//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2017] FCA 836
Federal Court of Australia
2017-07-13
Barker J
Original judgment source is linked above.
Solicitor for the Plaintiffs: King & Wood Mallesons
ORDERS WAD 328 of 2017 IN THE MATTER OF PALADIN ENERGY LTD (ADMINISTRATORS APPOINTED) ABN 47 061 681 098 MATTHEW DAVID WOODS, HAYDEN LEIGH WHITE AND GAYLE DICKERSON IN THEIR CAPACITIES AS JOINT AND SEVERAL ADMINISTRATORS OF PALADIN ENERGY LTD (ADMINISTRATORS APPOINTED) ABN 47 061 681 098 First Plaintiff
PALADIN FINANCE PTY LTD (ADMINISTRATORS APPOINTED) ABN 83 117 234 278 Second Plaintiff
PALADIN ENERGY MINERALS NL (ADMINISTRATORS APPOINTED) ABN 81 073 700 393 Third Plaintiff
JUDGE: BARKER J DATE OF ORDER: 13 JULY 2017
BARKER J: 1 On Thursday 13 July 2017, I made the orders set out above. These are the reasons for so doing. 2 In short, I was satisfied that the proposed arrangements reflected in the orders were in the interests of the companies' creditors and consistent with the objectives of Pt 5.3A of the Corporations Act 2001 (Cth); that the proposed arrangements will enable the companies' business to continue to trade for the benefit of creditors; that the creditors would not materially be prejudiced or disadvantaged by the orders made and indeed should stand to benefit from the administrators entering into the proposed arrangement; and that sufficient notice had been given to those who may be affected by the order and that, to the extent formal notice had not been given, the orders should be made in any event in the urgent circumstances of this case. 3 Those four considerations are typically identified as relevant to the making of orders pursuant to s 447A of the Act. See Re Nexus Energy Limited [2014] NSWSC 1041; Re Mentha, in the matter of Arrium Limited (administrators appointed) [2016] FCA 972; and Re Mentha (in their capacities as joint and several administrators of the Griffon Coal Mining Company Pty Ltd (administrators appointed) (2010) 82 ACSR 142; [2010] FCA 1469. 4 Briefly outlined, the circumstances which led to the plaintiff's application for the orders made were identified and addressed in the affidavits formally read at the hearing of the application, being those of Ms Gayle Dickerson made 11 July 2017, Mr Alexei Gorovstsov made 11 July 2017 (two affidavits) and Mr Matthew David Woods made 13 July 2017. 5 The background to this application was helpfully set out in succinct outlines of submissions of counsel for the plaintiffs filed 11 July 2017 and 13 July 2017, to the following effect. 6 The plaintiffs are the voluntary administrators of Paladin Energy Ltd, Paladin Finance Pty Ltd and Paladin Energy Minerals NL (together, the companies). They were appointed as voluntary administrators on 3 July 2017. 7 The application stems from the commercial view of the plaintiffs that it is necessary for the companies to enter into a funding agreement with Deutsche Bank AG, being the Draft Amended and Restated Facility Agreement which is at Annexure GD-4 of Mr Dickerson's affidavit, in order to meet a number of urgent funding requirements (Deutsche Bank facility). Since their appointment, the plaintiffs have identified the Deutsche Bank Facility as critical to the survival of the companies and any proposed restructure of the Paladin group. 8 In essence, the group holds interests in two uranium mines, the Langer Heinrich Mine (LHM) in Namibia (75% interest) and the Kayelekera Mine in Malawi (85% interest). The LHM is a large scale operational mine, and is Paladin Energy's primary asset. The Kayelekera Mine is in "care and maintenance" at present, as operation of the project is uneconomic in an environment of low uranium prices. 9 The remaining 25% interest in the LHM is owned by CNNC Overseas Uranium Holding Limited (COUH). Paladin Finance and COUH have been in dispute, and are currently undertaking a valuation process which may lead to COUH exercising a call option under the shareholder's agreement to acquire Paladin Finance's 75% interest in LHM. 10 The Bank of Montreal has been engaged to undertake the valuation and is due to provide a valuation report on 20 July 2017. The provision of the valuation report will trigger a 30 day period during which COUH may exercise the call option (call option period), which may expire on 22 August 2017. There remains the potential for the parties to be in dispute concerning the valuation process. 11 COUH is not presently contributing to the funding of the LHM. If Langer Heinrich Uranium (Pty) Ltd (LHUL) does not receive immediate further funding, LHUL will be unable to pay its debts and there is a risk that it may need to seek local insolvency protection. 