred (Polczynski 1.9.22 [9]ff) to the conduct of the FCA Proceedings and to the judgment of the Full Court of the FCA delivered on 20 December 2018 in Rexel FCAFC No 1. He indicated (Polczynski 1.9.22 [10]-[11]) that, since that time (I interpolate, for nearly four years): "[Atradius] and this firm on behalf of [Atradius] have been exploring funding opportunities for the purposes of this proceeding and proposed public examinations (addressed further below). Once funding was secured, the Originating Process was filed at the earliest opportunity. Had the proceedings not been filed, potential causes of actions available to [Atradius] (and the aggrieved creditors) may have expired on 2 August 2022. In this regard, I refer to the [2022 SoC] including specifically paragraphs 51 and 52."
5. This evidence is notable for its lack of detail. Mr Polczynski does not explain what steps were taken to explore those funding opportunities in those four years. He also does not identify which funders were approached in that period, or when they were approached, or what was done to progress funding applications, or when funding applications were accepted or refused. He does not indicate the nature or identity of any funder that is now funding the proceedings or disclose whether that funder is a third party litigation funder or associated with Atradius or its related companies.
6. Mr Polczynski also referred to the fact that the Originating Process and affidavits filed in support of it had not then been served on any of the Defendants and properly recognised that such service was required by rule 2.7 of the Corporations Rules, but indicated that Atradius sought an order relieving it from the obligation to serve the Originating Process and supporting affidavits. He indicated the Originating Process and supporting affidavits were served on ASIC on 1 September 2022. He also referred to a letter dated 7 June 2022 by which ASIC granted Atradius "eligible applicant" status to seek to conduct examinations under Pt 5.9 of the Act and he referred to Atradius' intention to commence separate proceedings seeking the issue of numerous examination summonses and orders for production. The KM Defendants have now sought to set aside ASIC's grant of eligible applicant status to Atradius and the Court has not yet issued for examination summonses or orders for production. Mr Polczynski indicated his then expectation that public examinations may not be completed by the end of 2022. As I noted above, they are now unlikely to be completed in the short term.
7. Mr Polczynski' s evidence, in support of the application to dispense with service of the Originating Process, was that Atradius "requires further time to investigate additional claims and assess whether there needs to be refinement to the existing claims in the [2022 SoC]". He sought to "adjourn" the proceeding "sine die" or alternatively to March or April 2023, deferring further service of the proceedings, to allow the examinations and the review of documents produced in them to take place. He recognised a possibility that, after the public examination proceedings were concluded, there would be "no utility in this proceeding" and that Atradius would seek to have it dismissed.
8. Atradius also reads the affidavit dated 23 September 2022 of Ms Malnersic, also a solicitor acting for Atradius, which confirmed that the Defendants had not then been served with the Originating Process, the affidavits of Mr Polczynski dated 1 August 2022 or Ms Carter dated 11 August 2022, or the Interlocutory Process filed 2 September 2022 and Mr Polczynski's affidavit dated 1 September 2022. She also updated the position as to Atradius' application for orders for public examinations and indicated that she expected that applications for such examinations would be filed by 30 September 2022.
9. Atradius reads the affidavit dated 29 March 2023 of Ms Tate, another solicitor acting for Atradius, which exhibits a copy of Atradius' policy for trade credit insurance and a schedule of claims that Atradius paid to its insureds in relation to the Arrium Group. I accept that that evidence establishes that Atradius has suffered an economic loss, in indemnifying its trade creditor insureds, as a result of the administration and subsequent liquidation of the Arrium Group, or at least those companies within it that owed debts to its insured trade creditors. I address the question whether that is sufficient to establish standing under s 90-15 of the IPSC below.
10. Atradius also reads a second affidavit dated 4 April 2023 of Ms Malnersic, who refers to correspondence with the Court in respect of the earlier stages of this application and correspondence between Atradius' solicitors and the solicitors acting for the Participating Financiers. Ms Malnersic noted that, on 29 March 2023, several of the Financiers were not represented by the firm that acts for the majority of those Defendants, and notes that the majority of these Financiers were located overseas. She refers to service of the Interlocutory Application on these overseas Financiers. By an affidavit dated 5 April 2023, Mr Dobb, a solicitor also acting for Atradius, advises steps taken towards scheduling examinations in the matter. Atradius also reads the affidavits dealing with service of this application on the overseas Financiers, in Singapore, the United States and the Cayman Islands.
11. The KM Defendants rely on the affidavit dated 30 January 2023 of Mr Webster, who is one of the KM Defendants and was one of the voluntary administrators and subsequently deed administrators and liquidators of companies within the Arrium Group. Mr Webster's evidence is that many of the Arrium Administration Companies were sold or deregistered and that all monies payable from the administration and liquidation of the Arrium Administration Companies have been distributed to creditors, with the final dividend paid to creditors on 17 August 2022 (Webster [3]). As I noted above, that occurred after the commencement of these proceedings by Atradius, but before Atradius gave notice of the proceedings to the KM Defendants or served this application upon them. I will return to the significance of that matter below.
12. Mr Webster also exhibited several affidavits that had been relied on in the FCA Proceedings. He outlined the structure of the Arrium Group and the nature of its business to which I have referred above. He also referred to the structure of the Moly-Cop Entities, which were not subject to insolvency proceedings, were mostly domiciled in foreign jurisdictions and were trading profitably when the Arrium Group entered administration (Webster [21]). I address the significance of matters concerning those companies to Atradius' claims below. Mr Webster also outlined the Arrium Group's external financing arrangements and the position in respect of the Arrium Group Guarantees (as defined) and the ASIC DOCGs, to which I referred above. Mr Webster also referred to the GSO Interim Facility and the substantial debts of the Arrium Group companies, including debts owed to the Financiers.
13. Mr Webster provided a detailed account of the conduct of the administration of the Arrium Group, referring to the first creditors meeting in April 2016, the entry into the GSO Replacement Facility with several Financiers in April 2016, the extension of the convening period for the Second Creditors Meeting and the application made to the FCA on 25 October 2016, seeking relief to permit the voluntary administrators to provide the Aggregated s 439A Report to creditors. Mr Webster also outlined the steps taken by the voluntary administrators to sell the Moly-Cop Entities and the Arrium Sale Entities and the process adopted to secure the Financiers' consent to the Moly-Cop Sale, including the entry into the Standstill Deeds to which I referred above. Mr Webster observed in that regard (Webster [62]-[65]) that: "In order to affect an orderly sale of the Moly-Cop entities, we needed the consent of the Financiers. This was so as, a consequence of the Administrator's appointment, the Financiers had the right to demand, via the Group Guarantees, repayment of the Financier Debt by the Moly-Cop Entities who were Guarantors under the Group Guarantees. The Financier Debt exceeded the enterprise value of the Moly-Cop business. Therefore, had the Financiers not consented to the sale transactions, they could have called on their debts and defectively forced the liquidation of certain Moly-Cop Entities, destroying the value of the Moly-Cop Entities as a going concern. Due to the impact of Moly Cop's inter-related customers, suppliers, employees and contracts, a former appointment over the Moly-Cop Entities would have crystalised employee redundancy claims, supplier/creditor claims and would also have negatively impacted the trade on the Arrium Australia business, the stakeholders of which were already facing significant uncertainty following the appointment of Administrators. In this context the Administrators and the Moly-Cop Entities sought forbearance from the Financiers to facilitate an orderly sale of the Moly-Cop Business. In return for this forbearance, the Financiers required that the proceeds from the sale any Moly-Cop Entity be allocated: (a) First, to the GSO Replacement Facility Financiers in repayment of the GSO Replacement Facility; and (b) Second, to the Financiers in respect of the financier debt."
14. Mr Webster then addresses the Aggregated s 439A Report prepared by the KM Defendants in late October 2016, which contained two forms of deed of company arrangement, being the Transaction Support DOCAs executed by 93 of the Arrium Administration Companies and the Distribution DOCA executed by the Arrium Distribution Company. Mr Webster also outlined the process by which claims were to be made under the Distribution DOCA. He addressed the conduct of the Second Creditors Meeting and approval of the Distribution DOCA and the Transaction Support DOCAs at that meeting and records that 98% of creditors of each and every one of the Arrium Administration Companies voted in favour of the Distribution DOCA and the Transaction Support DOCAs, by value and by number, and Stirling did not vote at that meeting.
15. Mr Webster also refers to the execution of a contract for sale of the Moly-Cop business to a third party for US $1.23 billion on 4 November 2016, which was completed on 3 January 2017, and to the payment of the net proceeds of that sale to the Financiers. He outlined the subsequent sale of the Arrium Sale Entities and referred to subsequent reports and distributions to unsecured creditors. He also outlined, at some length, the conduct of proceedings in the FCA in the second half of 2017, addressing issues raised by Epic and subsequently by Rexel, which were trade creditors insured by Atradius. Atradius accepts that it had conduct of those companies' role in the FCA proceedings and that they should be treated in privity with it for the purposes of this application. Mr Webster also outlines the history of payment of dividends to Stirling in respect of the administration, and, not surprisingly, points to Atradius' delay in commencing these proceedings. Mr Webster also notes that the DOCAs for each of the Arrium Sale Entitles were terminated on 31 August 2017 and the proceeds of the sale of the Arrium Sale Entities were paid into the Arrium Distribution Fund for distribution under the Distribution DOCA (Webster [92]).
16. The Participating Financiers read two affidavits, both dated 23 January 2023, of Mr Troiani, a solicitor acting for them, and Mr Gavrilos, the Global Head of Corporate Services in the Corporate Finance Division at NAB. Mr Troiani refers to the FCA Proceedings, the interlocutory application brought by Epic in those proceedings and the appeal brought by Epic to the Full Court of the Federal Court, which was dismissed in December 2018. These matters are relevant to the submissions put by the Participating Financiers as to estoppel which I address below. Mr Troiani also refers to the 2021 annual report for Atradius N.V., the ultimate parent company of Atradius, which establishes that it has substantial assets and plainly had the capacity to fund the conduct of these proceedings by Atradius at relevant times. Mr Gavrilos refers to NAB's role as "Agent" and "Global Agent" in financing and restructuring documents in respect of Arrium Ltd and the Arrium Group and in distributing repayments to Financers. He notes that NAB as Agent currently holds funds on behalf of the Financiers, and was in the process of paying a final dividend to Financers, which has been held back following notification of Atradius' commencement of the proceedings. No doubt, NAB was fortunate in having that opportunity to hold back a dividend which, as I noted above, was lost to the KM Defendants by Atradius' failure to give notice of or serve the proceedings on the KM Defendants promptly after they were commenced.

Whether Atradius has established sufficient reason to extend the time for service of the Originating Process

