Australian Pacific Coal Ltd (Receivers Appointed) v M Resources Trading Pty Ltd [2025] QSC 276

CORPORATIONS - WINDING UP - WINDING UP AND INSOLVENCY - STATUTORY DEMAND - APPLICATION TO SET ASIDE DEMAND - GENUINE DISPUTE AS TO INDEBTEDNESS - ASSESSING GENUINENESS - GENERALLY - where the applicant has been served with a statutory demand by the respondent - where the applicant alleges that the agreement under which the debt is claimed was the product of a breach of fiduciary duty by a director nominee of the respondent - whether genuine dispute raised - whether dispute clause provided another reason to set aside the statutory demand

Corporations Act 2001 (Cth) ss 191, 192, 193, 459G, 459H, 459J

Agricultural Land Management Ltd v Jackson (No 2) [2014] WASC 102; (2014) 48 WAR 1, applied

Allco Funds Management Limited (in liq) v Trust Company (RE Services) Limited [2014] NSWSC 1251, applied

Arris Investments Pty v Fahd [2010] NSWSC 309, applied

Australian Careers Institute Pty Ltd v Australian Institute of Fitness [2016] NSWCA 347; (2016) 340 ALR 580, cited

Australian Communication Exchange Ltd v Pilot Partners Pty Ltd [2017] QSC 176, applied

Australian Institute of Fitness v Australian Institute of Fitness (Vic/Tas) (No 3) [2015] NSWSC 1639; (2015) 109 ASCR 369, cited

Beach Petroleum NL v Kennedy [1999] NSWCA 408; (1999) 48 NSWLR 1, cited

BRC Group Pty Ltd v Watagan Park Pty Ltd [2025] VSCA 36, applied

Britten-Norman Pty Ltd v Analysis &Technology Australia Pty Ltd [2013] NSWCA 344; (2013) 85 NSWLR 601, cited

Commonwealth Bank of Australia v Smith [1991] FCA 375; (1991) 42 FCR 390, applied

Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420, applied

Graywinter Properties Pty Ltd v Gas & Fuel Corporation

Superannuation Fund [1996] FCA 822; (1996) 70 FCR 452, applied

Hospital Products Ltd v United States Surgical Corp [1984] HCA 64; (1984) 156 CLR 41, applied

Hylepin Pty Ltd v Doshay Pty Ltd [2021] FCAFC 201; (2021) 288 FCR 104, considered

Ligon 158 Pty Ltd v Huber [2016] NSWCA 330; (2016) 117 ACSR 495, applied

National Telecoms Group Ltd v Bulldogs Rugby League Club Ltd [2003] NSWSC 654, considered

Q_NI Resources Pty Ltd v North Queensland Pipeline No 1 Pty Ltd_ [2017] QCA 297, considered

R v Byrnes [1995] HCA 1; (1995) 183 CLR 501, applied

Re 2 Roslyn Street Pty Ltd v Leisure Inn Hospitality Management Pty Ltd [2011] NSWSC 512, considered

Re Vivo International Corporation Pty Ltd [2013] NSWSC 1462, cited

Robins v Incentive Dynamics Pty Ltd [2003] NSWCA 71; (2003) 45 ACSR 244, cited

Sceam Constructions Pty Ltd v Clyne [2021] VSCA 270; (2021) 64 VR 404, applied

Spellson v George [1992] NSWCA 254; (1992) 26 NSWLR 666, cited

Thomson v Australia and New Zealand Banking Group Ltd [2024] QCA 73, applied

Turner v Labafox International Pty Ltd [1974] HCA 41; (1974) 131 CLR 660, cited

Woolworths Ltd v Kelly (1991) 22 NSWLR 189, applied

Ziegler v Cenric Group Pty Ltd [2020] NSWCA 85, cited

• [1] The respondent and the applicant entered into an agreement in early 2024 in which it was agreed that the respondent would provide consulting services to the applicant relating to a coal mine in New South Wales. The respondent alleges the applicant has not paid the fee of $1,074,006.85 and as a result issued a creditor's statutory demand on 10 July 2025.
• [2] The applicant alleges that the agreement was the product of a breach of fiduciary duty as it was procured by a director of the applicant, who was the nominee of the respondent, and she acted with a conflict of interest and the applicant received no real benefit under the agreement. As a result, the applicant has applied for an order pursuant to ss 459G and 459H and/or 459J of the Corporations Act 2001 (Cth) (Corporations Act) that the creditor's statutory demand be set aside.
• [3] The issues to be determined are:

(a) Whether there is a genuine dispute between the parties.