12 In the period leading to the appointment of the plaintiffs on 3 July 2017, the companies and LHUL were negotiating the Deutsche Bank facility. The agreement was not finalised before the appointment. The Deutsche Bank facility is intended to assist the companies in meeting a number of urgent funding requirements. The funding requirements include: (a) the working capital needs of LHUL for the LHM; (b) repayment of the revolving credit facility from the group's current financier (NBSA Limited); and (c) payment in respect of the performance bond facility from Nedbank Limited relating to the Kayelekera Mine. 13 The plaintiffs and Deutsche Bank have continued to negotiate the terms of the Deutsche Bank facility following the plaintiffs' appointment and the document is now in a form which is close to execution. 14 It is a condition of the Deutsche Bank facility that it be secured by various securities registered by Deutsche Bank on the Personal Properties Securities Register (PPSR), as maintained under the Personal Property Securities Act 2009 (Cth) (PPSA). 15 So far as material creditors were concerned, the plaintiffs made the following submission, which I accepted: The material creditors who may be interested in the present application are Nedbank Limited (Nedbank), N.B.S.A. Limited (NBSA), the bondholders, and Electricite de France S.A. (EDF). (a) No question of notice arises in relation to Nedbank and NBSA. These creditors are parties to the instruments by which it is agreed that the Plaintiffs will have their liability limited. (b) The bondholders of the Companies are supportive of the proposal to enter into the Deutsche Bank Facility: affidavit of Gayle Dickerson sworn and filed on 11 July 2017 (Dickerson Affidavit) at [60] and affidavit of Matthew David Woods (Woods Affidavit) sworn and filed on 13 July 2017 at [19]-[20]. (c) EDF is an unsecured creditor of the Companies. It is well aware of the proposal by the Plaintiffs to enter into the Deutsche Bank Facility, and has indicated its opposition to this course. Additionally, notice of these proceedings was given to EDF following the adjourned hearing on 12 July 2017: see Annexure MDW-1 of the Woods Affidavit. EDF has responded by letter received on 13 July 2017: see Annexure MDW-2 of the Woods Affidavit. EDF's position would not be directly affected by the granting of the application under s.447A to limit the personal liability of the Plaintiffs and EDF does not refer to the liability limitation issue in its response. 16 The Court is empowered by s 447D of the Act, on an application of an administrator for directions about a matter arising in connection with the performance or exercise of the administrator's functions and powers, to give directions. As the orders made indicate, the direction relevantly sought was that the plaintiffs were justified in causing the companies to enter into and perform the proposed Deutsche Bank facility in substantially the form annexed to the Dickerson affidavit and associated documents. 17 In this case, I consider that the administrators' decision in this regard is capable of giving some rise to legal controversy or some question about the propriety or reasonableness of the decision to be made. 18 It is in those circumstances that I considered it was appropriate to consider making the order eventually made. See Re Mentha, in the matter of Arrium Limited at [24]. The order provides the administrator in this case with protections against claims that they acted inappropriately or unreasonably in entering into or performing the agreement. 19 Having considered the relevant evidence outlined in the two affidavits of the administrators, Ms Dickerson and Mr Woods, I acknowledge the commercial view that they have formed that the decision to enter into the Deutsche Bank facility is in the best interests of the creditors and consistent with the objects of Pt 5.3A of the Act. The urgency of the decision in this case has limited the scope of obtaining the approval from creditors. While the unsecured creditor, Electricite de France S.A. (EDF), has objections, they do not appear to me to be such that the interests of creditors generally speaking is not likely to be enhanced by the making of the orders applied for. The EDF objection, however, underlines the question of the propriety and reasonableness of the decision of the plaintiffs and the need for the making of an order in this case. 20 The ultimate point in this case is that, if the arrangement is not proceeded with, the value of the underlying assets of the companies is likely, as the administrators assess it, to be diminished rather than enhanced, something which will not be to the benefit of creditors in all likelihood. While there are a range of uncertainties in relation to this commercial assessment, including the position of COUH in relation to the buying out of the co-shareholder's interest in the mine, and the future dealings between EDF and the companies, in my view, the commercial opinion of the administrators expressed in the affidavits before me should be respected and must lead to the making of the orders sought. 