1. I first address Atradius' application for an order nunc pro tunc under UCPR r 1.12 that its Originating Process is valid for service until the later dates to which it seeks to extend service. As I noted above, this order is necessary because Atradius has not complied with the requirements of UCPR r 6.2(4) or, in my view, the requirements of r 2.7 of the Corporations Rules in respect of the service of the Originating Process. Unless this order is made, no question of further extending the time for service of the Originating Process arises, because that Originating Process would already be stale and could not now be served. I am not persuaded that the time for service of the Originating Process should be extended, and, indeed, I am affirmatively satisfied that it should not be extended, for the reasons noted below.
2. Rule 6.2(4)-(5) of the UCPR relevantly provide that an originating process is valid for service, in the case of proceedings in this Court, for 6 months after the date on which it is filed; and a failure to serve an originating process within the time limited by these rules does not prevent a plaintiff from commencing fresh proceedings by filing another originating process. Rule 2.7 of the Corporations Rules provides that: "(1) As soon as practicable after filing an originating process and, in any case, at least 5 days before the date fixed for hearing, the plaintiff must serve a copy of the originating process and any supporting affidavit on: (a) each defendant (if any) to the proceeding; and (b) if the corporation to which the proceeding relates is not a party to the proceeding - the corporation."
3. Rule 1.12 of the UCPR (as applied by r 1.10 of the Corporations Rules) authorises the Court to extend the time fixed by r 2.7 of the Corporations Rules for service of an originating process, even after the relevant time expires. Mr Williams submits, by reference to authority, that r 1.12 confers a discretion which is not in terms fettered, but a plaintiff seeking an extension of time must establish a proper reason for it being granted; the plaintiff has the burden of satisfying the Court that good reasons exist for exercising the discretion to extend time; and a defendant has no right to retain the benefit of expiry of the limitation period, but this is a "relevant factor" where a plaintiff is seeking an extension of time. Rule 12.11 of the UCPR in turn permits the Court to set aside an originating process that is stale, in the sense of being incapable of valid service, and s 63(3) of the Civil Procedure Act 2005 (NSW) ("CPA") authorises the Court to set aside a proceeding or an originating process where there has been a failure to comply with the rules of the Court.
4. In its "roadmap" of its submissions, Atradius submits that the Court would grant orders nunc pro tunc extending the time for service of its stale Originating Process. It submits, uncontroversially, that the Court has a discretion to extend time for service otherwise required by r 2.7 of the Corporations Rules and UCPR r 6.2(4). It summarises its position as that it has demonstrated a proper basis for the exercise of the discretion in its favour because: [Atradius'] failure to serve in accordance with the Corp[ation]s Rules, and [the] UCPR was intended to conduct the proceeding efficiently; viz, to delay substantive steps until after it had completed investigations authorised by ASIC. Its actions were not capricious. It commenced the proceeding to avoid any potential limitations defence. Its expectation was and is that the [2022 SoC] would be modified following examinations and any steps taken in advance of the examinations would be wasteful ... the fact that the O[riginating] P[rocess] was allowed to go stale, and not served within the time required by r 6.2(4) UCPR was inadvertent and arose from an unanticipated delay in the time between applying for relief from the obligation to serve the O[riginating] P[rocess] under Corp[oration]s Rule 2.7 and the hearing of this application, including by reason of it being heard at the same time as the [D]efendants' subsequently filed and related Interlocutory Processes …. if relief is not granted the Plaintiff may suffer highly material prejudice, viz litigation of an important and serious matter in respect of substantial financial impact on a large body of creditors which warrants determination on the merits … given that the proceedings were commenced six years after the entry into the Standstill Agreements for the avowed purpose of attempting to avoid the effect of any limitation period, it is reasonable for the Court to infer there is a risk that in any new proceedings the plaintiff would be met with limitation arguments that create substantial uncertainty, and increase costs, without allowing the substance of the claim to be determined … alternatively, if a new proceeding is commenced, and it is not time barred, the commencement of a new proceeding will necessarily lead to duplicated cost and waste and will not reflect efficient conduct of the litigation ... [Atradius] has demonstrated that it has standing … [Atradius] has disclosed an arguable claim appropriate for determination at a trial …".
5. I address each of these matters below. As will emerge below, I do not accept several of these submissions. In particular, the proposition that Atradius' failure to serve the Originating Process was intended to promote efficiency does not address the fact that Atradius identified its proposed claims long ago and has had a long period in which to seek authorised applicant status for examinations and conduct them and does not explain its delay in doing so; there was no "unanticipated" delay in hearing Atradius' application, but Atradius instead sought its adjournment on several occasions before the Interlocutory Process was served on the Defendants at the Court's request, and the application could readily have been heard in late 2022 had Atradius sought to have that occur; Atradius' submission as to prejudice assumes the existence of a limitation period which it does not accept applies, although I accept it will suffer some prejudice by way of wasted costs and a risk that a limitation period in fact applies if the application does not proceed; and Atradius has not sought to show that it should be permitted to conduct the proceedings for creditors other than itself and no issue as to other creditors arises. I also address the issues as to standing and whether Atradius has identified an arguable case below.
6. In their "roadmap" of submissions, the KM Defendants in turn point to several factors which they contend have the result that the Court not exercise its discretion in Atradius' favour to extend the time for service of the Originating Process, as follows: "Atradius has not identified any good reason for any indulgence in relation to the O[riginating] P[rocess] whatsoever. Atradius has not established any prejudice to it if the proceedings were dismissed. In particular, Atradius has not established the effect of any expiration of any limitation period on its claim. It puts the matter no higher than that it could cause some uncertainty. There is no evidence before the Court about what Atradius would do if the proceedings were dismissed. Unlike the cases involving impecunious liquidators, Atradius has not established any public interest in the proceedings continuing. Atradius gets no support from the cases of [Kogan v Rogulj, in the matter of Rogulj Pty Ltd (in liq) [2021] FCA 1137] and [Liquor National Pty Ltd (in liq) v Australia and New Zealand Banking Group Limited [2020] NSWSC 122] upon which it relies most heavily. Atradius does not even know if it wishes to prosecute these, or any, proceedings. At best, it says it wishes to preserve a potential limitation period so that it can examine some 15 people to establish whether there is any utility (to Atradius) to bring the proceedings. Atradius has inadequately explained its delay in filing and serving the O[riginating] P[rocess] in evidence. … It is of consequence that it was apparent from the breadth of the oral submissions at hearing that the [2022 SoC] may not even articulate the case Atradius says it may wish to bring. Atradius is proposing to serve defendants, including those outside the jurisdiction, with its [O]riginating P[rocess] revealing claims it may not propound. In particular, the [2022 SoC] does not allege any 447A claim as foreshadowed in Atradius' submissions or any impropriety, which, in submissions, was also averted to."
7. In their "roadmap" of submissions, the KM Defendants also emphasise that: "Atradius has delayed filing and serving the O[riginating] P[rocess], which is unexplained and has caused prejudice to the [KM Defendants]: The dispute resolution provisions of the DOCAs (mediation clauses at cl 22 Transaction [Support] DOCAs and 21 of the Distribution DOCA, but more particularly including cl 19.3 of the Distribution DOCA which is to ensure that creditors receive more than on a winding up), could have been used by Atradius' insureds but were not; Facsimile proceedings were commenced and dismissed without determination on the merits by Davies J; Atradius is extremely well resourced and the delay in commencing proceedings cannot be adequately explained, as Atradius seeks to, on the basis of securing litigation funding; This delay has caused the [KM Defendants] actual prejudice as they have distributed all funds available to creditors when they could have held funds back pursuant to the provisions of the DOCA to indemnify any claim; and Particularly in respect of delay between filing and notice of these proceedings (even before delay in service, yet to be effected), the final distribution to creditors was made in the sum of around $16,000,000."
8. In their "roadmap" of submissions, the Participating Financiers summarise their similar position that: "In order to establish a proper basis for the exercise of the Court's discretion to grant [Atradius] an extension of time to serve the Originating Process pursuant to UCPR r 1.12, [Atradius] must demonstrate good reason for the extension being granted … Where an extension of time for service is sought in order to allow [Atradius] to carry out further investigation of its claims prior to service, the failure by [Atradius] to explain why such investigation was not carried out earlier provides a strong discretionary ground for refusing the extension sought … [Atradius] has failed to demonstrate good reason for any extension of time to serve the Originating Process being granted… In particular, [Atradius] has failed to proffer an adequate explanation for the delay in service. Insofar as the explanation for the delay in service is that [Atradius] did not (and does not) wish to serve the Originating Process until it has conducted further investigations (including public examinations), the plaintiff has not adequately explained its delay in conducting such further investigations …"
9. The Participating Financiers also highlight their submissions that the limitations period applicable to Atradius' claims against the Financiers (by statute or by analogy) have likely expired or, alternatively, if it has not expired, then Atradius would not suffer any prejudice if the relief it seeks is not granted; Atradius has made no attempt at formal service upon any Defendant; notice of the intended proceeding was not given to any Financiers prior to the likely expiration of the applicable limitations period; the Defendants will suffer prejudice if an extension of time for service is granted; Atradius has not led evidence of any prejudice it will suffer if an extension of time for service is not granted; the grant of an extension of time for service in the circumstances of this case would be inconsistent with the overarching purpose in s 56 of the CPA and the dictates of justice as set out in s 58 of the CPA; and, importantly: "there would be no utility in extending the time for service because [Atradius'] claims are liable to be summarily dismissed (and the problems with [Atradius'] claims that justify summary dismissal cannot be overcome or remedied through further investigation or amendment) …"
10. I address the question of delay and Atradius' explanation for the delay at this point and address issues as to the scope of the claims identified in the 2022 SoC below. I should first note several of the cases to which Counsel referred, before turning to the application of relevant factors in this case. Ms Whittaker, with whom Ms King and Mr Di Stefano appear for the KM Defendants, draws attention to the observations of Handley AJA (with whom Tobias JA and Basten JA agreed in Pell v Hodges [2007] NSWCA 234 at [44] that: "A plaintiff who issues proceedings just before the limitation period and only then has the merits of the case investigated should not have any expectation of obtaining an extension of time to enable investigations to continue. There should also be no expectation that time spent in this way after the statement of claim has been issued, especially after it has become stale, will be accepted as an adequate explanation for such delays."
11. Mr Williams in turn refers to the Court of Appeal's observation in Arthur Anderson Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 ("Buzzle") at [43] that: "Accordingly, the Court should consider, when exercising a discretion such as that under UCPR r 1.12, the attempts that have been made at service, the length of the delay, the reasons for the delay, whether the delay was deliberate, whether notice was given to the defendant, the conduct of the parties generally, and the hardship or prejudice caused to the plaintiff by refusing the renewal or to the defendant by granting it."
12. That summary was approved by Tobias JA (Macfarlan JA and Sackville AJA agreeing) in Agricultural & Rural Finance Pty Ltd v Kirk [2011] NSWCA 67 ("Kirk") at [62], [94]-[112]. Mr Williams fairly accepts that the Court must take into account the policy considerations underlying the relevant limitations statute, and that defendants or potential defendants should be made aware of claims against them within a reasonable time and parties who do not commence proceedings until just before expiry of the limitation period should be especially diligent in pursuing prompt service: Buzzle at [37]-[39], cited with approval in Kirk at [98]-[99].
13. Mr Williams also points to Weston in his capacity as Special Purpose Liquidator of One.Tel Ltd (in liq) v Publishing and Broadcasting Ltd (2012) 88 ACSR 80; [2012] NSWCA 79 at [20] and to the relevance of ss 56-59 of the CPA and whether the relevant party has diligently pursued the object of disposing of the proceedings in a timely way; used, or could reasonably have used, available opportunities under the rules or otherwise, to avoid delay; and reasonably implemented the practice and procedure of the court with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination.
14. In Hastie Group Ltd (in liq) v Moore [2016] NSWSC 1682 ("Hastie"), Ball J considered a somewhat similar case where statements of claim were valid for service for six months after the date on which each was filed under UCPR r 6.2(4), and a plaintiff sought and a registrar allowed (ex parte) an extension of time for service under UCPR r 1.12, and the defendants applied to discharge the orders granting that extension of time and set aside service of the statements of claim made pursuant to those orders. His Honour observed (at [45]-[47]) that: "Although the current form of the rule permitting the court to grant an extension of the time for which an originating process is valid for service does not in express terms require the applicant for an extension to show that the applicant has a good reason for seeking the extension, it is generally accepted, and the plaintiffs conceded in this case, that that is one of the matters that must be demonstrated by the applicant for an extension: see Hunter v Hanson [2014] NSWCA 263 at [59] per McColl JA (with whom Macfarlan and Emmett JJA agreed). The relevant delay is the delay between the time when the proceedings were commenced and the time when the originating process was served; and it is the length of that delay and the reasons for it which are relevant: see Weston at [168]. On commencement of proceedings, a plaintiff becomes bound by the obligations imposed by ss 56-60 of the [CPA]; and a failure to comply with those obligations is relevant to an exercise of the discretion conferred by UCPR r 12.11(1)(e). Consequently, the fact that an originating process remains valid for service for six months does not mean that the plaintiff can wait six months before serving the originating process with impunity. Indeed, as Sackville AJA pointed out in Weston at 20, where proceedings are issued just before the expiration of the limitation period, there is an obligation on the plaintiff to proceed more diligently than otherwise: see also Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863 at [32] per Tadgell and Ormiston JJ (with whom Brooking J agreed); Tolcher v Gordon [2005] NSWCA 135 at [3] per Hodgson JA. That is not to say, however, that events prior to the time when the proceedings were commenced are irrelevant. Those events may shed light on the delay in question. For example, there is a difference between delays that arise from matters that could have been attended to by the plaintiff before proceedings were commenced but were not and delays that arise from matters that only arose after proceedings were commenced."
15. His Honour also pointed to relevant prejudice which the defendant in that case would suffer, as a consequence of the delay arising from the extension of time for which the originating process was valid for service, and observed (at [49]) that: "The court presumes that delay by a plaintiff in bringing or pursuing a claim is likely to cause the defendant prejudice. That prejudice includes the risk the defence may be prejudiced because relevant evidence is lost, witnesses may become unavailable and memories are likely to fade: Weston at [167]ff; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 at 552-3. In the case of claims against individuals, it may also be presumed that the defendants will suffer prejudice as a consequence of the stresses and strains that allegations going to their probity or competence are likely to place on them: see Bishopsgate at [60]; Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2004] NSWSC 1219 at [70]; Weston at [173]."
16. His Honour there found that the extensions of time should be discharged, and the proceedings dismissed, where there was insufficient reason for the liquidators in that case to have delayed service of the proceedings, and the work for which the extensions were required could have been undertaken before the extensions became necessary and no reasonable explanation had been given for why that did not occur. The liquidators had there done very little to investigate or progress the claims between their identification at the end of 2012 and when it was necessary to apply to extend the period in which the statement of claim remained valid for service (at [65]). His Honour also there observed (at [68]) that the plaintiffs had a duty to act promptly in serving the proceedings once they were issued. The position is a fortiori here where that duty was express under r 2.7 of the Corporations Rules.
17. Mr Williams also refers to my first instance decision in Re Tiaro Coal Ltd (in liq) [2018] NSWSC 828 ("Tiaro Coal"), and to the Court of Appeal's decision declining leave to appeal from that decision in Choy v Tiaro Coal Ltd (in liq) [2018] NSWCA 205 ("Choy"). He points out that a liquidator had there not served an originating process "as soon as practicable after filing" in accordance with r 2.7 of the Corporations Rules. The defendants there contended that the originating process should be set aside by reason of the delay in service under s 63(3)(a) of the CPA. I declined that application, where I had found that the liquidator had delayed serving the originating process to enable it to first secure litigation funding where it did not have the capacity to fund the proceedings (at [53] and [57]). It seems to me that the position in this application is quite different from that considered in Tiaro Coal. The liquidator had there led comprehensive evidence of his need for litigation funding and his efforts to obtain it, by contrast with the perfunctory evidence led by Atradius in this application. There was no suggestion in that case that the liquidator had not adequately articulated his and the company's claims, by contrast with my findings below in this application. By contrast, there is also no adequate explanation here, in Mr Polczynski's affidavit evidence, of the matters which have led Atradius to consider that it needs to undertake the public examinations or the matters to which those public examinations will be directed, and neither Atradius nor Mr Polczynski provides any explanation of how those public examinations will be capable of addressing the difficulties with the articulation of its claim which I address below. Ms Whittaker also addresses the effect of UCPR r 6.2(4), by reference to the decision in Tiaro Coal and rightly notes that, on appeal in Choy, Leeming JA noted a significant difference between exercising the power under CPA s 63 as a result of an irregularity resulting merely from the contravention of r 2.7, and exercising the power for the contravention of both rules 2.7 and 6.2(4). The latter position is the case here.
18. Mr Collinson also addresses the application of UCPR r 6.2(4) and r 2.7 of the Corporations Rules and the Court of Appeal's decision in Choy, in helpful submissions, as follows: "In proceedings in the Supreme Court, an originating process is valid for service for six months after the date on which it is filed. This is "an important protection for defendants that should only be regarded as eroded if the intent that that occur clearly appears from elsewhere in the UCPR". "The six-month period specified in [UCPR] r 6.2(4) reflects the result of a process of legislative change which has steadily shrunk the period within which an originating process is valid for service". Despite UCPR r 6.2(4), in proceedings in the Supreme Court to which the Corporations Rules apply, the plaintiff must serve a copy of the originating process and any supporting affidavit each defendant and the corporation to which the proceeding relates (if not also a defendant) as soon as practicable after filing the originating process, and, in any case, at least 5 days before the date fixed for hearing. The Corporations Rules prevail over the UCPR, but only to the extent of any inconsistency between them. The interaction of UCPR r 6.2(4) and Corporations Rule 2.7 was explained in Choy by Leeming JA (with whom Gleeson and Payne JJA agreed), at [44]-[47]: "Rule 6.2(4) of the Uniform Rules relevantly does two things. First, it provides that an originating process may be served without the need for an extension within six months after it has been filed. Insofar as service of a valid originating process is an element of effective service, it thus identifies a time frame during which service is valid. Secondly, at least when r 6.2(4) is considered in isolation, it gives a right to a plaintiff to effect personal service at any time in those six months. Another way of putting this is that it renders a defendant liable to personal service of a valid originating process at any time within the six months following commencement of proceedings. Rule 2.7 of the Corporations Rules says nothing about when an originating process ceases to be valid. However, it does impose an obligation to serve an originating process which is inconsistent with a plaintiff having an unfettered right to delay service for up to six months. Insofar as r 6.2(4) would authorise a plaintiff to delay effecting service, it is inconsistent with r 2.7. The latter prevails and to that extent r 6.2(4) is not applicable. However, s 11 of the [CPA] and r 1.3 of the Corporations Rules ensure that r 6.2(4) nonetheless applies to the extent that they are not inconsistent. There is no inconsistency between r 2.7 and r 6.2(4) insofar as the latter specifies the time after which an originating process becomes stale and will need to be renewed if valid service is to be effected. To that extent, r 6.2(4) applied. The somewhat complex result of the qualified provisions governing the interaction between the Corporations Rules and the Uniform Rules may be tested as follows. Plainly enough, it is no answer to a contravention of r 2.7 to say that there was no contravention of r 6.2(4); that is the point of their being inconsistent with the former prevailing. However, there is a significant difference between exercising the power under s 63 as a result of an irregularity resulting merely from the contravention of r 2.7, and exercising the power following a contravention of both r 2.7 and r 6.2(4). It is material in the latter case for the court to bear in mind that not only was service not effected as soon as practicable, but also that the relatively generous six-month period for service was not complied with." [citations omitted]
19. In Liquor National Pty Ltd (in liq) v Australia and New Zealand Banking Group Limited [2020] NSWSC 122 ("Liquor National") at [26], Beech-Jones J in turn observed that "[i]n the case where [the plaintiff] has not been seeking to serve the statement of claim, the question is perhaps better directed to what were the reasons for their conduct in waiting until the end of the extension period". His Honour also noted (at [28]) that prejudice to a plaintiff as a result of refusing an application for an extension to serve the originating process is a relevant matter and (at [30]) that the fact that creditors were given notice of the application, by service of the application, was a relevant matter. Mr Williams refers to the extension of time for service that was allowed in Liquor National, and points to relevant factors in that application. The position here is quite different from Liquor National, where the liquidator in that case led evidence of its diligent efforts to obtain funding to pursue an investigation and to investigate the matters necessary to obtain a final opinion in relation to the conduct of the litigation. Mr Williams also refers to Kogan v Rogulj, in the matter of Rogulj Pty Ltd (in liq) [2021] FCA 1137 ("Kogan"), which was a liquidator's application to extend the time for service of an originating process under r 1.10 of the Federal Court (Corporations) Rules 2000 (Cth). By contrast, Atradius has not here established that diligent efforts were undertaken to find litigation funding or undertake compulsory examinations at an earlier point, or that litigation funding was necessary to bring the claims.
20. In its "roadmap" of its submissions, Atradius points to its submission that any relevant delay is between the time when its Originating Process was filed and when notice of it was provided to the Defendants, relying on Hastie at [44] - [46]. It seems to me that the length of the delay in service was significant, particularly where it occurs in respect of events that occurred many years before the proceedings were commenced. Mr Williams submits that Atradius has not engaged in any deliberate or unreasonable delay in filing the Originating Process, pointing to Mr Polczynski's evidence that it had sought legal advice in relation to the Arrium Group in January 2017; it had instructed solicitors in the FCA Proceedings from 2017 to March 2019 and it sought litigation funding from December 2018 "until on or around the date that the Originating Process was filed". That submission has the difficulty that, first, it demonstrates the lengthy delay in bringing these proceedings, rather than explaining it. Second, it emphasises the extent to which the issues raised in these proceedings were already known, at the time they were agitated in the FCA Proceedings. Third, it does not explain the delay in obtaining litigation funding, or why such funding was required where Atradius or its parent company plainly has substantial resources available to fund the proceedings for itself. Fourth, that submission does not explain why the proceedings were not promptly served or notice of them was not promptly given to the Defendants after they were filed, where that would not have prevented Atradius pursuing its application to conduct examinations and would likely have avoided the real detriment to the KM Defendants that has resulted from their payment of the final distribution under the Distribution DOCA after the proceedings were commenced but before they were informed of them, a matter to which I return below.
21. Mr Williams also submits that Atradius spent a significant amount of time prior to the filing of the Originating Process in securing litigation funding; however, there is no evidence as to when Atradius commenced seeking such funding or that Atradius devoted any significant time or resources to doing so. Mr Williams also submits that Atradius commenced the proceedings at "the earliest opportunity after litigation funding was secured". However, Mr Polczynski's affidavit does not, as I have noted above, provide any explanation of the steps taken to obtain such funding, or identify when such funding was secured, so as to establish that proposition. In oral submissions, Mr Williams also contended that it was desirable for examinations to take place before substantial costs were incurred in the conduct of the case; I would have generally accepted that proposition, if Atradius had presently articulated a proper claim and persuaded the Court to exercise its discretion to extend the time for service of it. Mr Williams also submits that, in practical terms, this delay has not long delayed the proceedings, where it would have been necessary to serve overseas Defendants in any case. I do not accept that submission, where the proceedings will be delayed by at least six months, beyond the time which would have been required to serve overseas Defendants in any event and that delay occurs where already the proceedings were commenced long after events that are in issue.
22. Ms Whittaker in turn points to matters which are not addressed by Mr Polczynski's evidence and Atradius' submissions as to "(a) why Atradius, as a trade credit insurer, is so impecunious that it requires funding to prosecute either the 2017 SoC or the O[riginating] P[rocess] …; (c) what steps Atradius took to obtain funding between 2018 and "on or around" the date the OP was filed in August 2022, nearly four years later, when they assert by their submissions funding was secured (note also that the exact explanation to when funding was secured differs from their affidavit evidence); (d) the date on which funding was in fact secured; (e) what matters Atradius seeks to conduct examinations about, in circumstances where the pleaded case in the SoC concerns non-disclosure of an enumerated list of facts already known by Atradius, and in that sense is primarily documentary; nor (f) in a similar vein to the forgoing, how examination might expose facts beyond those which they are already aware of, have deposed to in the Lyne Affidavit and received in consultation with [the KM Defendants' legal representatives] prior to and during the [FCA] Proceedings. … Atradius has not put on any evidence of unanswered requests for information from any of the [KM Defendants], nor any other form of deficiency in disclosures or further information required beyond the Lyne Affidavit."
23. Ms Whittaker submits, and I accept, that the position of Atradius, as the subsidiary of an apparently well-capitalised trade insurer, is very different from that of a funded liquidator or administrator, where the later considers it cannot responsibly commence proceedings without external third party funding, which was the position addressed in Tiaro Coal.
24. Mr Collinson also addresses the factors relevant to the exercise of the Court's discretion to extend the time for service of the Originating Process and submits, by reference to authority, that: "Factors relevant to the exercise of the discretion to grant an extension of time include: (1) the reasons for the delay; (2) the length of the delay; (3) whether the delay occurred in circumstances where the plaintiff knew of facts sufficient to enable its claim(s) to be pleaded; (4) whether the delay was deliberate; (5) whether the applicable limitations period has expired; (6) whether notice was given to the defendant; (7) the attempts (if any) that have been made at service; (8) the conduct of the parties generally; and (9) the hardship or prejudice caused to the plaintiff (by refusing the extension) or to the defendant (by granting it). Where an extension of service is sought so that the plaintiff may carry out further work or investigation prior to service, the failure by the plaintiff to explain why such work or investigation was not carried out earlier "provides a strong discretionary ground for refusing … the extensions … sought". [citations omitted]
25. Mr Collinson also submits that no extension of time for service should be granted, with the result that the Originating Process, which is now stale, should be set aside and the proceeding dismissed, for reasons including that: 1. "[Atradius] has failed to proffer an adequate explanation for its delay in pursuing its claims against the defendants; 2. in particular, [Atradius] has failed to proffer an adequate explanation for why the investigations for which it now seeks more time to undertake could not have been undertaken earlier; 3. [Atradius'] delay in pursuing its claims against the Financiers appears to be in large part a result of a deliberate decision (since reversed) not to pursue those claims, as reflected in submissions made in the FCA Proceeding[s]; 4. the six-year limitations period applicable to [Atradius'] claims against the Financiers has now expired."
26. Mr Collinson addresses the first and second of these matters at some length. He submits and I accept that: "The evidence establishes that [Atradius] has known of its purported claims against the defendants since at least 2017. In January 2017, it engaged solicitors (being its present solicitors) to investigate and advise upon claims that Arrium's unsecured creditors might have. In November 2017, those claims (against the Administrators) were articulated in evidence and draft pleadings filed in the FCA Proceeding. In that same context, the contentions that the Financiers were not entitled to the Moly-Cop Unsecured Payment, and that the Financiers were not entitled to prove in the administration for the full amount of the Financier Debt (ie, undiminished by the Moly-Cop Unsecured Payment), were also agitated. … In particular, the Standstill Agreements and the Override Deed, being the impugned agreements the subject of the present proceeding, have been in the possession of [Atradius'] solicitors since at least September 2017, when those documents were served as part of the Administrators' evidence in the FCA Proceeding [and consent was given to their use for other purposes]. The elements of the cause of action now advanced against the Financiers were thus plainly known to [Atradius] by around that time (ie, that: (i) the Financiers had, on 2 August 2016 and 30 September 2016 respectively, entered into the impugned agreements with the Administrators; (ii) the agreements, by their terms, purportedly conferred benefits upon the Financiers without equally benefiting other unsecured creditors; and, (iii) the Financiers entered into the agreements purportedly without first disclosing the agreements to the other unsecured creditors)." [citations omitted]
27. Mr Collinson also points to the limited explanation offered by Atradius of its delay in obtaining litigation funding, and submits that the evidence does not allow the Court to conclude that Atradius made reasonable attempts to obtain litigation funding prior to August 2022. He points out that, as I have also noted above, Atradius does not lead evidence of any specificity as to what attempts were made to obtain funding; when those attempts were made; the results of those attempts, including whether funding was in fact offered to, but declined by, Atradius, and the terms upon which any such funding was offered; the date on which funding was in fact "secured"; or the reasons why the funding that was ultimately secured was not, or could not have been, secured earlier.
28. Mr Collinson also submits that: "In light of the deficient evidence relied upon by [Atradius], the Court could not conclude that [Atradius] acted reasonably in delaying the commencement of its claims until the end of the limitations period, and in failing to complete its investigations into such claims prior to the expiration of the time for service. Nor could the Court accept, on the basis of the evidence, [Atradius'] submission that it "has not engaged in any deliberate or unreasonable delays in filing the Originating Process or commencing the Public Examination Proceeding".
29. I accept that submission, with the qualification that there is an open question as to the application of any limitation period, as distinct from discretionary factors arising from delay, to Atradius' claims under s 90-15 of the IPSC and s 447A of the Act. I also accept Mr Collinson's submission that, here, as in Hastie at [65], the extension sought by Atradius is directed to seeking to allow it to do work that could and should have been done before it became necessary to seek that extension, and that here provides a strong discretionary ground for refusing the extension sought. I also accept that there is further reason not to grant an indefinite extension of time for service where, as Mr Collinson points out, the delay in advancing proceedings inevitably has the result that the quality of justice is diminished: Brisbane South Regional Health Authority v Taylor (2006) 186 CLR 541 at 551-553.
30. It is not necessary to reach a finding as to the third of Mr Collinson's submissions given the findings that I reach on other grounds. I do not accept Mr Collinson's fourth submission, where there is at least an open question whether a limitations period applies to applications under s 90-15 of the IPSC (if Atradius had standing to maintain that application, which it does not) or s 447A of the Act (if Atradius had adequately articulated such a claim, which it has not), although I recognise that the question of delay would be relevant in determining such claims. I also accept Mr Collinson's submission that this decision does not affect creditors other than Atradius. To the extent that any limitation period has already expired, the commencement of these proceedings does not avoid that result, where the proceeding is not a representative proceeding under Part 10 of the CPA and s 182 of the CPA does not apply.
31. I recognise that the prejudice to Atradius of denying an extension is a relevant matter, and should be weighed against the prejudice to the Defendants of allowing that extension. Mr Williams identified (T26) the prejudice which he contends that Atradius would suffer in a denial of an extension of time for service, as follows: "The prejudice to [Atradius] if this application is not allowed is very obvious and very substantial. It is that the significant litigation that it is brought in this court on important and serious matters in respect of which it identifies substantial wrongdoing which had a very substantial financial impact on a large body of creditors, in a large administration, perhaps the largest in this country's history would come to an end by reason of a procedural problem without ever being determined on the merits and in circumstances where it may be that at least some of the claims or matters that would be agitated in this proceeding might be statute barred, were [Atradius] to be required to commence a fresh proceeding. Bearing in mind, of course, that if this proceeding came to an end by reason of this service point, there would not have been an adjudication on the merits, and therefore, the plaintiff would not be prevented from commencing a fresh proceeding to agitate as many of the same issues that it wished to agitate as it's capable of agitating at that time." I have addressed the limitations question raised by this submission above.
32. Mr Collinson also submits that Atradius does not contend that it will suffer any prejudice if the extension of time for service is not granted. Atradius does put that submission as I noted above, although not contending that a limitation period would not prevent the commencement of further proceedings. I accept that Atradius will at least suffer wasted costs and a likely adverse costs order if the application fails, and a possible exposure to future limitations points being taken by the Defendants against it. It is not necessary to address the question whether that prejudice is self-inflicted given the other findings that I have reached.
33. The prejudice to the Defendants of allowing the extension is also a relevant matter. In its "roadmap" of its submissions, Atradius summarises its position as to prejudice to the Defendants as follows: "The [D]efendants suffer no relevant prejudice because: (a) all of the [KM Defendants], and most of the [Financiers] are, in fact, aware of the proceedings and have been for some time …; (b) the absence of prejudice is demonstrated by the fact that both the KM Defendants and most of the [Financiers] have appeared, and taken positive steps to dismiss the proceeding. The Court can assume the same steps would have been taken if the O[riginating] P[rocess] had been formally served within time …; (c) the sixth distribution by the KM Defendants occurred on or around 18 [August] 2022, that is after the O[riginating] P[rocess] was filed, but within the period for which the O[riginating] P[rocess] was valid for service. The overwhelming majority of funds were distributed prior to issue, such that any alleged detriment which occurred is irrelevant to the question of whether the extension is granted ..."
34. I address these matters below. I note, here, that Atradius does not here confront a critical difficulty in its position, namely that a substantial distribution was made by the KM Defendants to claimants, including Atradius, of a size that would have likely met the KM Defendants' costs of defending the proceedings, after Atradius had commenced the proceedings but before it gave notice of them to the Defendants. There can be no real doubt that would not have occurred had Atradius complied with the requirements of r 2.7 of the Corporations Rules, or at least given prompt notice of the commencement of the proceedings to the KM Defendants. I return to the significance of that matter below.
35. Mr Williams submits and I accept that, if a defendant knows that claims have been made against him or her and understands the nature of the claims that have been made, that may mitigate the prejudice the defendant might otherwise suffer by reason of a delay in service: Kirk at [123]. Mr Williams also submits that: "it is not apparent that the [D]efendants will suffer any prejudice by reference to the requested extension of time. The [D]efendants are sophisticated persons and entities and there could not be a reasonable assertion made that their respective record-keeping systems would be compromised by the relief sought. Further, other prejudice such as changing personnel over the passage of time would be incurred even if the proceedings were commenced and made subject to a stay, which Black J held indicated the absence of any real prejudice: Tia[r]o at [58]." I do not accept that submission for the reasons noted below.
36. Ms Whittaker identifies several aspects of prejudice to the KM Defendants arising from the delay in service of the Originating Process. It is sufficient that I note one of them, as follows: "The O[riginating] P[rocess] was filed just prior to the Final Dividend being paid and notice of it was only given to the Liquidators after that dividend was paid. And if any creditor was unhappy with the adjudication of the proofs of debt, that creditor could have objected long prior. Put another way, by the time they were notified, the Liquidators had distributed effectively all money available from the realisation of the assets to the creditors of the Arrium Administration [Companies]."
37. It seems to me that, as Ms Whittaker points out, Atradius' delay in service has here caused real prejudice to the KM Defendants, where it deprived them of the opportunity to hold back a sixth distribution payable to claimants including Atradius, to fund their costs of defence of the proceedings and any damages to which they might potentially be exposed to in them, which I readily infer that they would likely have done had they been given prompt notice of the application, immediately after it was filed. This application is, in that respect, entirely different to the position which I considered in Tiaro at [58]. It also seems to me that it is no answer to that detriment that the KM Defendants had made that distribution before the six month period within which Atradius could have served the 2022 SoC under UCPR r 6.2(4) had expired. First, Atradius was subject to a more demanding service obligation under UCPR r 2.7 and the obligations under CPA ss 56-58, recognised by Ball J in this context in Hastie. Second, that detriment is relevant once Atradius needs the Court's exercise of a discretion in its favour, in order now to serve the 2022 SoC, and it is no answer that the delay may have been less significant had Atradius acted differently. Third, it seems here to me that the prejudice to the KM Defendants is real and irremediable and provides a strong reason not to grant the relief now sought by Atradius.
38. Mr Collinson submits that Atradius failed to notify any Defendant of the claims brought against them prior to the expiration of the limitations period and the Defendants will suffer prejudice if the extension of time for service is granted. I accept that submission in respect of prejudice to the KM Defendants, where they paid out the final distribution without notice of Atradius' claims, and in respect of prejudice to the Financiers where the claim against them is not properly brought for the reasons noted below. Mr Collinson also submits that "[Atradius'] claims [against the Financiers] are liable to be summarily dismissed, such that there would be no utility in extending the time for service." I also accept that submission, given the findings that I reach below as to issue estoppel in respect of Atradius' claims against the Financers below.
39. The parties also addressed the fact that the Originating Process had not been served in the time required under UCPR r 6.2(4)(a), as well as not served in compliance with r 2.7 of the Corporations Rules. I recognise that the fact that Atradius did not serve these proceedings within the six months contemplated under UCPR r 6.2(4) or as required by r 2.7 of the Originating Process partly reflects its application for the relief sought in this application, where Atradius seeks to avoid the need to serve the proceedings. However, that delay was not the inevitable consequence of the application, which could readily have been determined in that six month period. The delay arose because, after Atradius filed the proceedings and later its interlocutory application to defer service, it sought multiple adjournments of the application, on 12 August, 2 September, 9 September, 26 September, 7 October, 31 October and 11 November 2022 before the KM Defendants and Participating Financiers first appeared on 28 November 2022, after they were given notice of the application at the Court's request. By that time, Atradius had already failed to comply with r 2.7 of the Corporations Rules; the KM Defendants had already made the sixth distribution under the Distribution Deed, as I noted above; and Atradius had not yet failed to comply with the six month period for service of the Originating Process under UCPR r 6.2(4). That occurred after Atradius, the KM Defendants and the Participating Financiers agreed between themselves that this application will not be listed for hearing until April 2023, and Atradius did not serve the Originating Process in the interim.
40. Ms Whittaker also identifies several other matters on which the KM Defendants rely to resist the application for an extension of time to serve the Originating Process. Ms Whittaker submits, first, that Atradius failed to ventilate its complaints through the dispute mechanisms or proof of debt processes provided in the DOCAs. I accept that proposition, as a matter of fact, while I also recognise that overlapping disputes were raised in the FCA Proceedings and aspects of them were determined by the FCA. To the extent that other aspects of them were raised, but the FCA did not permit them to be pursued, Atradius then took no steps to pursue them in other proceedings. That, plainly, does not assist Atradius in this application.
41. For the reasons I have set out above in addressing the parties' submissions, and irrespective of the difficulties which I note below with the manner in which Atradius puts its substantive claims, it does not seem to me that Atradius has identified sufficient reason to warrant an order validating the Originating Process, after the time for service has expired, or extending the time for service for any of the alternative periods sought after that has occurred.