(b) Whether the correct party is named in the contract.

(c) Whether the dispute clause in the contract means that there is another reason to set aside the statutory demand.

• [4] For the reasons which follow, there is a genuine dispute between the parties and the statutory demand should be set aside.

• [5] The relationship between the applicant and the respondent arose from a proposed joint venture[1] for the recommissioning of the Dartbrook coal mine, located in New South Wales.
• [6] The relationship between the parties commenced by way of a binding term sheet. This term sheet, dated 25 September 2022, proposed a joint venture arrangement between the M Resources Group (M Resources), Tetra Resources Pty Ltd (Tetra), Trepang Services Pty Ltd (Trepang) and the applicant.[2] The term sheet noted that the applicant owned the Dartbrook coal mine and had announced to the ASX[3] a partnership and joint venture between the various parties, and the raising of equity capital of approximately $100 million.
• [7] It was noted that M Resources would be entitled to appoint a director to the board, subject to re-election, in accordance with AQC's constitution and the ASX listed rules, and that M Resources (itself and through its affiliates) would continue to be the strategic partner of the applicant for the Dartbrook project. For the avoidance of doubt, if a nominee is not re-elected by the shareholders, M Resources would have the right to nominate a different person as a director. But in the event two consecutive directors nominated by M Resources were not re-elected by shareholders, this entitlement would lapse.
• [8] It was agreed that Trepang would have the right to nominate up to two directors to the board, subject to re-election.
• [9] M Resources or its affiliates would earn a 20 per cent direct interest in Dartbrook, AQC 50 per cent, Tetra 20 per cent and Trepang 10 per cent. It was agreed that management services agreements would be entered into between the applicant, M Resources affiliates (including the respondent) and Tetra or its affiliate.
• [10] The respondent was appointed as the exclusive marketing agent for all coal types produced by AQC for the life of the mine. The respondent was also appointed as the exclusive logistics agent for all coal types produced by AQC at the mine. Fees would be payable with respect to each of those duties and functions.
• [11] The transactions set out in the binding term sheet were conditional on a number of conditions precedent. These were:

(a) the equity capital raising proceeding and successfully completing;

(b) AQC obtaining all required authorisations, not limited to shareholder approval, within 120 days of the term sheet;

(c) M Resources or its affiliate complying with the underwriting arrangements with Evolution Capital Pty Ltd;

(d) no temporary restraining order or injunction issued by a court or the takeovers panel or other restraint or prohibition which prevented or restrained the lawful consummation of any aspect of the equity capital raising; and

(e) if shareholder approval was required for any aspect of the partnership and it was not obtained, and the equity capital was completed, AQC had to pay a break fee to M Resources equal to $1 million (Australian currency).

• [12] There was a dispute as to whether the applicant satisfied these conditions precedent prior to the date specified in the term sheet. Attempts were made between the parties to agree to a deed of variation to the binding term sheet. There was correspondence between the parties which revealed a difference in position.
• [13] On 15 February 2023, the respondent's solicitor sent a letter to the applicant's solicitor which set out the basis of the dispute. The letter noted:

(a) at a meeting in Sydney on 10 February 2023, the chairman of the applicant's board stated that the applicant wished to re-negotiate the terms of the binding term sheet, particularly regarding the participation of the respondent in it;

(b) there was an allegation that the respondent had not discharged a purported obligation to provide financing to the applicant;

(c) the position advanced by the chairman regarding the re-negotiation was misconceived and of serious concern to the respondent;

(d) there was no legal basis for the applicant to seek to re-negotiate the terms of the binding term agreement;

(e) the respondent was currently in advanced negotiations with financiers and anticipated that binding terms of finance would be available shortly; and

(f) the respondent sought urgent clarification of the applicant's position.

• [14] On 25 November 2022, M Resources had nominated Ms Ayten Saridas as a director of the applicant. An ASX announcement issued by the applicant on

"...a finance executive with over 30 years of international experience across a broad range of industries, including oil and gas, mining, retail, infrastructure, property, and financial services. Ms Saridas has an established reputation in financial markets."