21 In relation to the order made pursuant to s 447A, by entering into the Deutsche Bank facility and associated documents, the plaintiffs will incur personal liability for debts pursuant to s 443A. I accept in the circumstances that an order pursuant to s 447A to modify the operation of s 443A, given the quantum of the amount proposed to be borrowed - approximately US$60m - is appropriate. 22 Given that I hold a view that the proposed arrangements are in the interests of the company's creditors and consistent with the objectives of Pt 5.3A of the Act - as discussed above; that the arrangements are to enable the company's business to continue to trade for the benefit of the company's creditors; that the creditors should not be prejudiced or disadvantaged by the types of orders sought and stand to benefit from the arrangement; and that, in my view, sufficient notice has been given to those who may be affected by the order and, to the extent formal notice has not been given, the orders should be made in any event in the urgent circumstances of the case, it is appropriate that the orders requested be made. Plainly, if the orders are not made, the administrators will not proceed to make the arrangement that will result in the Deutsche Bank facility, to the likely disadvantage of creditors, as assessed by the administrators. 23 I accept the commercial judgement of the administrators that if an order under s 447A is not granted, the administrators will not cause the companies to enter into the arrangement and there is a serious risk that the operations of the LHM mine will cease, the companies through which the companies hold their interest in the LHM mine will become insolvent, and the project assets will be sold at a reduced value with little or no return to creditors of the companies. 24 More particularly, I also accept that given the recent appointment of the plaintiffs on 3 July 2017, the urgent nature of the companies' funding requests, which in the plaintiffs' commercial view requires the facility to be entered into, and the subsequent urgency of the order under s 447A to be obtained prior to the execution of the Deutsche Bank facility, there has been insufficient time to establish a committee of creditors and give notice to the committee of the application. Nonetheless, notice has been given to the major known creditors, with the results referred to in the affidavit of Ms Dickerson. 25 In my view, the inability, strictly perhaps, to formally notify all creditors should not, in the particular circumstances of this case, lead to the Court refusing the orders sought. See, generally, Re Great Southern Infrastructure Pty Ltd; Ex parte Jones [2009] WASC 161 at [12]; Saker & Jones as joint and several voluntary administrators of Conquest Crop Protection Pty Ltd (Administrators Appointed) [2012] WASC 473 at [16]. 26 In so far as the order made pursuant to s 588FM of the Act is concerned, I made that order because, unless the time for registration is extended pursuant to the provision, s 588FL(2)(b)(ii) (by reason of s 588FL(4)) will apply to the PPSA security interests granted after the appointment of administrators. See K.J. Renfrey Nominees Pty Ltd (Trustee), in the matter of OneSteel Manufacturing Pty Ltd v OneSteel Manufacturing Pty Ltd [2017] FCA 325 at [26] (Davies J). The effect of this would be that the PPSA security interest in question would immediately and automatically vest in the grantor company upon being granted and becoming enforceable, and therefore would be worthless to the "secured" lender in the absence of an order under s 588FM. 27 Section 588FL applies where, relevantly, an administrator of a company is appointed and a PPSA security interest granted by the company in collateral "is covered" by s 588FL(2). Whether a PPSA security interest "is covered" by s 588FL(2) requires an analysis of the phrase "critical time". The "critical time" is defined in s 588FL(7) to be, relevantly, the day on which one of the events prescribed in s 588FL(1)(a) occurs (which includes the appointment of administrators). Therefore, if an administrator is appointed to a grantor company, a security interest "arises after the critical time" if it arises after the day on which administrator was appointed. The practical effect of this is that no effective security interest can be granted after the appointment of administrators, unless an order under s 588FM is obtained, to fix a later "critical time". 28 In those circumstances, the plaintiffs sought an order fixing the registration time for any collateral in connection with the Deutsche Bank facility to be 20 business days after the relevant security agreement comes into force. 