Atradius' identification of the basis of its claims in the 2022 SoC

1. I now turn to Atradius' identification of the basis of its claims in the Originating Process and the 2022 SoC. In its "roadmap" of submissions, Atradius identifies its submission that the "O[riginating] P[rocess] invokes this Court's jurisdiction pursuant to s 90-15 of the IPS[C], s 447A, and equity". That proposition requires the substantial qualification that Atradius only seeks substantive relief under IPSC s 90-15, and I address the question of its standing to seek that relief below.
2. Atradius summarises its submission as to the basis of its claims as follows: "(a) A liberal construction ought to be given to the pleading. Infelicity or error in the pleading is not a material consideration. Pleading errors are only of consequence if the Court is satisfied that no arguable claim could be pleaded - i.e. that the pleading is beyond saving by legitimate amendment... (b) The Court is focused on the causes of action asserted and the facts alleged. The extent or availability of the relief sought (especially where equitable relief is sought) ought not be determinative of an application to strike out or summarily dismiss where the facts alleged otherwise give rise to a cause of action … (c) The matters the Court can look to when determining whether there is an available cause of action include the Originating Process, unfiled Statement of Claim, supporting affidavits and both the written and oral submissions made in support of this application that have articulated the causes of action and relief available … (d) The Defendant did not lead evidence to attempt to defeat the uberrimae fidei claim, but rather tried to argue it could not succeed. On that basis the Court must take the facts referred to in the [2022 SoC] at their highest and assess if they are capable of establishing the breach …. (e) each of s 447A, and equity are sufficient basis to ground standing to bring a claim pursuant to the uberrimae fidei duty … or under statute to set aside the DOCAs, and modify their historical effect … . Atradius also submits that it has an arguable case, by reference to what it puts in response to the Defendants' Interlocutory Applications.
3. Ms Whittaker in turn submits that Atradius' Originating Process and the 2022 SoC to which it refers discloses no reasonable cause of action. In developing that submission, she focused on the nature of Atradius' case as disclosed by the 2022 SoC. I will also address the structure of that claim although I recognise that, where Atradius has not been successful in obtaining an extension of time to serve the Originating Process, no order for pleadings will be made and no question of striking out the 2022 SoC or summary dismissal of it arises.
4. In support of her criticisms of the disclosure of Atradius' case in the 2022 SoC, Ms Whittaker refers to my description of the role of pleadings in Iacullo v Iacullo [2013] NSWSC 1517 at [53]-[59]. I also addressed these issues in Re Graziers Pastoral Pty Ltd [2021] NSWSC 1680 at [51] to similar effect. I recognise that, here, I am not determining an application for summary dismissal or a strike out application, because Atradius has not filed its 2022 SoC, but cross-refers to it in the Originating Process to identify, and implicitly support, its claim for relief. I approach the question whether the Originating Process and 2022 SoC identify a tenable claim, not from the perspective of assessing their technical adequacy as pleadings, but as relevant to the Court's exercise of its discretion whether to extend the time for service of a stale Originating Process and grant the other relief sought by Atradius.
5. I now turn to the manner in which Atradius formulates its claim. In Section A of the 2022 SoC, Atradius refers to the companies that compromise the Arrium Group, the appointment of administrators to the Arrium Administration Companies in April 2016, and the appointment of the KM Defendants as administrators of the Arrium Administration Companies. Atradius identifies facility agreements executed by some of the Arrium Administration Companies (2022 SoC [6]). In Section B of the 2022 SoC, Atradius contends that, on 5 April 2022, Stirling assigned to Atradius the right, title and interest in a debt owing to it by the Arrium Group together with any interest that it accrued or may accrue in the future on the debt, and relies on the Stirling Assignment in that respect. That debt was originally owed by one company within the Arrium Group, OneSteel Trading, to Stirling and I will address the question whether it is still owed below.
6. In Sections C and D of the 2022 SoC, Atradius identifies cross-guarantees given by serval of the Arrium Administration Companies and Group Finance Guarantees given by some of the Arrium Administration Companies respectively. In Section E, Atradius refers to the GSO Interim Facility following the commencement of the administration, and the subsequent refinance of that facility through the GSO Replacement Facility by certain of the Financiers on 21 April 2016. Section F refers to unsecured debts payable by the Arrium Administration Companies of approximately $2.8 billion at the commencement of the Arrium administration. Sections G-I of the 2022 SoC refers to the Moly-Cop Entities, which underpin a substantial part of Atradius' claims and (as I noted above) Atradius there acknowledges (2022 SoC [25]) that the Moly-Cop Business could not be sold together as a going concern if the Financiers enforce the Group Finance Guarantees. Section J of the 2022 SoC then acknowledges the fact of default under several finance facilities and Section K identifies a proposal to sell the Moly-Cop Business developed by the KM Defendants after their appointment as voluntary administrators.
7. Section L of the 2022 SoC pleads the KM Defendants' application to the FCA in October 2016, which successfully sought relief to allow them to provide a single aggregated report to creditors of the Arrium Group under s 439A of the Act, and relief as to voting by the Arrium Administration Companies in their capacities as creditors of other Arrium Administration Companies at the Second Creditors' Meeting. Section M of the 2022 SoC pleads the contents of the Aggregated s 439A Report provided to creditors at the second meeting of creditors; section N pleads the conduct of the Second Creditors' Meeting; sections O and P plead the entry into a Distribution DOCA relating to Arrium Distribution Company and Transaction DOCAs relating to the 93 other Arrium Administration Companies; and section P of the 2022 SoC pleads the appointment of the KM Defendants as deed administrators.
8. Section Q of the 2022 SoC pleads the manner in which the Moly-Cop share sale was effected to a third party, and the proceeds of that sale were applied to discharge the GSO Replacement Facility and otherwise made available to the Financiers. There is no suggestion that the proceeds of sale made available to the Financiers exceeded the amount owed to them in respect of the Moly-Cop Entities. Section R pleads the sale of the remaining assets of the Arrium Administration Companies, realising net proceeds of approximately $664 million and section S pleads the payments of dividends to creditors from the Arrium Distribution Fund under the Distribution DOCA.

Atradius' claim for breach of an "uberrimae fidei" duty against the KM Defendants and the Financiers

1. In sections T-V of the 2022 SoC, Atradius pleads an "uberrimae fidei" duty against the KM Defendants and also the Financiers. Paragraph 49 of the 2022 SoC pleads that the KM Defendants, as administrators of the Arrium Administration Companies, owed duties to creditors of the Arrium Administration Companies to conduct themselves with "utmost good faith" and: "not to make any undisclosed stipulation, bargain or arrangement with any creditor of the Arrium Administration Companies that would benefit that creditor without equally benefiting other creditors of the Arrium Administration Companies" ("KM Uberrimae Fidei Duty").
2. Section V of the 2022 SoC in turn pleads a breach of the KM Uberrimae Fidei Duty by the KM Defendants, as follows: "On or about 2 August 2016, without the knowledge of the Aggrieved Creditors, the KM Defendants on behalf of the Arrium Administration Companies and the Financiers executed [the Standstill Agreements] by which Financiers covenanted not to take action against the MC Group Finance Guarantors with respect to the Financier Debt."
3. I pause to note that Atradius here identifies its claim as extending beyond its position as assignee of Stirling's "debt" or as trade insurer, to "Aggrieved Creditors", and that approach is reflected in further aspects of its claim to which I refer below. Atradius' claim for the "Aggrieved Creditors" is not lacking in ambition, where that term is defined in 2022 SoC [8(b)] to mean "approximately 4,000 creditors in the Arrium Administration who are not Financiers …whose aggregate claims in the Arrium Administration total approximately $500 million". As Ms Whittaker points out, although Atradius purports to bring its claims for the "Aggrieved Creditors", there is no evidence that they are on notice of this application and it does not address the extinguishment of their claims and releases granted by them under the DOCAs. Mr Collinson also rightly points out that: "The proceeding is not, however, and does not purport to be, a representative proceeding commenced under Part 10 of the [CPA]. As such, [Atradius] does not have any statutory authority to commence claims "on behalf of" persons who are not parties, including the Aggrieved Creditors. Nor has [Atradius] been appointed to represent any class of creditors in relation to the proceeding, pursuant to Corporations Rule 2.13(5). Even if it had been so appointed, such an appointment would not confer upon the plaintiff statutory authority to deal with any claims or other legal rights that such creditors might have against the Administrators or the Financiers. Such an appointment would not have the effect of converting the proceeding into a representative proceeding under Part 10."
4. In section V.2 of the 2022 SoC, Atradius contends that, on 30 September 2016, without the knowledge of the Aggrieved Creditors, the KM Defendants on behalf of the Arrium Administration Companies entered into the Override Deed with the Financiers and the Moly-Cop Entities and pleads that the effect of that Override Deed was that the KM Defendants were required to pay the whole of the net proceeds of any sale of the Moly-Copy Business to the Financiers, and the Aggrieved Creditors not be paid any part of the Moly-Cop Proceeds ("Moly-Cop Proceeds Exclusion Effect") and the Financiers were entitled to prove in the Arrium Distribution Fund on the basis that they were entitled to the whole of the Financier Debt (as defined) and not required to deduct any amount from their proofs to reflect the payment to them of the Moly-Cop Proceeds ("No Deduction Effect").
5. In paragraph 56 of the 2022 SoC, Atradius in turn pleads that, by executing the Standstill Agreements and/or the Override Deed, the KM Defendants breached the KM Uberrimae Fidei Duty. Section X.1 of the 2022 SoC (paragraphs 58-59) then pleads further breaches of the KM Defendants' duties based on the alleged breach of the KM Uberrimae Fidei Duty. Atradius again does not identify the material facts supporting the premise of the alleged breach or that the Standstill Agreements and Override Deed adversely impacted on the position that would otherwise exist in the deed administration on the sale of the Moly-Cop Business.
6. I turn now to Atradius' similar claim against the Financiers in respect of the alleged uberrimae fidei duty. Paragraph 50 of the 2022 SoC pleads a "Financier Uberrimae Fidei Duty" as follows: "The Financers, as creditors of the Arrium Administration Companies, in negotiating a composition of the debts of the Arrium Administration Companies owed each of the other creditors of the Arrium Administration Companies a duty: (a) to conduct themselves with utmost good faith; (b) not to make any undisclosed stipulation, bargain or arrangement with the KM Defendants that would benefit the Financiers without equally benefiting other creditors of the Arrium Administration Companies."
7. That allegation substantially corresponds with the duty pleaded in paragraph 49 of the 2022 SoC against the KM Defendants. Atradius again alleges that this arrangement was "undisclosed" (2022 SoC [50]) and entered into "without the knowledge" (2022 SoC [51], [53]) of the other creditors. Atradius alleges, at 2022 SoC [51]-[55], that the Financiers breached that duty by entering into the Standstill Agreements and/or the Override Deed, which are alleged to have had the "Moly-Cop Proceeds Exclusion Effect" and the "No Deduction Effect" to which I referred above. That claim corresponds to paragraph 56 of the 2022 SoC pleaded against the KM Defendants.