• [15] On 12 December 2022, there was a meeting of directors which noted that Ms Saridas had been appointed to the board as the nominee of M Resources and "other than as noted, no new conflicts of interest were declared."
• [16] A meeting of directors of the applicant was held on 22 March 2023. Present were Mr Mark Ryan; Ms Saridas; Mr Nick Johansen, Mr Geoff Beattie and Mr Craig McPherson, the secretary.
• [17] Mr Ryan said that he had spoken to the respondent, who had agreed in principle to:

(a) a 10 per cent economic interest in the coal mine; and

(b) a marketing, technical and advisory fee with the applicant on 50 basis points for a rolling term of three years on market terms.

• [18] Mr Ryan recommended that Ms Saridas negotiate the terms of the marketing fee. He further requested that the board support the approval of that marketing fee arrangement when brought to the board. It was noted that this would be the basis on which the respondent would agree not to litigate the binding terms agreement. Both Mr Ryan and Ms Saridas noted that the economic interest and marketing fee were conditional on each other and they recommended the board to proceed with both.
• [19] Mr Beattie said he would not approve the economic interest and the marketing fees. Mr Johannsen agreed with him.
• [20] Ms Saridas noted that both matters were contingent, and she would not put the company in a position where it was litigated. She noted that a decision not to approve both matters would potentially put the company into a position of insolvency. She noted that she would agree to vote in favour of what Mr Ryan had put forward, and if it was not approved, her view was the company would become insolvent and she would not support that decision.
• [21] It was noted that Mr Ryan had a casting vote as chairman. Mr Ryan noted that there were advantageous outcomes in having M Resources involved in the project. Ms Saridas requested the board to make a decision that day on the economic interest and marketing fee, and Mr Ryan wanted her to be given the authority to negotiate the terms of the marketing fee arrangement.
• [22] Mr Johansen asked whether the company had independent advice on whether 50 basis points was "market." Ms Saridas said 50 basis points was market in her experience and she noted that the economic interest relied on the marketing fee proceeding.
• [23] As a result, the board resolved the following resolutions:

(a) to approve the company granting M Resources a 10 per cent economic interest in the Dartbrook joint venture;

(b) to approve the company entering into an arrangement with M Resources for marketing and technical advisory services at a fee of 50 basis points for a rolling term of three years on market terms; and

(c) to approve Mark Ryan and Ayten Saridas to negotiate, implement and do all things necessary to bring into effect long form documentation for the above two agreements.

• [24] It was noted that the resolutions were subject to the respondent agreeing that no litigation would be brought against the company in relation to the binding term sheet.
• [25] The vote was two votes for and two votes against, with Mr Ryan providing the casting vote in favour.
• [26] As a direct result of this, on 30 April 2023, the parties executed a Deed of settlement and release. It was agreed that, subject to the satisfaction of the conditions precedent, each party would be released from the term sheet. The conditions precedent were:

(a) the parties would agree to the terms of and executing an advisory services agreement in respect of the Dartbrook coal mine on terms and conditions satisfactory to the parties;

(b) M Resources and Tetra would agree to the terms of and executing a settlement agreement in respect of management fees;

(c) The applicant would pay the respondent $600,000 in respect of its legal costs; and

(d) the applicant and Tetra would execute two agreements.

• [27] As a result of this, the parties agreed to a revised term sheet. It was noted that the original term sheet dated 27 September 2022 was terminated, and it was further noted:

"In exchange for M Resources waiving its rights, reducing its economic interest from 20 per cent to 10 per cent and giving up the marketing rights under the binding term sheet, M Resources will be entitled to the following:

• 10 per cent indirect economic interest through [the applicant];
• the economic interest will accrue until a distribution is made by the JV and paid in proportion to M Resources share of the economic interest;
• M Resources will receive a strategic advisory fee of 0.5 per cent of the applicant's net share of coal sales;
• the advisory fee will also include a management fee of $AUD500,000 payable per annum for the first three years, and $AUD1 million thereafter on a rolling three-year basis; and
• M Resources' indirect interest in the JV reverts back to the applicant in the event that Dartbrook does not achieve production of 50kt of saleable coal within 12 months for securing funding of the restart Capex."