29 I accepted the plaintiffs' submission that their commercial view is that the continued operation of the LHM mine (and the companies generally) is in the best interests of the creditors and stakeholders of the companies, and it is necessary to enter into the Deutsche Bank facility in order to facilitate the continued operation of the mine. As Deutsche Bank will not enter into the facility unless its security interest is protected against the operation of s 588FL, I accept that it is just and equitable to grant the relief sought, under s 588FM(2)(b). I note a not dissimilar order was made in Re Mentha, in the matter of Arrium Limited. 30 I also note what might be called confidentiality orders in respect of certain affidavit materials and key documents supporting the making of the orders, pursuant to s 37AG of the Federal Court of Australia Act 1976 (Cth). 31 Section 37AG provides that the Court may make a suppression order or non-publication order on the ground that the order is necessary to prevent prejudice to the proper administration of justice. That provision is to be construed in light of the judgment in Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 (concerning what was then s 50 of the Federal Court of Australia Act). 32 The term "necessary" is a strong word. It is insufficient that the making or continuation of an order under this provision is convenient, reasonable or sensible, or is to serve some notion of the public interest, still less that, as the result of some "balancing exercise", the order appears to have one or more of those characteristics: see, for example, Yara Australia Pty Ltd v Burrup Holdings Limited (No 2) [2010] FCA 1304 at [15]-[20]. 33 The order is not to be made lightly. The effect of the orders is often to suppress information relied upon by the Court and to reduce transparency of proceedings and the open nature of justice. The onus for these orders is the balance of probabilities but the matters to be satisfied (including "necessity") make the satisfaction of the onus a very heavy one: see Computer Interchange Pty Ltd v Microsoft Corporation (1999) 88 FCR 438, 442 [16] (Madgwick J); [1999] FCA 198; Australian Competition and Consumer Commission v Air New Zealand Ltd (No 12) [2013] FCA 533 [7] (Perram J); Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 [8] (Edelman J); Pleash, in the matter of Consolidated Tin Mines Limited (administrators appointed) (No 2) [2016] FCA 1366 at [5] (Edelman J). 34 By way of example, proposed funding deeds have been kept confidential as between special purpose liquidators and the funder: Re Ambient Advertising Pty Ltd (in liq) [2015] NSWSC 1079. There is a clear public interest in the due and beneficial administration of the estates of insolvent companies for the benefit of creditors, and this is a relevant consideration in favour of a s 37AF order in this case: Deputy Commissioner of Taxation; in the matter of ACN 154 520 199 Pty Ltd (in Liq) v ACN 154 520 199 Pty Ltd (in Liq) (No 2) [2017] FCA 755 at [40] per Gleeson J. 35 In Deputy Commissioner of Taxation; in the matter of ACN 154 520 199 Pty Ltd (in Liq) v ACN 154 520 199 Pty Ltd (in Liq) (No 2), Gleeson J concluded, at [42]: I have made confidentiality orders in respect of the entirety [of] Mr Zafirou's affidavit of 9 March 2017 and the revised proposed SPL funding agreement annexed to Mr Zafirou's affidavit of 26 May 2017. It is possible that not every paragraph, clause or part of this material is of a commercially confidential and sensitive nature. In my view, it would not serve the interests of justice to require the parties to expend time and money in identifying in detail which particular portions of the material should be the subject of an order under s37AF. The approach of Ball J in Re Octaviar Administration Pty Ltd (in liq) [2014] NSWSC 344 at [15] to [21] is a useful guide in this case. Accordingly, I have ordered that a party demonstrating sufficient interest in the confidentiality order may apply to the Court if it seeks to access the affidavits. 36 See also Pascoe, in the matter of Brentwood Village Limited (in liquidation) [2014] FCA 1295 at [60] per Gleeson J. 37 These principles having been generally raised by me with counsel for the plaintiffs, the plaintiffs refined the confidentiality orders that they had initially sought in their application. Having reviewed the more targeted confidential material, I was satisfied that it was appropriate, in the administration of justice, to protect the commercial information in materials mentioned in the orders made from publication. The commercial interests of the companies should be respected, particularly at a time of considerable commercial sensitivities concerning the future operation of the activities of the companies. 38 For these reasons, as noted above, I made the above orders. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.
Australian Competition and Consumer Commission
Air New Zealand Ltd
[2009] WASC 161
[2012] WASC 473
(1999) 88 FCR 438
(2010) 240 CLR 651