The parties' summary of their positions as to the alleged uberrimae fidei duties

1. Unsurprisingly, the parties gave substantial attention to the alleged uberrimae fidei duties in submissions, and it is helpful to start with their respective summaries of their positions in their "roadmap" documents.
2. In its "roadmap" of submissions, Atradius submits that "[m]aterial before the Court discloses an arguable case that the Financiers and KM Defendants breached the [uberrimae fidei d]uty", as follows: "There is clear authority for the proposition that a [uberrimae fidei d]uty arises between a debtor and creditors, and between the creditors, when negotiating a composition … Authority also supports the proposition that a [uberrimae fidei d]uty exists in the context of statutory deeds of arrangement, including deeds of arrangement under the [Act] … The content of the duty is a positive obligation to deal in good faith … As a matter of principle, there is no requirement for a creditor to demonstrate breach of the [uberrimae fidei d]uty by reference to a counter-factual in which the aggrieved creditor would otherwise have received the benefit conferred on the preferred creditor. It was not necessary for [Atradius] to show that the Financiers' benefit came from amounts that would otherwise have been available to the aggrieved creditors from the insolvent estate … Further and in the alternative, if such counterfactual is required: (a) … the proceeds from the sale of the MolyCop business, that included the Metpol Asset Loading Effect ([2022] SOC [41]) and the value of the assets of MolyCop Peru ([2022] SOC [20]-[23], [43]-[44]), were not amounts to which the Financiers would have had recourse to the exclusion of all other unsecured creditors: MolyCop Proceeds Exclusion Effect [2022] SOC [54]; No Deduction Effect [2022] SOC [54(c),(d)] … (b) it was open to the defendants to disclose the deal that had been done to all unsecured creditors (not just to the Financiers) by disclosing the effect of the Standstill Agreements and Override Deed. (That did not occur.); (c) on the authorities, following such counterfactual disclosure of the 'deal', unanimous consent by all creditors may be required … (d) alternatively, it was open to the [D]efendants to propose a different DOCA in which the Financiers received nothing more than their pre-existing entitlements."
3. Atradius goes on to contend, in support of this submission, that the material before the Court discloses an arguable claim based on breach of the uberrimae fidei duty on the basis that a benefit was given to the Financiers that amounted to unequal treatment between the same class of creditors, and Atradius has an arguable case that a benefit was conferred upon the Financiers by receiving proceeds of the Moly-Cop sale. Atradius also contends that "[t]he material before the Court discloses an arguable breach of the [uberrimae fidei d]uty (taken together with the inequality between creditors referred to above) on the basis that KM did not disclose the nature and extent of the deal done with the Financiers." It also identifies a submission that relief in respect of a breach of the uberrimae fidei duty does not depend on proof of "but for" causation leading to identifiable loss, as in a common law claim for damages; that that relief is not of a compensatory character, but rather requires disgorgement of gains, akin to a defaulting trustee; and that the relief given by the Court would be to set aside the DOCA and/or the agreement by which the preferred creditor obtained a benefit. I return to aspects of those matters below.
4. Atradius also submits that, if a demonstration of loss arising from the uberrimae fidei breach is required to sustain a remedy, that loss would be measured as the difference between what would have been available to unsecured creditors in a liquidation, or the difference with what would have been obtained in an alternative DOCA in which no party breached its uberrimae fidei duty to other creditors. I pause to note that Atradius does not now identify any basis on which it could properly allege that such a difference exists, or the terms of an alternative DOCA or any factual basis to allow it properly to contend that it could have existed.
5. Atradius also submits that: "In circumstances where the law is unsettled and developing, and an arguable factual case has been established for the breach of the [uberrimae fide d]uty, the case is not one where it is appropriate to terminate the Plaintiff's claim summarily … Moreover, [Atradius] ought to be able to obtain further information to refine or amend its case by way of the scheduled public examination, or at least discovery, before the case is dismissed."
6. I address the issues raised by this submission below. I also proceed on the basis that I am not determining a strike out or summary dismissal application, but instead whether Atradius should be permitted to proceed with an Originating Process that is now stale, which it cannot pursue without the Court's exercise of a judicial discretion in its favour. It is also not apparent why, and Atradius does not lead evidence that explains why, it should now be permitted to undertake investigations, rather than having done so in the several years after it identified and articulated its claim. That proposition raises issues addressed in Hastie to which I have referred above.
7. The KM Defendants also address aspects of this issue, in the context of their submissions relying on Honest Remark Pty Ltd v Allstate Explorations NL (2006) 234 ALR 765; (2006) 58 ACSR 234; [2006] NSWSC 735 ("Honest Remark") which I address below, as follows: "Breaches of the duties pleaded are predicated on parity between creditors (see [2022] SoC [73]), which is insufficient to found a breach or relief because: (i) There is no principle or authority that requires equality of treatment under a deed (as distinct from a composition) (see [Bidald Consulting Pty Ltd v Miles Special Builders (2005) 226 ALR 510] … at [211], [235]-[239]); (ii) The [2022] SoC fails to identify any material prejudice to the "Aggrieved Creditors" … as [of] itself, the different rateable return pleaded at [2022] SoC [73] does not amount to material prejudice; any allegation of material prejudice in this case must include an allegation that the non-Financier creditors would have done better under a winding up as that is the only circumstance in which the deeds of cross guarantee by which non-Financier creditors accessed Moly-Cop Entities became effective; and furthermore, the obligation of the [KM Defendants] to ensure that creditors did better under the DOCAs than under a winding up (contained in cl 19.3 of the Distribution DOCA) also makes it necessary, in the circumstances of this case, for any allegation of material prejudice to include an allegation that the non-Financier creditors would have done better under a winding up than the distribution they have received under the DOCAs. (iii) The [2022] SoC also fails to identify any corresponding benefit to the financiers identified; and (iv) By reason of the foregoing, an allegation that there has been a breach of duty solely by the execution of the Standstill Agreements (as defined) or the Override Deed (as defined) (see breaches pleaded at [2022] SoC [55], [58] and [59]) does not enjoy reasonable prospects of success."
8. It seems to me that Atradius' allegations of breach of a uberrimae fidei duty by the KM Defendants necessarily depend on the premise, unsupported by any identification of material facts in the 2022 SoC, and which Mr Williams could not explain in submissions, that, but for the Standstill Agreements and the Override Deed, the Aggrieved Creditors would have been paid the Moly-Cop Proceeds from the sale of the Moly-Cop Business outside a liquidation. For all the ingenuity deployed in Atradius' submissions noted above, that seems to me to be a necessary premise of that allegation because Atradius does not and cannot explain how a breach of the alleged uberrimae fidei duty could arise from agreements between the Financers and the KM Defendants that did no more than recognise the position that already existed as a matter of law and fact. The 2022 SoC does not identify the material facts that could support that premise, where Atradius accepts the need for the Financiers' consent to such a sale and does not identify how any sale proceeds could otherwise have been distributed without being caught by the guarantees held by the Financiers.
9. This difficulty also arose throughout Mr Williams' oral submissions. I asked Mr Williams to explain how unsecured creditors could have accessed funds from a sale of the Moly-Cop Entities during the course of the deed administration (T41ff). He explained that dividends could have been paid up from those companies to OneSteel America Holdings Ltd and would have become available to unsecured creditors through the ASIC DOCGs; however, that proposition had the fundamental difficulty that it is common ground that the ASIC DOCGs would only be available in a liquidation, rather than in the deed administration. His further submission that those assets could have been distributed further to Arrium Ltd as the ultimate holding company, and then made available to unsecured creditors, did not explain how that possibility was available where the Financiers' guarantees existed in intermediate companies in the Arrium Group, or how those proceeds would have existed had the Financiers not consented to the Moly-Cop Sale in the first place.
10. In oral submissions, Mr Williams also drew attention to an email dated 10 July 2020 from a representative of the Financiers (J1, 5361) which indicated that the Deed Administrators had at one point identified a possible claim by unsecured creditors to a part of the Moly-Cop Proceeds as follows: "Specifically, it was argued by the Deed Administrators that because as at 7 April 2016 (date of appointment of administrators) Moly-Cop Peru S.A.C (Moly-Cop Peru) was not a guarantor of the lender debt, or the direct or indirect subsidiary of a guarantor, it followed that the proceeds of sale of the assets of Moly-Cop Peru (circa $18m) ought to have been made available for distribution to all creditors of Arrium (and not just the lenders). [The Deed Administrator's solicitors] view that the funds flow of the Peru proceeds was directly to the Arrium estate rather than directly to the Arrium lenders under their guarantees. We disagree with this".. There are two difficulties with Mr Williams' reliance on that email. The first is that Atradius does not, in the 2022 SoC or in submissions, identify any basis to think that the view then expressed by the KM Defendants' solicitors was correct or that the view then expressed by the Financiers was incorrect. The second is that that correspondence related to an amount of about $18 million, not the claim of claim of approximately $1.2 billion which Atradius now seeks to pursue.
11. Mr Williams accepted in oral submissions that Atradius sought to establish "impropriety" on the part of the KM Defendants but had considerable difficulty identifying what that impropriety was (T45). He pointed to the pleaded allegations of non-disclosure (T45-46) but then had difficulty in identifying any disadvantage to the unsecured creditors that was said not to have been disclosed. He suggested that unsecured creditors ought to have shared equally in the Moly-Cop Proceeds, again without identifying the factual basis of that premise (T47) as follows: "The sale of the Moly-Cop business, yielded not a single dollar for the benefit of the general unsecured creditors, because it all went to the financiers. Metpol's assets all went to the financiers. So, the result of this transaction was that of those assets that started with Moly-Cop Peru, as an example, and finished up in Metpol, the general body of creditors got no benefit whatsoever in circumstances where but for those steps the general body of creditors would have got a benefit. They would have shared rateably with every other creditor, including the financiers, in the proceeds of those assets."
12. That submission plainly assumed that the Moly-Cop Proceeds could have been obtained without the KM Defendants reaching the agreement with the Financiers which Atradius now attacks, so as to obtain their consent to the sale of the Moly-Cop Business, without addressing how that could occur. Mr Williams then submitted (T47) that the proceeds could have "gone up the chain" and reached OneSteel America Holdings and "there seems no reason why it could not have and should not have formed part of the general body of assets that was available to satisfy all creditor claims". That proposition begs the question of any means by which that may have occurred, which Atradius does not identify in the 2022 SoC or in submissions. Mr Williams then pointed to the possibility that a winding up might have occurred (T47). However, the obvious difficulty with that proposition is that Atradius also does not identify, in the 2022 SoC or in submissions, any basis to contend that unsecured creditors would have been in a better position, in sharing equally in the lesser proceeds of a winding up, than sharing unequally in the greater proceeds that were likely available in the deed administration. I do not neglect Mr Williams' submission that the Override Deed would have impacted on a liquidation, but that does not assist Atradius, where a liquidation did not occur so as to give rise to any such impact.
13. Ms Whittaker pointed to the significance of this issue in opening submissions, as follows: "Another fundamental shortcoming of Atradius' case is that no analysis whatsoever has been put forward of any counterfactual to the DOCA distribution that in fact occurred. It is simply unknown how Atradius says a single creditor could have been better off. The material disadvantage to creditors is said to derive from the mere fact of the difference between the rateable distribution made to the Financiers and the non-Financier unsecured creditors. There is, of course, no requirement under Part 5.3A that all creditors be paid the same rateable amount; and the creditors here all but unanimously voted for that difference. As above, it overlooks that the Financiers had the benefit of guarantees from the Moly-Cop Entities and non-Financier creditors did not."
14. Ms Whittaker then addresses Atradius' articulation of its claim for breach of a uberrimae fide duty as follows:. "Atradius has not identified why the pleaded "Uberrimae Fidei" duty is owed to it as a specific creditor (leaving aside how it could make good that such a duty existed in any event, or that it is a creditor). A duty of care owed to individual creditors, and arising out of the very performance of a liquidator or administrator in that office, would be inconsistent with the statutory scheme of Ch 5 of the [Act]. It is completely opaque from [2022 SoC] [58] and [59] why it is alleged that the so called Uberrimae Fidei duty was breached. Atradius simply states it was breached by reference (at [2022 SoC] [51] to [54]) [to] the terms of certain deeds. That is insufficient to put the [KM Defendants] on notice as to any case whatsoever."
15. Atradius does not here identify the basis of any contention that any effect of the Standstill Agreements or the Override Deed (as distinct from their specific terms) was "undisclosed" so as to breach the duty for which it contends in 2022 SoC [49], where the exclusion of the Moly-Cop Proceeds from the amounts available to unsecured creditors in the deed administration was disclosed in the Aggregated s 439A Report and in the proceedings before the FCA or how it could establish that it would "benefit" the Financiers without benefiting other creditors, where it does not identify any basis on which it altered the Financiers' position in the deed administration.
16. Mr Collinson also submits that the Atradius' claim for a breach of the uberrimae fidei duty against the Financiers does not disclose any reasonable cause of action. On balance, I do not think I should determine this question where it is not necessary to do so to determine the application. Mr Collinson relies on the decision of the Court of Appeal of the Supreme Court of Victoria in Scuderi v Morris (2001) 4 VR 125; [2001] VSCA 190 ("Scuderi"). He observes that, in Scuderi at [58], Chernov JA (with whom Ormiston JA and Buchanan JA largely agreed) summarised the basis on which a composition between creditors could be set aside as follows: '…at general law creditors in a composition contract not only with the debtor but also with each other. The understanding between them is that each will forego the same proportion of the debt due by the debtor. As between themselves and as between each of them and the debtor they enter into the arrangement on the basis of equality in the sense that there is a tacit understanding between them that they will all share in the shortfall and in the distribution of the payment in the same proportions. In such circumstances, there is an obligation on the creditors to act in good faith towards one another in respect of the composition and not make a secret bargain with the debtor or with another acting on his behalf or with his acquiescence, which gives them a greater return in respect of their debt than is to be obtained by the remaining creditors in a distribution. Such a bargain is fraudulent in equity and illegal and thus, unenforceable by the creditor who made it.'
17. Mr Collinson submits, with substantial force, that the essence of an action founded upon this principle is a fraud by one creditor upon the other creditors (referring to Scuderi at [4], [5], [21], [32], [60], [61], [71], [77]) and that such a fraud arises from the "secrecy" of the arrangement between the creditor and the debtor (Scuderi at [15], [24], [30], [58] [69], [70], [77]). He points out that, in Scuderi, Chernov JA recognised at [69] that: "The authorities recognise that a creditor in a composition may, in certain circumstances, properly make an arrangement with another creditor, or the debtor or a third party to be paid a greater amount than other creditors in the composition. … But a secret bargain to that effect was a different matter."
18. Mr Collinson also submits that a claim on this basis is only available where the arrangement between the creditor and the debtor is secret in terms (in that a term of the arrangement is that it be kept secret from other creditors) (referring to Scuderi at [42] and [77]) and secret in fact (in that the creditors must not know of it at the time the relevant contract of composition is entered into) (referring to Re Milner; ex parte Milner (1885) 15 QBD 605 and Scuderi). Mr Williams responds, perhaps ambitiously, that secrecy is not an essential element of the claim to set aside a composition, at least where an inducement given to a particular creditor to secure its vote, referring to Paton v Campbell Capital Ltd (1993) 46 FCR 30.
19. Mr Collinson also rightly emphasises that caution is required in applying this principle to deeds of company arrangement under Pt 5.3A of the Act. He refers to Ormiston JA's observation In Scuderi at [20]-[21]: "These statements of principle, as earlier noted, are not so easily transposable to circumstances where a scheme or deed or other arrangement is entered into pursuant to some statutory provisions relating either to bankruptcy or insolvent corporations. For the most part (and there have been exceptions) the object of those schemes has ordinarily been to bind all creditors of the insolvent individual or company. In a composition everybody must agree but, in the case of statutory schemes and deeds of arrangement, more often than not a prescribed majority is all that is required to impose the obligations on all creditors, certainly where machinery is available to enable a court either to sanction a scheme or arrangement or to set it aside if it is unfair or otherwise undesirable. That brings with it other consequences. Almost invariably all creditors are bound whether or not they vote in favour or at all and whether or not they come in and prove. For present purposes a resolution by majority in number and value is sufficient in relation to deeds under Pt 5.3A…. As I have said, there seems little doubt that in the broadest sense the principles I have been discussing in relation to compositions generally apply to compositions under statute or to schemes of arrangement or the like, although the precise consequences of fraud of this kind depends, at least in part, on the nature of the scheme and the machinery for its implementation."
20. Mr Collinson points out that Campbell J (as his Honour then was) similarly observed in Bidald Consulting Pty Ltd v Miles Special Builders (2005) 226 ALR 510 ("Bidald") at [239]-[240] that: "There are significant differences between the way in which a composition at common law operates, and the way a deed of company arrangement operates. A common law composition operates as a matter of contract between the debtor and those creditors who participate in it, and requires all creditors who are bound by the composition to agree to it. A deed of company arrangement has binding force by virtue of the statute, can become binding if a bare majority of creditors agrees to it, and binds all creditors whether or not they have chosen to vote concerning it. Equality of treatment of all the creditors bound by it is a necessary condition of a composition, while sometime inequality of treatment is permitted under a deed ….'
21. Mr Collinson submits that this claim against the Financiers is not reasonably arguable, because the arrangement said to constitute the "undisclosed bargain" giving rise to the alleged breach of duty was neither secret by its terms nor secret in fact. He submits that the Standstill Agreements and Override Deed did not require the arrangement embodied in those agreements to be kept secret from other creditors, and seeks to read down a generic confidentiality provision in the Standstill Agreements to support that contention, and points to the disclosure of the Standstill Agreements (I interpolate, in general terms) in the Aggregated s 439A report. He points out that the Override Deed did not contain a confidentiality clause, and submits that a restriction upon disclosure of certain price-sensitive information in cl 11 did not impose any obligation upon the parties to keep the terms of the agreement a secret. He submits that the arrangement was not in fact kept secret from creditors, and refers to the disclosure in the Aggregated s 439A Report, specifically that the proceeds of the sale of the Moly-Cop Entities would be paid to the Financiers and would not form part of the Arrium Distribution Fund, and in the terms of the DOCAs. He submits that, on the case law, the relevant time at which to assess whether the arrangement embodied in the Standstill Agreements and the Override Deed was "disclosed" is not the time at which those agreements were entered into, but the time at which creditors agreed to bind themselves to the composition contract, here by approving the relevant DOCAs. He also submits that no fraud upon the creditors arises if the prescribed majority of creditors are aware of the allegedly "secret" arrangement before voting upon the DOCAs: Scuderi at [20]-[21], [70]; Bidald at [239]-[240].
22. In summary, Mr Collinson submits that Atradius has no reasonably arguable claims as to this matter where: "the impugned arrangements entered into by the Financiers with the [KM Defendants] were not secret and were, in any event, disclosed to other creditors prior to voting on the DOCAs; the impugned arrangements were agreed between the [KM Defendants] and the Financiers in circumstances where the Financiers had pre-existing priority rights to Moly-Cop assets - ie: priority over Arrium Group trade creditors, which were not creditors of the Moly-Cop subsidiaries - by reason of the relevant Group Finance Guarantees given by those Moly-Cop subsidiaries; and the impugned arrangements reflected pre-existing rights which the Financiers had obtained well before the administration, through the relevant guarantees."
23. I accept that these submissions have real force, and that Atradius may have faced formidable obstacles to succeeding in this claim at a final hearing, had Atradius either served the proceedings within time or established a proper basis for the Court to extend the time for service; or adequately articulated that claim and had it not been estopped from bringing that claim against the Financers. In that situation, I am inclined to think that I would likely have not struck out that claim or summarily dismissed the proceedings, given the caution with which the Court must exercise those powers and the need for a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way, as emphasised in the appellate authorities: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57]; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 at [46]; Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [24]; Shaw v New South Wales [2012] NSWCA 102 at [30]-[32]; Ren v Jiang (2014) 104 ACSR 149; [2014] NSWCA 388 at [49]. It is not necessary to determine that question, where Atradius has here not adequately articulated that claim, is estopped from bringing it against the Financiers for the reasons noted below, and has neither served the proceedings within time nor established a proper basis for the Court to extend the time for service.