• [28] A technical services advisory agreement (TSAA) was entered into between the parties on 18 April 2023, and the economic interest deed (EID) was entered into between the parties on 20 April 2023.
• [29] As to the TSAA, this was signed by Mr Ryan, Mr McPherson, and Ms Saridas on behalf of the applicant. The agreement provided for the provision of services to the applicant. Clause 4.1 provided as to the calculation and payment of fees.
• [30] On 30 November 2023, the applicant made an ASX announcement about the finalisation of a $USD60 million debt facility with Vitol Asia. Ms Saridas was quoted extolling the virtues of the arrangement.
• [31] On 22 January 2024, a further ASX announcement was made by the applicant concerning the finalisation of the debt facility with Vitol. It referred to the debt facility being subject to conditions precedent. Again, Ms Saridas talked of the virtues of the arrangement.
• [32] On 25 January 2024, there was an email from the applicant to the respondent attaching a draft deed of assignment in which AQC Dartbrook was looking to assign the EID and the TSAA to the AQC parent. Mr Meka says this was to satisfy a condition precent for Vitol.
• [33] On 9 February 2024, the parties entered into a Deed of assignment and release and amendment and restatement.
• [34] The deed provided as to the following:

(a) that the EID was between the applicant and M Resources Trading. It is common ground this was an error, and it should have been with M Resources NSW;

(b) the TSAA was between M Resources NSW and the applicant. Again, it is common ground that this should have been the respondent;

(c) Paragraph b of the recital noted that under the agreements, the assignor had agreed to make certain payments to M Resources; and

(d) the assignor wished to assign to the applicant and the assignee assigned its interest to the applicant.

• [35] Clause 4 noted that the EID is amended to, and restated, in Annexure "A" and the TSAA was restated in Annexure "B". Again, the same error in the parties' names appeared.
• [36] This contract again was signed by Ms Saridas and Mr Ryan on behalf of the applicant.
• [37] Turning to Annexure "B," of the TSAA, this was noted to be between the applicant and the respondent. Paragraphs 3 and 4 of the deed provided as follows:

For the Term, the Supplier will provide to AQC, or its Related Bodies Corporate, the Services (or any variation to the Services agreed between AQC and the Supplier in writing during the Term) set out in schedule 1 in accordance with this Agreement.

(i) an amount equal to 0.5% of the Sales Revenue for all Coal sold during the Term (Service Fee) payable Quarterly in arrears; and

(ii) an amount equal to:

(A) in the first three Contract Years, A$500,000 per Contract Year (or part thereof); and

(B) otherwise, A$1 million per Contract year (or part thereof), (Retainer) payable on a pro rata basis Quarterly in arrears,

in each case, in accordance with this clause 4.

(c) To the extent that the payment of the Service Fee or the Retainer is consideration for a taxable supply and AQC satisfies the requirements for issuing RCTIs, then clause 5.7 will apply and AQC must:

(i) pay the Retainer and/or the Service Fee (as applicable) for a Quarter within 10 Business Days after the end of that Quarter; and

(ii) provide the Supplier with RCTI for the amount of the Service Fee and/or Retainer (as applicable) for that Quarter at the same time that AQC provides the statement under clause 4.1(b)(ii) for a Quarter.

(d) To the extent the payment of the Service Fee or the Retainer is:

(i) consideration for a taxable supply and AQC does not satisfy the requirements for issuing RCTIs, then the Supplier must provide, (in the case of the Service Fee, following receipt of a statement for a Quarter given by AQC under clause 4.1(b)(ii)), AQC with one or more tax invoices for the Service Fee and/or the Retainer (as applicable) payable for the prior Quarter; or

(ii) is not consideration for a taxable supply, then the Supplier must, (in the case of the Service Fee, following receipt of a statement for a Quarter given by AQC under clause 4.1(b)(ii)), provide AQC with one or more invoices for the Service Fee and/or the Retainer (as applicable) payable for the prior Quarter.

(a) If any claim, dispute or question arises in relation to the Service Fee, Retainer, Termination Payment, Assignment Payment or any other related amount (Dispute) between the parties under or in connection with this Agreement, a party may give to the other party a notice (Dispute Notice) specifying reasonable details of the Dispute and referring it for resolution in accordance with this clause 15.

(b) Unless otherwise expressly provided to the contrary in this Agreement, a Dispute must be resolved in accordance with this clause 15.

(c) Nothing in this clause 15 will prevent a party from seeking urgent injunctive relief from a court.

(a) Within 10 Business Days after the giving of a Dispute Notice, any Dispute must be referred in the first instance to senior representatives of the parties (Representatives) of each party who must negotiate in good faith for resolution of the Dispute.

(b) The Representatives must have authority to settle a Dispute.

(c) If the Dispute is not resolved within 10 Business Days after the referral under clause 15.1(a), then the relevant Dispute will be referred for resolution by an expert (Expert) in accordance with this clause 15.