The relief sought against the Financiers and issues of estoppel

1. Turning now to the relief sought by Atradius against the Financiers, Atradius seeks orders (2022 SoC [77]) that the Financiers disgorge and pay to an account in the name of an Arrium Distribution Company as directed by the Court in an amount equivalent to the Moly-Cop Unsecured Payment (as defined) and all amounts which have bene paid to the Financiers as distributions pursuant to the DOCAs, together with interest.
2. The Participating Financiers address the relief sought by Atradius against the Financiers in the 2022 SoC (at [77]). These claims at least have the same difficulties as the claims against the KM Defendants, most fundamentally Atradius' failure to identify the material facts underlying their premise that, but for the Standstill Agreements, Override Deed or other arrangements with the Financiers, the Financiers would not have received the Moly-Cop Proceeds in the deed administration. In the absence of any identified basis for that claim, Atradius has not shown the basis of any claim that the Financiers benefited by reasons of the relevant arrangements, still less that they received the alleged undisclosed benefit or acted other than in good faith in that regard. I also accept Mr Collinson's further submission that the final relief sought against the Financiers plainly could not be ordered, where no attempt is made to set aside the contractual arrangements between the several Arrium Administration Companies and the Financiers and those contractual arrangements entitle the Financiers to obtain the amounts that Atradius seeks to have them return to the Arrium Distribution Company.
3. In their "roadmap" of submissions, the Financiers highlight their contention that: "The claim for relief against the Financiers does not disclose a reasonable cause of action, in that: (a) the DOCAs, the Standstill Agreements, the Override Deed, the Request Consent Report and the [December 2016] Deed Poll give the Financiers a contractual right to retain the payments in respect of which [Atradius] seek[s] disgorgement …; (b) ([Atradius] does not allege that any of those deeds or agreements is void or voidable, and indeed does not seek to impugn in any way the Request Consent Report or the [December 2016] Deed Poll, such that the Originating Process together with the [2022 SoC] does not disclose a basis for the claim for relief against the Financiers ... In order to establish a proper basis for the claim for relief against the Financiers, [Atradius] must establish that, inter alia, the Override Deed, the Request Consent Report and the [December 2016] Deed Poll are void or voidable …"
4. Mr Collinson emphasises in submissions that Atradius does not contend, inter alia, expressly that the Standstill Agreements and Override Deed were or are void or that the Required Consent Report and December 2016 Deed Poll were or are void. Mr Collinson submits and I accept that, absent an application for declaratory or other relief to that effect in the Originating Process and an identification of its basis in the 2022 SoC, Atradius' claim does not disclose any basis for the final relief sought against the Financiers in the 2022 SoC (at [77]), namely disgorgement of the Moly-Cop Unsecured Payment, where that was paid to the Financers in accordance with the terms of DOCAs and by reference to their contractual rights under the Group Finance Guarantees, Standstill Agreements, the Override Deed, the Required Consent Report and the December 2016 Deed Poll; and disgorgement of the distributions paid to the Financiers pursuant to the DOCAs. Mr Collinson also submits and I also accept that, even it is a necessary premise of Atradius' claims that the Standstill Agreements and Override Deed are void, Atradius does not contend that the Required Consent Report and December 2016 Deed Poll are void and each of those deeds gives the Financiers a contractual right, independent of the Standstill Agreements and the Override Deed, to receive the Moly-Cop Unsecured Payment and to prove for the full amount of the Financier Debt in the administration, without deducting the amount of that payment (or any part of it). Mr Collinson submits and I accept that the causes of action identified by Atradius do not support the relief claimed against the Financiers, and I find below that they could not do so given the issue estoppel arising from the FCA Proceedings.
5. Mr Collinson goes further to contend that Atradius not only does not but cannot pursue such relief against the Financiers, by reason of matters that were previously determined in the FCA Proceedings. In their "roadmap" of submissions, the Financiers summarise that contention as follows: [Atradius] is precluded from alleging that the Override Deed, the Request Consent Report and the [December 2016] Deed Poll are void or voidable by issue estoppel, in that: (a) issue estoppel operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in a determination made in an earlier judgment …; (b) the validity of those agreements was necessarily resolved as a step in the determination made by Davies J in the FCA Proceeding[s] (upheld on appeal)…; (c) [Atradius] is the privy of the respondents in the FCA Proceeding[s] (both at first instance and on appeal) … [Atradius] is precluded from alleging that the Standstill Agreements, the Override Deed, the Request Consent Report and the [December 2016] Deed Poll are void or voidable by the doctrine of Anshun estoppel…"
6. In its "roadmap" of submissions, Atradius identifies its response to this issue as follows: "Issue estoppel does not arise: (a) The FCA Proceeding[s] was commenced by the [KM Defendants] seeking judicial advice, and did not result in the parties ventilating claims against each other in the usual way… (b) Further, the judicial advice was narrowed (over the objection of Epic) by the determination of a preliminary question … (c) The preliminary question was a narrow question of contractual construction ... (d) The preliminary question proceeded on the express basis that the operative effect of the impugned documents was reserved. There was no assumption or admission as the validity of the documents being construed - to the contrary there was an express reservation of rights (acknowledged by the Court) about issues beyond the scope of mere construction. Accordingly, no issue estoppel can arise ... (e) The FCA Proceeding[s] did not, and expressly did not purport to, settle "once and for all" the entitlement of the Financers to lodge proofs of debt without deducting the MolyCop Proceeds… (f) In the circumstances, no issue estoppel can be demonstrated …" I pause to note that the "preliminary" question to which Mr Williams refers, likely for rhetorical purposes, would be more accurately described as a separate question, a determination of which was made on a final basis.
7. Mr Collinson submits that an issue estoppel operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the earlier judgment: Blair v Curran (1939) 62 CLR 464 ("Blair v Curran") at 531-533; Jackson v Goldsmith (1950) 81 CLR 446 at 466-467; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 ("Tomlinson") at [22]. He refers to the operation of that principle such that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issues, so that it cannot afterwards be raised between the same parties or their privies": Blair v Curran at 531, approved in Tomlinson at [22].
8. Mr Collinson also submits and I accept that the appellate authorities indicate that an issue estoppel can arise not only in respect of questions decided expressly in the earlier judgment but also where an assumption was fundamental to the earlier decision in the sense that, if the assumption had not been made, the decision must have been different. He refers to Hoysted v Commissioner of Taxation [1926] AC 155 ("Hoysted"), where the High Court had held in an earlier decision (Hoysted v Federal Commissioner of Taxation (1925) 37 CLR 290) that trustees were held entitled to six deductions in their land tax assessment because the life tenants were joint owners. In assessing tax for a later year, the Commissioner of Taxation allowed only one deduction. The Privy Council determined (at 165-166) that an issue estoppel had arisen that required the Commissioner to allow the deductions, although the High Court had not expressly decided the question of joint ownership in the earlier decision: "In the opinion of their Lordships it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgment upon a different assumption of fact; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle. Thirdly, the same principle - namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed."
9. That decision was in turn considered by the High Court in Brewer v Brewer (1953) 88 CLR 1 at 15, where Fullagar J (with whom Dixon J concurred) observed that: 'It is possible that the decision of the Privy Council in Hoysted v. Federal Commissioner of Taxation, has not always been correctly understood, although the headnote to the report of that case states its effect quite accurately, although the point in controversy is made very clear in the dissenting judgment of Higgins J. in the High Court, which received the approval of their Lordships, and although the whole position has been explained by Somervell L.J. in In re Koenigsberg; Public Trustee v. Koenigsberg. In Hoysted's Case the Commissioner was not merely seeking to raise on the second appeal a point which he might have raised but had omitted to raise on the first appeal. He was seeking to raise a point which could not be decided in his favour consistently with the decision on the first appeal. The point had not been argued on the first appeal, and there was therefore no express decision on the point. But the Commissioner had allowed it to be assumed against him, and the assumption was fundamental to the decision in the sense that, if the assumption had not been made, the decision must have been different. As Somervell L.J. said: - "He was therefore seeking to obtain an order which was on the face of it and in form in direct conflict with the order which had been made previously". The point in question had been "the groundwork of the decision itself, though not then directly the point at issue" (per Coleridge J. in Reg. v. Township of Hartington)." [emphasis added] [citations omitted]
10. In Ekes v Commonwealth Bank of Australia (2014) 313 ALR 665; [2014] NSWCA 336, Bathurst CJ in turn observed (at [112]) that "An issue estoppel will only arise in respect of those matters which a primary decree, order or judgment necessarily established as the legal foundation for the decision and nothing but that which is legally indispensable to the conclusion is thus finally closed or precluded … In the case of a judgment by consent this may be productive of some difficulty … a court will examine all evidence that is available and admissible and with the aid of such material ascertain any and what adjudication of matters in dispute was expressly or necessarily involved in the actual decision assented to."
11. Mr Collinson submits that when Davies J decided the construction question in the FCA Proceedings, Epic (then representing the trade creditors, and a privy of Atradius as Mr Williams accepts) allowed it to be assumed against them that at least the Standstill Agreements and the Override Deed were valid and operative legal instruments, which the Court proceeded to construe on that basis. Mr Williams responded by detailed reference to the circumstances in which the FCA Proceedings arose and continued, and I have had regard to his submissions in that respect. They do not seem to me to assist Atradius where the FCA determined the construction of at least the Standstill Agreements and the Override Deed in the FCA proceedings, on the necessary basis that they were operative and effective and that is, in my view, sufficient to give rise to an issue estoppel. The determination of that question, as a separate question, is no less determinative than any other determination of that question on a final basis, and Atradius (as privy to Epic and Rexel) is bound by the outcome.
12. It seems to me that the FCA plainly determined the FCA Proceedings on the basis that at least the Standstill Agreements and the Override Deed were valid and operative legal instruments, and construed those agreements on that basis. That basis or assumption was fundamental to the FCA's decision in the sense described in Hoysted because, if not for that assumption, the FCA's decision must have been different. Conversely, if the operative effect of those agreements was left open by the FCA, then its decision would have been no more than an advisory opinion directed to the contingency that those agreements might mor might not one day be found to have operative effect. The FCA did not qualify its decision in that manner. Had the FCA decided that matter on so fragile a basis, third parties could not have relied on that decision because its fundamental premise could later be challenged, including, as here, in proceedings brought long after the event. Mr Collinson submits and I accept that an issue estoppel and not merely an Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589) arises from the FCA Proceedings.
13. I recognise that there is some earlier authority, although the parties did not refer to it, that, where the basis for "issue estoppel" has been made out, the Court retains an overriding discretion to permit the proceedings to continue, although this discretion is likely to be exercised only in exceptional circumstances: Arnold v National Westminster Bank plc [1991] 2 AC 93; [1991] 3 All ER 41 ("Arnold"); Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 at 30; [2001] 1 All ER 481 at 498 per Bingham LJ. In O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 258; [1991] HCA 14, Brennan J characterised the decision in Arnold which identified such a discretion as resting on an "uncertain foundation", and the Court of Appeal arguably left the existence of such a discretion open in Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2006] NSWCA 322. In Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International (2021) 389 ALR 612; [2021] FCAFC 77 at [339], the Full Court of the Federal Court rejected that principle, observing that: "[In Arnold] Lord Keith envisaged that "there may be special circumstances where estoppel does not operate". If his Lordship is to be taken as permitting of such an exception in an Anshun estoppel situation, we have no difficulty with it. But if he is intending to apply it to what we would consider to be a res judicata or a true issue estoppel (see (b) above), we would disagree. There is no such principle under Australian law. The High Court has not in any ratio or considered majority dicta ever gone so far. And it is not appropriate for an intermediate appellate court to so innovate (see also Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2006] NSWCA 322 at [487] per Tobias JA).
14. In State of New South Wales v Hardy (Final) [2021] NSWSC 900 at [177]-[178], Johnson J noted, by reference to Counsel's submissions, that: "[Counsel] noted authority which suggests that there may be a more general exception to the operation of the principles relating to issue estoppel arising from "special circumstances" where estoppel does not operate: Arnold v National Westminster Bank plc [1991] 2 AC 93 at 108-109. It was noted that the applicability of such an exception has not been considered by the High Court of Australia and that intermediate appellate courts have either stated that there is no such exception to issue estoppel under Australian law or have doubted the existence of such an exception: Commonwealth v Cockatoo Dockyard Pty Ltd [2006] NSWCA 322 at [434]-[437], [460]-[487]; Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International (2021) 389 ALR 612; [2021] FCAFC 77 at [339]."
15. If the discretion or exception identified in Arnold was available here, it does not seem to me that it could properly be exercised in Atradius' favour, given the stark inconsistency between the basis on which the FCA proceeded and the position for which Atradius would now have to contend; its long delay in seeking to challenge the effectiveness of the Standstill Agreements and the Override Deed, if it now seeks to do so; and the lack of utility in that challenge where it does not seek to avoid the Required Consent Form and December 2016 Deed Poll.
16. In submissions in chief, Mr Collinson also addresses the principles of Anshun estoppel, in support of a claim that the proceedings against the Financiers should now be dismissed or stayed. Atradius summarises its position in its "roadmap" of submissions, namely that Anshun estoppel is not established; the Financiers cannot demonstrate that it was unreasonable not to bring this claim in the FCA Proceedings; the evidence demonstrates that some claims made in this proceeding were attempted to be prosecuted in the FCA Proceeding and were dismissed without determination on the merits for procedural reasons; and the additional claims now advanced (in particular the claims made against the Financiers) would have met the same fate. It is not necessary to address these submissions, or Mr Collinson's response to them, given the conclusions which I have reached on other grounds.

Atradius' claim for breach of other duties against the KM Defendants

1. Atradius also pleads other duties and advances other claims against the KM Defendants which are not put against the Financiers. Section W of the 2022 SoC pleads several duties owed by the KM Defendants to the Arrium Administration Companies, including general law and statutory duties. I proceed on the basis that those pleadings are not, strictly, in the nature of a derivative claim, because Atradius does not seek relief under those sections, but invokes them in support of a claim under s 90-15 of the IPSC (if it had standing to maintain that claim, which I find below that it does not) or under s 447A of the Act (if it had articulated such a claim, which it largely has not).
2. Section X.2 of the 2022 SoC pleads a breach by the KM Defendants of a "legal and ethical duty" to disclose material facts in respect of the October Application (as defined). In their "roadmap" of submissions, the KM Defendants contend that: "The Disclosure Breaches concerning the "October Application" (those at [2022] SoC [61] to [63]) do not enjoy reasonable prospects of success as [a]ny obligations were complied with; [t]he Application Disclosure Duty was owed to the Court, not creditors, and the proper forum for any complaint is in the proceedings in which non-disclosure is alleged; [t]here is no relief sought in relation to those breaches in any event; and Atradius does not identify how the insolvency practitioners as distinct from the legal practitioners acting for them could possibly have a duty of full disclosure, and in what circumstances the insolvency practitioners are said not to have complied to such a duty as distinct from relying upon their legal practitioners."
3. Ms Whittaker in turn submits that: "With respect to the alleged "October Application Breach" (at 2022 SoC [61] to [62]), it would be a matter of supposition to try to conclude how that results in any of the alleged final relief against the Liquidators. Further, the alleged breach of duty arising from that so called disclosure duty (at [63]) simply particularises the difference in the rateable distribution between the Financiers and the other unsecured creditors (at [73]). A difference in the rateable distribution cannot of itself found any breach of any duty. This is insufficient to "ensure the basic requirements of procedural fairness" are met."
4. Atradius' formulation of this claim does not identify to whom this duty is said to have been owed, although it is implicit that it was at least owed to the FCA. Atradius contends that certain "material" facts were not disclosed to the Court, but the allegation of the materiality of the relevant facts largely depends upon the impact of the Standstill Agreements and terms of the Moly-Cop Sale, and Atradius again does not identify the material facts supporting any claim that they had any material impact in the deed administration. Atradius there pleads (at 2022 SoC [61(l)]) that the Override Deed would have had an impact on a winding up of the Arrium Administration Companies, but that has the difficulty noted above, that winding up did not occur. Atradius also identifies (at 2022 SoC [61(n)]) other material facts that the KM Defendants are alleged not to have disclosed, including that, "by reason of the Override Deed", the Moly-Cop Proceeds Exclusion Effect and the No Deduction Effect there was "likely to be a significant difference in the rateable returns achieved by the KM Defendants for the Financiers and the Aggrieved Creditors". Atradius also contends the "Application Omitted Disclosure Conduct" breached the "Application Disclosure Duty" (as defined in a manner that gave rise to breach of statutory duties (2022 SoC [62]-[63]).
5. The alleged breach of the duties pleaded in section X.2 of the 2022 SoC all have the premise, again unsupported by any identification of material facts in the 2022 SoC, that the Moly-Cop Proceeds would have been distributed differently in the deed administration but for the Standstill Agreements or the Override Deed. That difficulty arises in respect of the alleged non-disclosure of the material fact that the return to Financiers had been improved by reason of these matters, which turns on an assumption not supported by any identification of material facts that the Financiers did not have a right to access those funds in any event. The allegation as to breach of the Application Disclosure Duty also depends upon the assumed materiality of the matters alleged to have been not disclosed, which largely or entirely depend on the premise that the Standstill Agreements or the Override Deed altered the position which would otherwise have occurred in the deed administration. As I have noted above, Atradius does not seek to identify the material facts supporting that premise.
6. In section X.3 of the 2022 SoC, Atradius identifies (2022 SoC [64]) an alleged "duty" owed by the KM Defendants, presumably alleged to be owed to creditors, in respect of the Aggregated s 439A Report. A number of allegations of non-disclosure are made as to the contents of that report, which turn, substantially if not entirely, on the premise that the agreements with the Financiers had an impact on the position that would otherwise have existed in respect of a sale of the Moly-Cop Business in the course of the deed administration, had those agreements not existed.
7. In section X.4 of the 2022 SoC, Atradius pleads that the KM Defendants breached a duty, presumably alleged to be owed to creditors, to execute DOCAs that would give effect to the Sale and Recapitalisation Strategy (as defined) reported and recommended to creditors in the Aggregated s 439A Report. Atradius then contends that the DOCA failed to do so, but this also appears to assume that the relevant agreements either altered the Financiers' position that would have otherwise existed in the deed administration, or the position as to the Financiers' ability to prove in a liquidation, and the material facts underlying those assumptions are not identified in the 2022 SoC.
8. The alleged breach of the duties pleaded in sections X.2, X.3 and X.4 are all pleaded by reference to an allegation that the deed administration brought about an "outcome for the Financiers [that] was materially better than the outcome for the Aggrieved Creditors", which is particularised by reference to Section Y below. I now turn to that section. In section Y of the 2022 SoC, Atradius contends (2022 SoC [73]) that: "The conduct of the Arrium Administration and the administration of the DOCAs by the KM Defendants has resulted in a material disadvantage to the Aggrieved Creditors in that, despite all being unsecured creditors of the [Arrium Administration Companies]: (a) the Financiers have been distributed approximately 70 cents in the dollar in respect of the debts owed by the [Arrium Administration Companies] to the Financiers at the commencement of the Arrium Administration; and (b) the Aggrieved Creditors have been distributed approximately up to 24 cents in the dollar in respect of the debts owed by the [Arrium Administration Companies] to the Aggrieved Creditors at the commencement of the Arrium Administration."
9. Ms Whittaker submits that: "In relation to [2022 SoC [73]), being the basis of the breaches referred to above, the allegation is that the difference in the rateable distribution between the Financiers and the other unsecured creditors has resulted in a "material disadvantage" to the other unsecured creditors. Why, in the circumstances, that difference constitutes a "material disadvantage" is not explained. Embedded in that proposition must be that the non-Financier unsecured creditors could have achieved a better rateable return in some other, unidentified scenario, about which the pleading says nothing. If there is such a scenario, the [KM Defendants] ought know it, and if there is not, there is no reasonable cause of action."
10. Ms Whittaker goes further, to submit not only that Atradius' claim at 2022 SoC [73] disclosed the case that the KM Defendants have to meet, but also that that case is untenable. She observes that: "As the Webster Affidavit makes clear, the Moly‑Cop Entities had liabilities greater than their assets, and therefore a nil or negative enterprise value and a nil or negative equity value in the hands of the Arrium Group. To enable those entities to be sold as a going concern, the [KM Defendants] were therefore required to agree standstills with the Moly‑Cop Entities' financiers to avoid the crystallisation of claims that would put the Moly‑Cop Entities into an insolvency process of their own. Further, any sale of the Moly‑Cop Entities relied upon the consent of the Financiers. This was so as the Financiers could have claimed against the Moly‑Cop Entities pursuant to the Group Guarantees, and the Financier's debt exceeded the value of the Moly‑Cop Entities. So much is in fact pleaded by Atradius; at [25] of the SoC it pleads that the Moly‑Cop Business (as defined) "could not be sold together as a going concern if the Financiers enforced the Group Finance Guarantees". It is difficult to understand, in those circumstances, what more the [KM Defendants] could have done. Their choice was either to not agree a standstill with the Financiers and therefore destine the Moly‑Cop Entities to an insolvency process of their own, or, agree a standstill and preserve the potential for the Moly‑Cop Entities to be "sold together as a going concern" (as Atradius pleads)."
11. Mr Williams' responds by emphasising the unequal distribution between the Financiers and other unsecured creditors as pleaded in this paragraph. In submissions in reply, he observes that: "Material inequality is pleaded at [2022 SoC] [73] where it is alleged that the Financiers obtained distributions approximating 70 cents in the dollar, while the Aggrieved Creditors obtained approximately 24 cents in the dollar. The existence of the obligation of utmost good faith imposed on both the [KM Defendants] and Financiers as creditors cannot be doubted. Although the duty has been said to arise in common law, in equity, and as a matter of public policy, the unifying rationale is to safeguard equality between creditors."
12. It is not necessary to decide whether a duty of that width exists, as a matter of law, having regard to the case law dealing with compositions or the statutory basis on which a deed of company arrangement can be set aside, including Bidald at [235] and [237], on which Mr Williams places particular emphasis. For the reasons noted above, it seems to me that Atradius has not identified the material facts necessary to support any claim that the "inequality" in the distribution as between the Financiers on the one hand and other unsecured creditors involved any breach of a duty of good faith or any more specific duty applicable to compositions between creditors.
13. Mr Williams also submits that the "prejudicial" effect of the Standstill Agreements and the Override Deed is "explained" as the "Metpol Asset Loading Effect" (as pleaded at 2022 SoC [41]) and by the Moly-Cop Proceeds Exclusion Effect and the No Deduction Effect (as explained at 2022 SoC [54]). The difficulty with that proposition is again that Atradius identifies no material facts to explain how or why the entry into the Standstill Agreements and the Override Deed had any impact on the distribution of proceeds which would not have existed had those agreements not been executed, as I have observed above. Mr Williams also submits that the assets obtained by the Metpol entities, and through them the Financiers, came from Moly-Cop Entities but were not subject to the Finance Debt (as defined) and "therefore would not have been available to meet claims by the Financiers if they had called upon the Group Finance Guarantees", referring to 2022 SoC [40]. That proposition also depends upon undisclosed material facts supporting an assumption that, in a deed administration rather than a liquidation, the proceeds of sale of the Moly-Cop Business could have been distributed from the Moly-Cop Entities to Arrium Ltd or an intermediate subsidiary in a manner that would have allowed unsecured creditors to take the benefit of them without the Financiers having access to them under their guarantees.
14. It seems to me that this contention, which is in turn adopted to support other claims in Sections X.2-X.4 of the 2022 SoC to which I referred above, depends on the premise that the Financiers recovered more in the deed administration than the "Aggrieved Creditors" by reason of the sale of the Moly-Cop Entities. However, as will be apparent from my observations above, the 2022 SoC does not identify the basis of its fundamental premise, that the Aggrieved Creditors could, but for the entry into the Standstill Agreements or the Override Deed, or the conduct of the Arrium administration and the DOCAs, have received an equal distribution to the Financiers in the deed administration, given the Financiers existing rights in respect of the Moly-Cop Entities and the fact that the ASIC DOCGs did not allow any benefit to the unsecured creditors outside a liquidation. The 2022 SoC also does not identify the basis of any allegation of any disadvantage to Aggrieved Creditors by comparison with the likely outcome in a liquidation, where it does not plead any material facts indicating that the amount of Aggrieved Creditors' share of the liquidation proceeds, even on a pro rata basis with the Financiers, would have exceeded the amount of their lesser share in the (likely greater) proceeds achieved under the DOCAs.

The Honest Remark approach

1. The KM Defendants also contend that the Court should not extend the time for service of the Originating Process because a reasonable decision maker would not grant the relief that is sought under s 90-15 of the IPSC on the basis of the allegations identified by Atradius. This submission invokes the approach taken by Brereton J (as his Honour then was) in Honest Remark, in dealing with an application for summary dismissal of an application to appoint a mutual purpose administrator to investigate certain transactions. His Honour there reviewed (at [4]) the circumstances which an order for summary dismissal would be made and then observed (at [5]-[6]) that: "Where the substantive proceeding is for discretionary relief, it is inappropriate to embark on an application for summary dismissal that requires an examination of the whole of the merits to determine whether a discretion could possibly be exercised in favour of the plaintiff: Commercial Banking Co of Sydney Ltd v Pollard [1983] 1 NSWLR 74 . However, a court is not precluded from making an order for summary dismissal where, taking the plaintiff's case at its highest, it is apparent that the plaintiff must fail. Thus, if it can be shown that any exercise of discretion in favour of granting the relief sought by the plaintiff would involve error of the kind described in House v R (1936) 55 CLR 499 at 505 , then the case is one in which summary dismissal may be granted, notwithstanding that discretionary relief is involved. Such a conclusion may be reached either because, on the plaintiff's case taken at its highest, some essential pre-condition to jurisdiction or power to grant the relief sought is absent, or because, even though there is power to grant the relief, the court's discretion could only reasonably be exercised by declining it. Accordingly, the present application is to be approached by considering whether, taking Honest Remark's case as pleaded at its highest, there is no power to grant the relief that it seeks, or whether, if there were such power, it would be manifestly unreasonable to grant it, and bearing in mind the caution that a first instance court should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that, as the law develops, it will be found that a cause will lie: Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365; Edwards Karwacki Smith & Co Pty Ltd v Jacka Nominees Pty Ltd (in liq) (1994) 15 ACSR 502 at 507-8."
2. In their "roadmap" of submissions, the KM Defendants summarise the matters on which they rely for this submission as follows: "The Court would not grant any indulgence to serve an O[riginating] P[rocess] which sought relief that no reasonable decision maker would grant. There is no authority in which leave has been granted to serve a claim which did not disclose a reasonable cause of action. No reasonable decision maker would grant the relief sought by Atradius in the [2022] SoC (at [2022] SoC [74]), in the circumstances of this case, as: The modifications of the DOCAs sought (see [2022] SoC, 74) are [u]nspecified; and [u]navailable in any event as the DOCAs have been effectuated and the companies are in liquidation or sold (including OneSteel Trading …). An order for the payment by the [KM Defendants] of [US]$1.024 billion plus interest (see SoC, 74) would be a House v The King (1936) 55 CLR 499 error (see Brereton J in Honest Remark at [6]). [T]he delay in filing the O[riginating] P[rocess] and seeking the relief pleaded at [2022] SoC [74] has the result that no reasonable decision maker would grant the relief sought. Furthermore, any reasonable decision maker would consider that there is no public interest in having the conclusion of administrations delayed by such a claim at a time when the final distribution has been made and the DOCAs effectuated. In the circumstances of Arrium - where the businesses were sold - this would be antithetical to the purposes of part 5.3A and undermine public confidence in the operation of the part."
3. They also contend that the 2022 SoC does not disclose a reasonable cause of action, referring to Honest Remark at [6], and refer to matters which I have addressed above in respect of the alleged breach of an uberrimae fidei duty and of the other duties alleged against the KM Defendants.
4. I have addressed several of the matters relied on in these submissions above. I largely accept this submission, although I do not accept any proposition that the mere size of a claim is a reason that a reasonable decision-maker would not allow it. The difficulty here is, instead, that Atradius pursues the purported claim for US$1.024 billion, after a long delay, although it was not and is not a creditor of OneSteel Trading, still less of other companies within the Arrium Group, and quantifies the amount claimed by reference to claims of other creditors whose claims have been extinguished under the Distribution DOCA, without making any attempt to establish that it should be permitted to pursue these proceedings on behalf of those other creditors. It also seems to me that, on the findings that I have reached above, no reasonable decision maker could make the orders sought by Atradius on the case that it presently articulates in the 2022 SoC, where there is no apparent basis for a claim that unsecured creditors could have had the benefit of the disposal of the Moly-Cop Proceeds, which could only occur with the Financiers' consent, without complying with the Financiers' requirements for giving such consent; nor for a claim that unsecured creditors could have obtained access to the Moly-Cop Proceeds in a deed administration (as distinct from a liquidation); nor for a claim that a liquidation in which unsecured creditors would have had access to such proceeds under the ASIC DOCGs would have allowed a better financial return for unsecured creditors than a deed administration.
5. Ms Whittaker also submits (T91) that, in exercising a discretion whether to grant relief under ISPC s 90-15 (if Atradius had standing to seek that relief) or under s 447A of the Act, a reasonable decision maker would have regard to the fact that all of the relevant funds had already been distributed by the KM Defendants to creditors and, I would add, the last of those distributions had taken place after Atradius had commenced the proceedings but before it gave notice of them to the KM Defendants. The final distribution paid by the KM Defendants was approximately $16m (Ex J1,5573), and that is plainly a significant amount which would have been available to them for the defence of the proceedings, which has now been lost to them. As Ms Whittaker points out, that amount would also have been sufficient, had it been available to the KM Defendants, to meet a large part of the claim by Atradius concerning the distribution of the proceeds of the sale of assets of Moly-Cop Peru, approximately $18 million, on which Mr Williams put some weight in the submissions, to which I referred above (T99). I accept that a reasonable decision maker would also treat that matter as a significant obstacle to the making of the orders now sought by Atradius. In oral submissions, Ms Whittaker puts that proposition simply enough, that: "The Court would not exercise its jurisdiction within the parameters of ss 56-60 of the CPA to grant any indulgence directed towards the preservation of such a fundamentally deficient pleading or claim" (T100).
6. Ms Whittaker also submits that the deficiencies in the pleading have the result that Atradius cannot meet the test articulated by Brereton J in Honest Remark, because no reasonable decision maker could grant the relief that Atradius seeks (T105). I accept that these several matters would also support a denial of the relief now sought by Atradius.
7. I should also identify a further issue which became increasingly apparent as oral submissions in this matter proceeded. In their "roadmap" of submissions, the Participating Financiers point to their submission that Atradius' Originating Process (which states that "[Atradius] claims… [t]he relief sought in the [2022 SoC]") and the 2022 SoC do not in fact reflect the claims that Atradius now seeks to put. There is substantial force in this submission. As Mr Williams developed his oral submissions, those submissions and Atradius' case as formulated in the 2022 SoC increasingly diverged, as Mr Williams identified claims and bases for relief that were not put in the 2022 SoC. That is a troubling matter, where Atradius seeks the Court's intervention to allow it to serve a stale Originating Process, including on Financiers situated outside Australia which were not represented at the hearing. The Financiers who were not represented at the hearing could reasonably understand that the 2022 SoC, to which reference is made in the Originating Process that Atradius seeks to serve on them, identifies the case they have to meet, rather than being only a starting point from which Atradius' case (as articulated in Mr Williams' submissions or to be developed after further investigations) will depart. That matter also tends against the grant of the relief that Atradius seeks.