If any Dispute is required to be referred to an Expert under clause 15.2(c) then:

(a) the Dispute will be submitted to an expert in accordance, and subject to, the Expert Determination Rules in force at the time the Dispute is required to be referred to an expert;

(b) the parties agree to comply with such Expert Determination Rules in respect of the Dispute;

(c) the parties must comply with, and do all things necessary to satisfy and to give effect to, the reasonable requirements of the Expert Determination Body or the Expert (including providing relevant indemnities and paying any charges or fees) in connection with their engagement;

(d) the Expert will determine the Dispute acting as an expert only and not as an arbitrator;

(e) the Expert's decision (in the absence of fraud or manifest error) will be final and binding upon the parties;

(f) the costs of the expert and any advisers engaged by the expert will be borne equally by the parties to the Dispute; and

(g) each party to the Dispute will bear its own legal costs and the costs of any advisers to it in respect of the Dispute resolution process under this clause 15."

• [38] Ultimately, a letter of demand was sent by the respondent to the applicant on 10 July 2025, demanding payment of $1,074,006.85 under the TSAA. This alleged that under clause 4.1(a)(ii), the applicant owed the retainer fee of $125,000 per quarter. The statutory demand claiming this payment was served on 10 July 2025.

THE FIRST ISSUE - IS THERE A GENUINE DISPUTE BETWEEN THE PARTIES?

• [39] The applicant submits that it is relevant that the respondent never made any demand or claim in respect of the fee until 2 July 2025. Eight days later, it gave the applicant a statutory demand, claiming a sum in excess of $1 million. It is submitted the agreement was the product of a conflict of interest and is thereby voidable. One of the directors of the applicant, whose vote caused the applicant to enter into the agreement, was the nominee of the respondent. Her conflict was not properly disclosed or sanctioned by the shareholders of the applicant.
• [40] The applicant refers to the circumstances in which the TSAA was entered. It submits that Ms Saridas, despite being a director nominated by the respondent, did not decline to participate in the vote on the resolution, despite the fact it proposed an agreement with the respondent. She did not declare her conflict of interest, and in fact, she requested the board to make the decision that day.
• [41] It is further submitted that on Mr Robinson's evidence, the applicant has received no or no real benefit under the TSAA. His evidence is the fees payable significantly outweigh the benefits and, in fact, the services have not been provided. It is submitted there is a genuine dispute concerning the provision of these services. It is submitted that a retainer fee of $500,000 for Mr Bull is incommensurate with work for 1.5 hours at each monthly meeting; that is a total of 18 hours work for $500,000.
• [42] It is further submitted that there is no explanation for the failure to demand the payment of the retainer any sooner. This is despite the terms of the TSAA.
• [43] It is submitted that the TSAA is voidable because of Ms Saridas' conflict of interest, and further, the applicant has invoked the dispute resolution procedure under the TSAA.
• [44] On the issue of fiduciary duty, it is submitted the TSAA is voidable, and the applicant is entitled to rescind it, which it has done. It is submitted that a question has arisen which warrants further investigation.

• [45] It is submitted that the application should be dismissed as there is no genuine dispute about the existence of the debt.
• [46] The respondent refers to the nature of the relationship between the parties and the various provisions in the agreement. The respondent submits that it must be remembered that the reason for the meeting on 22 March 2023 was because of the dispute between the parties and the need to resolve it. As a result of the resolution, the parties entered into the revised term sheet; the EID and the original TSAA. By those agreements, the dispute was resolved; the proposed joint venture was restructured and the respondent's rights in respect of director appointments were removed.
• [47] It is pointed out that the applicant made an announcement through the ASX about these agreements on 1 May 2023, noting that the finalised funding arrangements would materially de-risk the project and provide a clear pathway for additional funding.
• [48] On 30 November 2023, the applicant released the ASX announcement stating that Vitol Asia Pty Ltd was the third-party funder.
• [49] On 22 January 2024, the applicant released an ASX announcement that it had finalised and executed a facility agreement with Vitol which was subject to conditions precedent. As a result, the applicant requested that AQC's rights and obligations under the original EID and TSAA be assigned to the applicant.
• [50] As a result, on 9 February 2024, the original TSAA and original EID were amended and restated by the deed of assignment and release amendment and restatement.
• [51] In consequence, on 12 March 2024, the applicant released an ASX announcement about satisfaction of the conditions precedent for the Vitol facility and the commencement of the drawdowns.
• [52] The respondent relies on the terms of clause 4.1(a)(ii) of the agreement. It is submitted the evidence shows that the respondent provided services to APC Dartbrook Pty Ltd, and later APC, until May 2025, when the mine went into administration and receivership.
• [53] On 10 July 2025, it is submitted there is no dispute about the calculation of the debt of $1,074,006.85.
• [54] It is submitted that until the filing and service of the Robinson affidavit, no representative of the applicant had raised any issue concerning the original TSAA or the new TSAA, or any concern about any conflict of interest on the part of Ms Saridas in relation to her being a nominee of the respondent.