Atradius' standing to seek relief under s 90-15 of the IPSC

1. In Section Z of the 2022 SoC, Atradius identifies the relief which it seeks against the KM Defendants, as sought under s 90-15 of the IPSC rather than on any other basis. The KM Defendants' contend that Atradius does not have standing to seek that relief. In order to determine whether Atradius has an arguable case that it has standing under IPSC s 90-15, I must first address the standing requirements under s 90-15 of the IPSC; second, the effect of the Stirling Assignment on which Atradius relies; and, third, the question whether Atradius can establish standing on a wider basis, if it is not a creditor of OneSteel Trading.
2. Turning first to the question of the standing requirement under IPSC s 90-15, in their "roadmap" of submissions, the KM Defendants point to their submission that Atradius' standing under IPSC s 90-15 depends on it being a "creditor", since standing under s 90-15 is extended to those who have a "financial interest" within the meaning of s 90-20, as exclusively defined by s 5-30; and submit that Atradius is not a creditor of OneSteel Trading or any other Arrium Administration Company and does not have standing under IPSC s 90-15. In its "roadmap" of submissions, Atradius in turn relies on the Stirling Assignment, which I will address below, to contend that "Atradius is a creditor and has standing to seek relief pursuant to 90-15 of the IPSC pursuant to 90-20(1)(a) of the IPS[C]… " [emphasis added]. I pause to note that, at its highest, Atradius' reliance on the Stirling Assignment would establish that it was previously but is no longer a creditor of a single company in the Arrium Group, OneSteel Trading.
3. Relevantly, s 90-20 of the IPSC provides that specified persons may bring an application for an order under s 90-15 of the IPSC and notes that two categories in that list could be relevant, namely a person with a "financial interest" in the external administration of the company; and, if the committee of inspection (if any) so resolves, a creditor, on behalf of the committee. The second category is not relevant here, since there has been no resolution of a committee of inspection for Atradius (or Stirling) to make any application. As to the first category, s 5-30 of the IPSC provides that: "A person has a financial interest in the external administration of a company: (a) if the person is one of the following: (i) the company; (ii) a creditor of the company; (iii) an external administrator of the company; (iv) in a members' voluntary winding up - a member of the company; or (b) in any other circumstances prescribed."
4. The term "creditor" is in turn defined in 5-5 of the IPSC, when used in relation to a company under external administration, as "a creditor of the company", which plainly adopts the meaning of that term at general law. The parties approach the question whether Atradius is a creditor, not by reference to any question of the scope of that concept at general law, but by reference to the question whether OneSteel Trading owed a debt to Atradius by reason of the Stirling Assignment. The KM Defendants contend that Atradius is not a creditor of OneSteel Trading because it was not assigned any debt by Stirling under the Stirling Assignment, and is not a creditor of any Arrium Administration Company entity and therefore falls outside of 5-30(a)(ii). There is no suggestion that any other relevant circumstances prescribed for the purposes of 5-30 apply.
5. Whether Atradius was a creditor of OneSteel Trading at an earlier point in time depends on the operation of the Stirling Assignment, to which I now turn. In their "roadmap" of submissions, the KM Defendants point to their submission that Atradius did not become a creditor of OneSteel Trading as a result of the Stirling Assignment, as: "(a) The SoC only pleads standing as a creditor of the Arrium Administration Group by reason of the [Stirling Assignment]; (b) The [Stirling] Assignment could not operate to assign anything more than a claim in debt by Stirling against OneSteel Trading … (the "Debt Claim"). (c) As at the date of assignment on 5 April 2022, the Debt Claim had ceased to exist as it had been exchanged for an Entitlement under the Transaction and Distribution DOCAs to participate in a distribution under the Distribution DOCA. (d) It is clear that the DOCAs ought be construed this way by reason of the commercial objectives recorded in the 439A report which included the sale of the Arrium business through sale entities without liabilities. (e) Also, it would be commercially nonsensical for the DOCAs to be construed in a manner that enabled a creditors' debt claim to co-exist with an entitlement under the DOCAs. (f) In any event, even if there was some residual right to the Debt Claim which was capable of being assigned to Atradius after the lodging and adjudication of Stirling's proof of debt (which is denied), any such right ended on 31 August 2017 upon the sale of OneSteel Trading and the termination of its [T]ransaction DOCA, or on payment of the final dividend under the Distribution DOCA, because the claim was released pursuant to cl 20.2(a) and (c) of the Arrium Distribution DOCA and 21.2(a) and (c) of the Transaction Support DOCAs; (g) The [Stirling] Assignment did not operate to assign Stirling's general rights under Part 5.3A, and could not assign Atradius status as a creditor."
6. Atradius summarises its response to this submission in its "roadmap" of submissions as follows: "Stirling validly assigned Atradius a debt for the following reasons: (a) In the Transaction Support DOCA, Schedule A defined "Claim" to include "in relation to the Company any…debts...arising directly or indirectly from any… circumstance…occurring on or before the Appointment Date"; (b) The effect of clause 21.1 of the Transaction Support DOCA was to oblige Creditors (which at the time of entry in the DOCA included Stirling) to accept their Entitlement under the DOCA in "full satisfaction and complete discharge of all Claims"; (c) The effect of clauses 21.2(a)-(b) was that upon a Creditor being paid their full Entitlement under the DOCA, their Claims were extinguished; (d) The effect of clauses 21.2(c)-(d) was that when the time came for the Final Dividend to be paid from the Arrium Distribution Fund, all the Creditor's Claims against inter alia, the Company would be extinguished; (e) Accordingly, at all times (i) prior to Creditors being paid their full Entitlement under the Transaction Support DOCA and (ii) before the final dividend was paid to creditors from the Arrium Distribution Fund, Creditors possessed both an Entitlement under the DOCA and separately a debt; (f) Terms of the DOCA prevented a party from prosecuting a Claim for such a debt during the period of the DOCA and after would be barred once released: cll 6.1; 21.4. (g) Stirling assigned its debt to Atradius prior to Atradius (previously Stirling) receiving its full Entitlement under the DOCA, and prior to the final dividend being paid out of the Arrium Distribution Fund; (h) Following the assignment, Atradius received the final dividend payment from the KM Defendants …; and (i) Accordingly, Atradius was validly assigned Stirling's debt pursuant to the Deed of Assignment and commenced this proceeding before any Entitlement was alleged to have been extinguished"…".
7. I address these issues below. It is important to note that, at the highest, Atradius' submission supports the proposition that Atradius was previously owed a debt, by reason of the Stirling Assignment, for the short period between the Stirling Assignment and the payment of the sixth dividend shortly after these proceedings were commenced, but before Atradius gave notice of them to the KM Defendants. No attempt is made, or could be made, to establish that Atradius is now owed a debt, at the time it seeks the Court's exercise of a discretion to extend the date for service of the stale Originating Process in its favour.
8. Ms Whittaker submits that Atradius did not obtain the status of a "creditor" of the Arrium Group by reason of the Stirling Assignment. It is, of course, self-evident that Atradius was not a creditor of a company group, since Australian law does not generally recognise that concept, and the real question is whether it became a creditor of a single company in that group, OneSteel Trading, by reason of the Stirling Assignment. Ms Whittaker submits that, on the KM Defendants' adjudication of Stirling's proof of debt, any "Claim" under the DOCAs was exchanged for a right to an "Entitlement" under the DOCAs, and Stirling then had no "Debt" to assign. Ms Whittaker here distinguishes between Stirling's contractual right to claim a debt, acquired by performing services or supplying goods to OneSteel Trading as reflected in the invoices annexed to the Deed of Assignment ("Debt Claim"); and the rights that Stirling acquired under the statutory contract formed by the Transaction Support DOCA entered into by OneSteel Trading under which it was a "Creditor" ("Creditor Rights").
9. Ms Whittaker also refers to the terms of the Stirling Assignment, which I addressed in the chronology set out above. She submits and I accept that the assignment effected under the Stirling Assignment was of the Debt Claim arising from the supply of goods by Stirling to OneSteel Trading, and that assignment was not directed to the Creditors' Rights arising under the DOCAs. Ms Whittaker rightly notes that the 2022 SoC proceeds on that basis, by pleading Stirling's debt and then that Atradius was transferred Stirling's right title and interest (both legal and beneficial) in that debt, by reference to the Stirling Assignment, but not seeking to advance any claim that Atradius was a party to the DOCAs or had rights as a creditor under the DOCAs. For most practical purposes, the difference would not matter, since one would expect an insolvency administrator to treat the claims in the external administration as following any assignment of a debt that existed when the external administration commenced, and the KM Defendants took that pragmatic approach in making distributions to Atradius after they received notice of the Stirling Assignment. It is not necessary to address the KM Defendant's further submissions that Stirling's rights under the Distribution DOCA could not be assigned, because the Stirling Assignment did not purport to assign those rights, as distinct from any debt that was owed by OneSteel Trading to Stirling at the date of the assignment.
10. Ms Whittaker submits, and I accept, that Stirling's Debt Claim against OneSteel Trading is a "Claim" as defined in the Transaction Support DOCA entered into by OneSteel Trading and that Stirling was a "Creditor" and an "Arrium Group Creditor" under that DOCA and the Distribution DOCA. That term is defined to mean "any person who has a Claim against the Company, being a Claim the circumstances giving rise to which arose on or before the Appointment Date". Ms Whittaker points out that Stirling lodged a proof in respect of its Debt Claim against OneSteel Trading on 10 November 2016 and cll 18 and 19 of the DOCAs provided for the process of adjudication on that proof. Following that adjudication, cl 19.2 of the DOCAs provided for an "Entitlement" to a Creditor (as defined) to payment out of the Arrium Distribution Fund for their accepted proofs of debt in accordance with the order of priority. The term "Entitlement" is defined in cl 19.1 of the DOCAs as the distributions to be received by the Creditor as declared under the DOCAs by the KM Defendants, which is contingent on the amount in the Arrium Distribution Fund and the order of priority for payments. Ms Whittaker notes that, on 20 August 2017, Stirling's proof was adjudicated and the KM Defendants determined that $58,667.77 was owing, so that Stirling had an Entitlement to that amount from the Arrium Distribution Fund in accordance with the order of priority.
11. Ms Whittaker then draws attention to cl 20.1 of the Distribution DOCA and cl 21.1 of the Transaction Support DOCA which provide: "Release of Claims in exchange for Entitlement All Arrium Group Creditors having an Arrium Group Claim must accept their Entitlement under this DOCA in full satisfaction and complete discharge of all Arrium Group Claims which they have or claim to have against the Arrium [Administration] Companies and the Arrium Distribution Fund". [Emphasis added]
12. In oral submissions, Mr Williams responded that cl 21 of the Transaction Support DOCA had the consequence that a release, discharge and extinguishment of Stirling's debt did not take place until after the relevant distribution was made (T166). He accepted that that proposition would have the consequence that, immediately after the approval of the Transaction Support DOCAs and the Distribution DOCA, Stirling and other creditors each had two overlapping entitlements, the first being the entitlement to be paid its original debt, and the second being an entitlement to be paid the distribution under the Distribution DOCA calculated by reference to the amount of the amount of that original debt (T166). He also accepted that it also had the consequence that, at the time the operating companies were sold to third parties, their debts to former trade creditors had not been extinguished, as was the apparent intent of the Transaction DOCAs (T166). Obviously, these are very odd consequences indeed and I do not accept that clause had that effect.
13. It seems to me that the effect of this clause was to release or discharge Stirling's debt owed by OneSteel Trading in "exchange" for the "Entitlement" that Stirling obtained to be paid the amount admitted to proof from the Arrium Distribution Fund. As Ms Whittaker points out, s 444H(a) of the Act in turn provides that a DOCA releases the company from a debt only in so far as the deed provides for the "release" of the debt. I also accept that the release and discharge in this clause is not deferred to the point that Stirling received a dividend from the Arrium Distribution Fund, as a matter of construction of the clause in its commercial context. The contrary view would have the untenable result that, at least until a creditor (relevantly, Stirling) received its dividend, or the last of its dividends, it was owed both its original debt by the Arrium trading company (relevantly, OneSteel Trading) and also had its Entitlement against the Arrium Distribution Fund for the same amount. Ms Whittaker puts a similar point in a wider and more colourful way as follows: "This conclusion also follows as a matter of commercial understanding of the purpose and effect of the DOCAs. They are designed to capture Claims that existed prior to the appointment date (which are either proven for or abandoned), adjudicate the proofs of those Claims to determine the Entitlement, and then make distributions to holders of those Entitlements upon funds being recovered to do so. It would be to entirely defeat this process if pre-appointment Claims (or some part thereof) could continue in legal purgatory while having already been converted into an Entitlement to a Distribution or abandoned. … In summary, upon adjudication on the Stirling Proof, the DOCAs converted Stirling's Debt Claim into an Entitlement. Such a conclusion is, with respect, obvious. The purpose of deeds of company arrangement is to draw a line in the sand on claims against the company under administration, enable a compromise of those claims, and then either realise the assets of the company through a sale process, or continue to trade. It would be entirely otiose to those aims if a creditor were to have the residual of its claim beyond that which it received an Entitlement as a separate legal right that could be litigated against the company. As soon as the administration ceased the company would be forced back into it by reason of the onslaught of unsatisfied claims."
14. Ms Whittaker submits, and I accept, that cl 20.1 of the Distribution DOCA and cl 21.1 of the Transaction Support DOCA, consistently with s 444H(a) of the Act, converted the Debt Claim that Stirling had against OneSteel Trading into an Entitlement under the Distribution DOCA, when its proof of debt was adjudicated on 20 August 2017, and Stirling then ceased to have the Debt Claim and ceased to be a creditor of OneSteel Trading.
15. Ms Whittaker also submits that, on the termination of the OneSteel Trading Transaction Support DOCA, any "claim" against OneSteel Trading was no longer a claim against an Arrium Administration Company and, on payment of the Final Dividend on 17 August 2022, Stirling (and Atradius) lost any rights that it had. It is not necessary to deal with the first of those contentions, given the conclusions that I reach on other grounds. The second depends on cll 20.2(a) and (c) of the Distribution DOCA and 21.2(a) and (c) of the Transaction Support DOCA which provide that: (a) If the Deed Administrators have paid to an Arrium Group Creditor its full Entitlement under this DOCA, all of its Arrium Group Claims (to the extent not already extinguished by the Deed Administrators pursuant to this DOCA or the Other Arrium DOCAs) are released, discharged and extinguished. … (c) On payment of the Final Dividend from the Arrium Distribution Fund, all Arrium group Claims of any Arrium Group Creditor are released, discharged and extinguished.
16. These clauses seem to me to reinforce the operation of cl 20.1 of the Distribution DOCA and cl 21.1 of the Transaction Support DOCA, but operate at a later point, when the Entitlement is paid rather than when it arises. I accept that these clauses have the effect for which Ms Whittaker contends. Mr Collinson also relies on the release, discharge or extinguishment of claims, at least from when a final dividend was paid under the Distribution DOCA on 17 August 2022.
17. For these reasons, Stirling had no debt to assign at the date of the Stirling Assignment, and Atradius is not a creditor of any Arrium Administration Company by reason of that assignment. First, as I noted above, Stirling ceased to have the Debt Claim and ceased to be a creditor of OneSteel Trading when its proof of debt was adjudicated on 20 August 2017 and it obtained its Entitlement as against the Arrium Distribution Fund. Second, even if I were incorrect in that finding, and Atradius was arguably a creditor of OneSteel Trading at the time that it commenced these proceedings, the release, discharge and extinguishment of that debt under cl 20.2 of the Distribution DOCA took effect when Stirling (and Atradius as its assignee) had received its final distribution from the Arrium Distribution Fund, which occurred after the Stirling Assignment and shortly after the proceedings were commenced, but before they were served. There is no suggestion that Atradius could be in a better position than Stirling in that respect. Neither Stirling nor Atradius is now a creditor of OneSteel Trading and the fact that Stirling and Atradius (as its assignee) is no longer a creditor means that it no longer has standing to seek relief under s 90-15 of the IPSC. There is nothing surprising or unreasonable about that result, where there is no reason to think that Stirling or Atradius as its assignee should have such standing after its debt and its claims under the Distribution DOCA have been converted to an Entitlement against the Arrium Distribution Fund and then discharged. Since Atradius is not a creditor of any Arrium Administration Company, it does not have standing to maintain its claim for relief under s 90-15 of the IPSC on that basis.
18. The third question is whether Atradius has standing under s 90-15 of the IPSC on a wider basis, that does not depend on its being a creditor of OneSteel Trading. In its "roadmap" of submissions, Atradius identifies its further submission that: "Further, or alternatively, as a matter of construction, Atradius is "a person with a financial interest in the external administration of the company" pursuant to 90-20(1)(a) of the IPS[C] because it is the trade credit insurer of numerous creditors of companies the subject of the proceeding …".
19. Mr Williams submits that s 90-20 of the IPSC does not exhaustively define the persons who have a "financial interest" in the external administration of a company, but simply identifies a number of persons who have such an interest and does not prevent a claim by another person who falls within the ordinary meaning of the words "a person with a financial interest in the external administration of the company". Mr Williams submits that Atradius, as the trade credit insurer of several creditors of the Arrium Administration Companies, is plainly such a person. In oral submissions, Mr Williams points out that Atradius is at least a party with a financial interest in the external administration, where it has paid out claims of its insureds in respect of the administration (Ex J1, 5567; T158-159).
20. I accept that Atradius was at least indirectly affected by the conduct of the administration, deed administration and liquidation, in its capacity as a credit insurer of trade creditors of Arrium Administration Companies, but not that it has a "financial interest" in the administration, deed administration and liquidation, in the sense required for standing under s 90-15 of the IPSC. First, it seems to me that the legislature has sought to limit the persons who have standing to bring or maintain an application under s 90-15 of the IPSC, by s 90-20 of the IPSC and Atradius is not a creditor of any relevant Arrium Administration Company, particularly where the final distributions under the Distribution DOCA have been completed. Second, it seems to me that there is no reason to give that section wider application, particularly so as to extend to persons whose commercial interests may be indirectly affected by the conduct of an external administration, which would extend to a large class of persons, including lenders and employees of creditors and persons who have other commercial relationships with creditors of a company in external administration. Third, even if an extended basis for standing was available under s 90-15 or s 90-20 to such persons, it does not seem to me that Atradius has such standing, after the final distribution has been completed and the claims of former creditors of the Arrium Administration Companies under the Distribution DOCA have been satisfied and discharged. I am comfortably satisfied that Atradius does not have standing to seek the relief sought under s 90-15 of the IPSC and that defect in its Originating Process and claim is incurable.

The nature of the relief sought by Atradius under s 90-15 of the IPSC

1. I now turn to the nature of the relief sought by Atradius under s 90-15 of the IPSC. Paragraph 74(b) of the 2022 SoC seeks an order that the KM Defendants pay to an account in the name of Arrium Distribution Company as directed by the Court an amount equivalent to the Moly-Cop Unsecured Payment which it appears is a claim for approximately US$1.024 billion. Ms Whittaker submits that: "In relation to the final relief pleaded (at [2022 SoC] [74]), there is no reasonable prospect of a Court ordering the Liquidators to pay 1.024 billion USD with interest into an account (see [2022 SoC] 74). The authorities support the proposition that whilst s 90‑15(1) of the IPS[C] is broad, the Court will not exercise its discretion in a manifestly unreasonable way. It is not unimportant that s 90‑15(4) of the IPS is a qualifying provision - identifying five matters in (a)-(e) a court may take into account when making orders. These matters all expressly concern liquidators."
2. Paragraph 74(c) of the 2022 SoC seeks an order that the DOCAs be modified in accordance with directions to be made by the Court, but does not address how that is to be done where the DOCAs have now been effectuated and the relevant companies are now deregistered or in liquidation. No attempt is made in that paragraph to identify what modification to the DOCA is sought or what directions are to be sought from the Court, or any factual basis for making such directions. Mr Collinson speculates that: "It may be inferred that the modifications at least include removing the provision in the DOCAs that otherwise provide that the Moly-Cop assets and any shares in the Moly-Cop entities held by the relevant company are not available to pay any entitlements or claims and do not form part of the Arrium Distribution Fund." I do not consider that I should join in that speculation, where it is a matter for Atradius properly to identify the relief which it seeks, particularly where it now seeks the exercise of the Court's discretion in its favour to validate proceedings that are otherwise stale.
3. Paragraph 74(d) of the 2022 SoC seeks an order the KM Defendants be replaced as administrators of the DOCAs, notwithstanding that the companies are now in liquidation rather than in deed administration. Ms Whittaker submits, in respect of an application to replace the KM Defendants as liquidators which Atradius has not brought, that: "Without any proper basis, Atradius seeks the replacement of the Liquidators. Atradius do not stipulate how new liquidators will be funded. It is not open to a party to try to side-step the jurisprudence about the very specific circumstances in which an administrator will be replaced, or a special purpose liquidator appointed. Nor can Atradius avoid, through seeking non-specific relief, the Court's long-standing reluctance to review commercial decisions made by an external administrator acting bona fide." I need not address that submission in order to determine this application, both because that relief is not sought by Atradius and because of the findings that I have reached on other grounds.
4. Ms Whittaker also submits that Atradius has also not demonstrated that there is "sufficient utility to the external administration" to justify the use of 90-15, where the final distribution has been made and the vast majority of companies are either sold, or wound up and deregistered. It is not necessary to address these further submissions where I have found that Atradius is not a creditor of any Arrium Administration Company for the reasons noted above.
5. For completeness, the Participating Financiers also contend that the Court lacks power to grant the relief claimed by Atradius, because the relief claimed in SoC [76], which they contend is integral to the claim for relief against the Financiers, is sought under s 90-15 of the IPSC; s 90-15 does not empower the Court to make orders in respect of a company that is not in external administration, and of the 94 companies in respect of which Atradius seeks relief under s 90-15, only 12 are in external administration, where the remainder having been fully wound up and deregistered or sold; s 90-15 does not empower the Court to vary the terms of a DOCA; and the exercise of the power under s 90-15 to vary the terms of the DOCAs in the manner sought by Atradius would be antithetical (and therefore extraneous) to the objects of the IPSC, and as such the relief sought is outside the scope of s 90-15. These submissions raise important issues, but it seems to me that it is preferable that those questions be deferred to a case in which it is necessary to decide them.

Atradius' reliance on s 447A of the Act

1. The KM Defendants contend that Atradius also lacks standing to seek relief under s 447A of the Act. In their "roadmap" of submissions, the KM Defendants point to their submission that: "To the extent that Atradius' standing under s 447A is relevant (which is denied because no relief is sought under s 447A beyond the inclusion of s 447A into the DOCAs…), the only basis for standing under 447A articulated in the [2022] SoC is as a creditor. Atradius does not have standing under s 447A as a creditor (for the same reasons as above). To the extent that the Court is prepared to entertain the issue of whether Atradius is an "interested person" under s 447A (despite there being no articulation of such a claim by the O[riginating] P[rocess] proposed to be served): The economic interest of a trade creditor is too indirect or derivative to found such an interest within the meaning of the statute. It is distinguishable from, for example, the rights of FEG. Atradius has not established the extent of its interest in any event. It is unclear on the evidence what impact the relief sought would have on Atradius."
2. In its "roadmap" of submissions, Atradius in turn points to its response that it has standing under s 447A(4)(f) of the Act as "any other interested person", because it has paid out to insureds who were creditors, relying on Allatech Pty Ltd v Construction Management Group Pty Ltd (2002) 41 ACSR 587 (Allatech") at 591 and Commonwealth v Rocklea Spinning Mills (2005) 145 FCR 220 at [20]. Atradius also relies on a submission that: "the relief available under s 447A extends beyond that in the [2022 SoC], but is sufficient to ground standing for Atradius to raise its breach of the [uberrimae fidei d]uty claim, and obtain relief modifying the operation of Part 5.3A and setting aside the DOCAs (despite their termination), relying on QBI Corp Pty Ltd v Plantation Rise Pty Ltd (2010) 77 ACSR 573 at [42]-[55] ["QBI"]… The fact that all that relief is not currently spelt out in the [2022 SoC] ought not be determinative of the application where the Court can otherwise identify an arguable cause of action from the material filed including submissions…"
3. Ms Whittaker here points out that s 447A(4) prescribes the list of persons who may apply for relief under the section and that Atradius is not a "creditor" of any Arrium Administration Company and does not satisfy 447A(4)(b). I accept that submission for the reasons noted above. She also submits that Atradius is also not an "interested person" for the purposes of s 447A(4)(f). She rightly acknowledges that that expression "is of wide scope and should be construed liberally": Allatech at 591; Re Nillumbik Community Church Inc (in admin) [2010] VSC 136 at [30]. However, she submits that Atradius is a "legal stranger" to the administration, the Arrium Group, the KM Defendants and the Financiers and that, by contrast with Habrok (Dalgaranga) Pty Ltd v Gascoyne [Resources Ltd (subject to Deed of Company arrangement) (2020) 149 ACSR 1; [2020] FCA 1395 ("Habrok") at [401]-[403], Atradius does not have any economic interest in the operation of the DOCA as it was not assigned Stirling's debt and lacks any financial interest in the outcome of the DOCA. She also submits, relying on Hoath v Comcen Pty Limited (2005) 53 ACSR 708 that, even if Atradius is an "interested person" or "creditor", as it was not as such at the time of the conduct complained of, it was not within the class of creditors or interested persons to which s 447A is directed.
4. As I noted above, Mr Williams submits that Atradius has standing to bring an application under s 447A of the Act, and relies on Allatech at 591 for that proposition. Mr Williams notes that Austin J there drew upon the test for standing in administrative law cases, where a person must demonstrate an interest beyond a mere member of the public and observed at [21] that: "In my view, the words "other interested person" in s 445D(2) are intended to encompass applicants whose material rights or economic interests are or may be affected by the operation or effect of the deed of company arrangement which they seek to challenge, at least where the effect is substantial."
5. I will assume, without deciding, that such an interest might be established on that basis, even where the claims of creditors under the DOCAs have been discharged and the DOCAs effectuated. I therefore leave open the possibility that Atradius is arguably an interested person because of its economic interest as the credit insurer of several trade creditors of Arrium Administration Companies, and it had that role at all relevant times. That does not advance Atradius' position, where it does not adequately identify the factual basis for any claim under s 447A of the Act that supports the relief sought.
6. Paragraphs 75 and 76 of the proposed 2022 SoC are the only point at which Atradius invokes s 447A of the Act, in seeking to modify Pt 5.3A of the Act so that the IPSC applies or the former s 536 of the Act applies, if the IPSC would otherwise not apply. No party presently suggests that the IPSC does not apply. It became increasingly apparent in Mr Williams' oral submissions that Atradius would put greater weight on that section, as its lack of standing under s 90-15 of the IPSC emerged, and Mr Williams identified the possibility that the Court would have jurisdiction to grant relief under s 447A by reference to the case law. Mr Williams also submits that the Court has power to invalidate the DOCAs under s 447A of the Act, rather than modifying the DOCAs. The submission does not assist Atradius, where it has presently not sought such relief and, even if it did so, makes no claim that the documents which allow the Financiers the right to the Moly-Cop Proceeds should be set aside.
7. It seems to me that the 2022 SoC does not connect the identified facts to, or provide any indication how the very broad remedies sought would be supported by, an exercise of the Court's jurisdiction under s 447A of the Act. The only claims under s 447A of the Act that are identified in the 2022 SoC do not support the relief sought in the 2022 SoC and incorporated in the Originating Process. Even if Atradius has standing to pursue a claim under that section, the fact that it has not identified its factual basis and how it supports the relief sought is a further reason not to extend the time for service of the Originating Process, referring to the relief sought in the 2022 SoC, in its present form.
8. It is not necessary to address Mr Collinson's further submission that s 90-15 of the IPSC does not confer a power on the Court to grant relief adverse to the Financers, given the narrow relief that Atradius presently seeks under that section and the conclusions I have reached on other grounds.

Atradius' claim to relief under s 536 of the Act

1. The Originating Process also seeks relief under s 536 of the Act. That section has been repealed and Mr Williams did not contend that it had any transitional application in the present facts. I need not address the claim under that section further.

Atradius' claim to relief in equity

1. Atradius identifies a claim for relief in equity in the Originating Process. Mr Williams also suggests, possibly, that the Court may have power to set aside the arrangements with the Financiers in equity, although Atradius does not seek to have the Court do so or identify any factual basis on which it could do so in the Originating Process or the 2022 SoC to which it refers.
2. Ms Whittaker responds that the 2002 SoC pleads that the KM Defendants owed the KM Uberrimae Fidei Duty to creditors (with the duty pleaded at 2022 SoC [49], with the alleged breach pleaded at 2022 SoC [55]-[56]); the "Diligence", "Good Faith" and "No Advantage" duties owed to the Arrium Administration Companies (with the duty pleaded at 2022 SoC [57] and the alleged breach pleaded at 2022 SoC [58] and [59], and also relied on at 2022 SoC [63], [67], and [72]); and an alleged "Application Disclosure Duty", implicitly owed to the Court (with the duty pleaded at 2022 SoC [60] and the alleged breach pleaded at [62]); a "439A Report Duty" to the creditors (with the duty pleaded at [64] and the alleged breach at [66]); and a "DOCA Execution Duty" which does not specify to whom it is owed (with the duty pleaded at [68] and the alleged breach at [71]). I have noted several difficulties with the form of those claims above.
3. Ms Whittaker submits that Atradius lacks standing to bring those causes of action, presumably on the assumption that they are properly characterised as claim to relief in equity rather than matters relied on to support the claim under IPSC s 90-15 which I have addressed above. Ms Whittaker submits and I accept that the KM Uberrimae Fidei Duty and 439A Report Duty are pleaded to be owed to creditors and, as Atradius is not a creditor, it does not have standing to bring such a claim against the KM Defendants, assuming such a claim could properly be treated as a claim in equity. She submits that the Diligence, Good Faith, and No Advantage Duties would be owed to the Arrium Administration Companies, and that Atradius does not explain how it has standing to pursue a claim on behalf of one or more of those entities, all of which have been sold or deregistered, other than for nine that are in liquidation and controlled by the KM Defendants as their liquidators. I bear in mind that a derivative claim may be available in equity, although Atradius has not presently sought to establish that it should be permitted to pursue it.
4. Ms Whittaker also submits that the Application Disclosure Duty is pleaded to be owed to the Court and, if anyone has standing to bring an action for breach of that duty, it would be a party to the proceeding in which that duty applied. She accepts that a creditor or other party to the DOCAs might fall in that category but submits that Atradius is neither, and no right to such a claim was assigned by the Stirling Assignment. Ms Whittaker also submits that the DOCA Execution Duty is not pleaded to be owed to any group in particular and is not maintainable on that basis, and that Atradius is not a party to the DOCAs and therefore has no standing in respect of any right or interest arising under their terms. She submits that Atradius lacks standing to seek any relief "in equity", and that that head of relief in the Originating Process should be "struck out and summarily dismissed".
5. It seems to me preferable not to decide the question of Atradius' standing to bring claims "in equity", where it is not apparent that any of these claims, with the possible exception of the claim referable to the uberrimae fidei duties, are properly characterised as equitable in nature. It seems to me that, for the reasons noted above, Atradius largely does not adequately identify the factual basis for such claims in the 2022 SoC, or how they support the relief sought, and that is a further reason why the Court should not now permit the Originating Process to be served out of time.

Releases, exclusion of liability and exclusive jurisdiction clauses

1. Ms Whittaker also submits that these proceedings are barred by the DOCAs as they are in breach of the releases and exclusion of personal liability clauses.
2. In its "roadmap" of submissions, Atradius identifies its several responses to this submission, namely: ""Neither the termination of the DOCA, nor the releases in the DOCAs provide a bar to obtaining relief, nor would determination of those issues on a summary basis be appropriate. Relief under s 447A of the [Act] is wide enough to modify the effect of Part 5.3A to ensure that the terms of the DOCAs do not provide an obstacle to necessary relief: QBI [at] [47]-[55]. Further, or alternatively, releases are limited to those matters specifically in the contemplation of the parties at the time the release was given and must be construed having regard to the circumstances to which the relevant instrument was intended to apply. The current claim brought by [Atradius] is not one in the contemplation of the parties, and was not a Claim arising out of circumstances on or before the Appointment Date (as defined in the DOCAs). Additionally, the question of whether the releases in the DOCA for pre-administration claims can be relied on where [Atradius] has an arguable case that the Defendants during the administration breached the [uberrimae fidei d]uty, or whether the releases can be relied on, or ought to be read down or construed in accordance with those circumstances, is not an issue which should properly be determined on a summary dismissal application … Further, or alternatively, it is not open to the Court to determine on a summary basis that the releases relied upon by the KM [D]efendants in cl 21.2 of the Transaction Support DOCA, or cl 20.2 of the Distribution DOCA are effective. Those releases must be construed in light of cl 19.1 (a) & (b) of the Transaction Support DOCAs (including the reference to Other Arrium DOCAs) and cl 19.3 of the Distribution DOCA. Construed together, the Court could not conclude that the releases are effective until the KM Defendants have undertaken the process required by cl 19.3 of the Distribution DOCA to ensure the aggrieved creditors are not "materially and unfairly prejudiced", compared to a liquidation ... No evidence has been led by the KM Defendants that they have undertaken the work required by cl 19.3. Nor has evidence been led by the KM Defendants as to the position of unsecured creditors in liquidation in order for the Court to determine the question of material or unfair prejudice … Further even if such evidence had been led, it is not a matter the Court would determine on a summary basis ... Further, or alternatively, a plaintiff against whom a release is pleaded by way of defence, can possess an equity to restrain an unconscientious reliance on general words in a release by a defendant. If [Atradius] has an arguable case that the Defendants have breached the [uberrimae fidei duty], the question of whether the releases operate as a defence to the Defendants' claims are unsuitable for determination on summary dismissal …"
3. Mr Williams in turn submits that, so far as the KM Defendants and the Financiers rely on releases under the DOCAs, the Court could grant relief under s 447A of the Act to ensure that the terms of the DOCAs do not provide an obstacle to relief, and refers to QBI Corp Pty Ltd v Plantation Rise Pty Ltd (2010) 77 ACSR 573 in that respect. I will assume, without deciding, that such a claim may be available and that Atradius may have standing to advance it, although it is not presently advanced in the Originating Process or the 2022 SoC to which it refers. Mr Williams also raises the possibility that the terms of the releases might be read down by principles of construction or in equity, referring to cases including Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112; [1954] HCA 23 and the decision of the Court of Appeal in Reid v Commonwealth Bank of Australia [2022] NSWCA 134.
4. It is not necessary to address the release provisions of the Distribution DOCA and the Transactional Support DOCAs, to which the KM Defendants refer, having regard to the conclusions which I have reached above on other grounds.

Abuse of process

1. The Participating Financiers also contend that the proceedings, or alternatively the claim for relief against the Financiers, is an abuse of process. They provide in their "roadmap" of submissions that: "the claim for relief against the Financiers does not disclose a reasonable cause of action, in that the impugned arrangement reflected in the Standstill Agreements and Override Deed cannot give rise to a breach of the alleged 'uberrimae fidei' duty by the Financiers, because the arrangement: (i) was neither secret in terms nor secret in fact; (ii) did not confer a relevant advantage upon the Financiers or relevantly disadvantage the other creditors."
2. I have addressed that issue in dealing with Atradius' formulation of its claim for breach of that duty above.
3. The Participating Financiers also contend that Atradius lacks standing to seek the relief it claims in the Originating Process (by reference to the 2022 SoC), in that it is not "a person with a financial interest in the external administration of" the 94 companies in respect of which it seeks orders under s 90-15 of the IPSC; Atradius claims relief "on behalf of the Aggrieved Creditors", but the proceeding is not a representative proceeding, and Atradius has no authority to commence or pursue claims on behalf of other persons; and Atradius is not a person to whom the 'uberrimae fidei' duty allegedly breached by the Financiers was owed, because it was not a creditor who participated in "negotiating a composition of the debts of the Arrium Administration Companies" (SOC [50]), and the claim for relief for breach of such duty was not validly assigned to it by Sterling.
4. Atradius summarises its response in its "roadmap" of submissions, namely that the proceeding should not be stayed as an abuse of process, because Atradius has not engaged in forensic manoeuvring for its advantage; and nothing about the prosecution of the claim would bring the administration of justice into disrepute, but rather litigation of an important and serious matter in respect of substantial financial impact on a large body of creditors warrants determination on the merits.
5. I have addressed these issues in dealing with the exercise of the Court's discretion to extend the time for service of the Originating Process above; and they would also have been relevant to whether the SoC would be struck out, had it been filed. Another relevant factor may have been the arguable unfairness involved in Atradius commencing the proceedings, not giving notice of them to the KM Defendants until after it and other participants to the Distribution DOCA received the sixth distribution, and then seeking to proceed with them without returning the KM Defendants to the position which would have existed had it given prompt notice of the proceedings give rises to an abuse of process. It is not necessary to decide the question of abuse of process given the findings that I have reached above, including as to the relevance of those matters to the Court's discretion whether to extend the time for service of the proceedings.

Exclusive jurisdiction clauses

1. The KM Defendants initially relied on exclusive jurisdiction clauses under the DOCAs. Mr Collinson, for the Participating Financiers, joined in a submission that the proceedings should be dismissed or permanently stayed as it has been commenced in breach of exclusive jurisdiction clauses in the DOCAs. Atradius summarised its response in its "roadmap" of submissions, namely that is entitled to bring the proceeding in this Court; the DOCAs have been terminated and the exclusive jurisdiction clauses do not survive termination; and, in any event, ss 1337H and 1337L of the Act provides a mechanism for the transfer of the proceeding, if necessary. It seems to me that these clauses are unlikely to have assisted the KM Defendants or the Financiers, where it appears that they do not have any continued operation after termination of the DOCAs. However, it is not necessary to determine that question, given the findings that I reached above on other grounds.

Determination as to Atradius' Interlocutory Process

1. In summary, it seems to me that the Court should not extend the time to serve Atradius' Originating Process and should dismiss the proceedings for reasons that include at least five matters. First, Atradius has not provided a sufficient explanation of its delay in seeking litigation funding (to the extent that it wished, as distinct from needed, to obtain such funding) or seeking to undertake examinations, where it identified the large part of the claims it sought to bring several years ago, at least by the point it formulated substantially the same claims in the 2017 SoC. Second, the KM Defendants would suffer substantial and irremediable detriment from Atradius' delay in serving the Originating Process (or at least notifying the KM Defendants of the commencement of the proceedings) when they paid out the final dividend under the Distribution DOCA, including to Atradius, after Atradius had commenced the proceedings but before it gave notice of them or served them, where that amount would otherwise have been available to fund its defence and possibly any order for compensation sought against it in respect of the Metpol transaction.
2. Third, Atradius has failed to identify, in the 2022 SoC to which the Originating Process refers, either the factual basis of any contention that unsecured creditors would have access to the Moly-Cop Proceeds or other monies paid to the Financiers in a deed administration (as distinct from a liquidation), apart from the Standstill Agreements and Override Deed, or that unsecured creditors received a lesser distribution in the deed administration than they would have received in a liquidation in which they would have had the benefit of the ASIC DOCGs. I recognise that an order for pleadings has not been made and Atradius has not sought to file the 2022 SoC. Nonetheless, the Originating Process identifies the relief that is sought by Atradius as set out in the 2022 SoC, and necessarily implies that relief is sought on the basis set out in the 2022 SoC. Although Mr Williams departed from the 2022 SoC in submissions, as I noted above, I did not understand him to contend that the Court and the Defendants on which the Originating Process and 2022 SoC is to be served should not treat the 2022 SoC as genuinely indicating the case that Atradius seeks to put, but instead as surplusage or a distraction from that case. It seems to me that the Originating Process and the 2022 SoC as incorporated by cross-reference in it would not allow the Defendants to identify the case put against them and does not identify a basis for the large part of the relief claimed. I do not neglect Mr Williams' submission that the 2022 SoC may be "imperfect" but could be amended at some later point. The issues that I have addressed above seem to me to be too substantial to allow that course, and are an additional reason that the Court should not exercise a discretion to extend the time for service of the Originating Process in its present form.
3. Fourth, Atradius does not have standing to seek the relief it seeks under s 90-15 of the IPSC, and does not identify the basis on which the wide relief that it seeks could be justified on other bases, including under s 447A of the Act and in equity.
4. Fifth, Atradius seeks relief against numerous Financiers, which it could not obtain without setting aside contractual arrangements which it does not seek to set aside and which it could not properly set aside, because of the issue estoppel that arises from the FCA Proceedings as to the operation and effect of those arrangements. I should not extend the time for service of the Originating Process where it seeks to commence proceedings against the Financiers which cannot properly be commenced.
5. These matters individually would likely be sufficient to have the result that the orders sought by Atradius should not be made and the proceedings should be dismissed, but the proper result is clear where all these matters and the other issues I have addressed above in this judgment arise. I will therefore not make the second order sought by Atradius in the Further Amended Interlocutory Process under UCPR r 1.12, that the Originating Process be valid for service for a further period, where it has not been served within the time limits specified in UCPR r 6.2(4) and r 2.7 of the Corporations Rules. For these reasons, I will also not make the first order sought by Atradius by its Further Amended Interlocutory Process filed during the course of the hearing, in alternative forms, to extend the time for service of the Originating Process indefinitely, or to 31 October 2023 or alternatively to six weeks from the date of this judgment. There is also force in the KM Defendants' further submissions in that respect that an indefinite extension is "completely untenable"; there is no certainty that examinations will be conducted by 31 October 2023, and that date is therefore speculative.
6. I should, for completeness, identify two other issues, which I need not determine. There was reference in this hearing to the fact that ASIC had authorised Atradius to conduct examinations and that Atradius had then brought an application for the issues of examination summonses and orders for production in this Court, which had been deferred pending the determination of these proceedings, and that time had been "reserved" for its proposed examinations in September 2023. No evidence was lead in this hearing as to whether, first, Atradius had drawn ASIC's attention to the issues that I have addressed above as relevant to the question whether it should be authorised to conduct the examinations; or, second, it had drawn those issues to the Registrar's attention as relevant to an ex parte application for the issue of examination summonses and orders for production by this Court. I do note that Atradius did not draw these matters to my attention in its evidence or correspondence in support of its initial ex parte application for orders deferring service of these proceedings, which I did not hear on an ex parte basis. I need not address these issues further, where I was informed that the KM Defendants have brought other proceedings challenging the authorisation granted by ASIC to Atradius and the first of them can properly be determined in those proceedings. The second, which may be relevant to whether this Court should authorise the numerous examinations that Atradius wishes to conduct or require production of documents or continue to "reserve" time for Atradius' proposed examinations in September 2023, is, at least in the first instance, a matter for the Registrar who is dealing with that application in this Court.

Determination as to the KM Defendants' Interlocutory Process

1. By Amended Interlocutory Process filed on 3 February 2023, the KM Defendants sought an order discharging any order extending the validity for service of the Originating Process. No such order was previously made and this question does not arise. Second, the KM Defendants sought an order refusing leave to file the proposed Statement of Claim. Atradius does not seek leave to file that Statement of Claim, as distinct from cross-referring to the relief sought in it in its Originating Process, so this question also does not arise. Third, the KM Defendants seek an order setting aside the Originating Process and/or the proceedings, an order dismissing the proceedings or alternatively an order that the proceedings be permanently stayed in the Court's inherent jurisdiction.
2. Ms Whittaker recognised that application is largely the converse of Atradius' application. I am satisfied that orders should be made setting aside the Originating Process and dismissing the proceedings, consequential upon my finding that the time for service of the Originating Process should not be extended. For completeness, I note that the KM Defendants submit that the public interest favours dismissal of the proceeding, on the basis that the proceedings are antithetical to policy and principle underlying Part 5.3A of the Act. It is not necessary to address that submission in order to determine the application.

Determination as to the Participating Financiers' Interlocutory Process

1. By their Further Amended Interlocutory Process filed, by leave, on 4 April 2023, the Participating Financiers sought an order that the proceedings be dismissed under UCPR r 13.4, or alternatively in the Court's inherent jurisdiction, or that they permanently be stayed under s 67 of the CPA or in the Court's inherent jurisdiction; or that the proceedings and Originating Process be set aside under UCPR r 12.11 (1) or under s 63(3) of the CPA. Mr Collinson submits, and I accept that where the Court does not grant the interlocutory relief that Atradius requires, in order to allow it to proceed with the Originating Process that is now stale, then the Originating Process and the proceedings should be dismissed.

Dismissal of proceedings

1. For the reasons noted above, I am satisfied that the proceedings should be dismissed where they were not served within the times required by UCPR r 6.2(4) and r 2.7 of the Corporations Rules and I have found that those times should not be extended.

Orders

1. I direct the parties to bring in agreed orders to give effect to this judgment, including as to costs, within 7 days or, if there is no agreement between them as to those orders, their respective draft minutes of order and submissions not exceeding 6 pages in Arial font 12 and one and a half spacing as to the differences between them.

Amendments 15 May 2023 - Edit to case title DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 May 2023