(a) it does not render the TSAA voidable as the contract is not with Ms Saridas;

(b) at no stage prior to the bringing of the application did the applicant purport to avoid the TSAA; and

(c) in any event, the applicant could not purport to avoid the original TSAA where, for over two years, it has acted on and affirmed those agreements.

• [61] It is submitted that the agreements are not voidable. It is further submitted that the Robinson affidavit contains no assertion that APC and/or the respondent were knowing participants to any alleged breach of fiduciary duty. The evidence of the applicant does not raise this.
• [62] It is pointed out that Mr Robinson has access to the books of account and there is nothing which arguably establishes relevant knowledge.
• [63] It is further submitted that Mr Robinson's affidavit as to the allegation in paragraph [17] is not admissible.
• [64] It is submitted that the two emails in 2024 are well after the events in question and have nothing to do with the relevant events. With respect to the allegation that it was uncommercial for the applicant to have entered the agreements, this is an inadmissible assertion with no objective factual evidence.
• [65] The applicant owes the debt pursuant to the new TSAA. It is submitted that any allegation of conflict of interest in voting at the meeting has no relevance to the 2024 deed. It is submitted by the time of that deed; the respondent had ceased to be entitled to nominate a director pursuant to the binding term sheet. It is submitted there is no allegation by Mr Robinson of any potential conflict or breach of duty relating to the 2024 debt, and it ignores the request of the applicant for the deed to satisfy the condition precedent for the Vitol facility.
• [66] It is submitted that the first attempt to rescind the new TSAA was on 9 September 2025, the day before the application.
• [67] It is further submitted that a party may, by its unequivocal conduct, affirm a contract so as to preclude the exercise of a right of recission.[6] It is submitted that the applicant's own documents reveal that it engaged in such conduct, particularly bearing in mind the announcements to the market, the request to enter into the deed and the request and receipt of services.
• [68] It is submitted that it is open to conclude that following the financial failure of the mine, the applicant is belatedly attempting not to pay its debt. It is further pointed out that ss 191 and 192 of the provide that a failure of a director to declare a matter of personal interest does not affect the validity of any act, transaction or agreement.

• [76] Mr Robinson says that he has been a director of the applicant since 5 June 2024. He says in his capacity as a director of the applicant he has reviewed the books and accounts of the applicant. He confirms that the arrangement between the parties was initially in the term sheet dated 27 September 2022, noting that the applicant agreed to grant the respondent a financial interest in the coal mine in exchange for the respondent procuring a portion of the restart capital expenditure.
• [77] He says that the TSAA governs the relationship between the parties. The TSAA provides for the provision by the respondent of marketing, advisory and data provision services in exchange for the payment of a service fee and retainer. He says that prior to July 2025, the respondent had not rendered any tax invoices to the applicant, or made any demand upon the applicant for payment under this agreement.
• [78] As to Ms Saridas, she became a director of the applicant on 25 November 2022, and remained a director until 29 November 2024. She held the position of managing director and chief executive officer of the applicant between about January 2023 and December 2024. Despite this, she was appointed as a director of the applicant as a nominee for the respondent in accordance with the term sheet.
• [79] Mr Robinson noted that her appointment to the applicant's board of directors was declared as a conflict of interest at the meeting held on 12 December 2022. Mr Robinson says that Ms Saridas regularly reported to the respondent about the activities of the applicant. In this regard, he attaches two emails, the first dated 14 August 2024, and the second dated 27 November 2024.
• [80] As to the meeting in March 2023, Mr Robinson said a dispute had arisen between the applicant and the respondent as to whether the applicant was complying with the original term sheet.
• [81] On 22 March 2023, the applicant convened a meeting of directors. Mr Robinson refers to the resolutions passed at that meeting. He notes that Mr Johansen and Mr Beattie voted against the resolutions, and Ms Saridas and Mr Ryan voted in favour of the resolutions, with Mr Ryan making a casting vote. He says at [25]:

"As a result of the resolutions passing, the applicant executed the economic interest deed, the TSAA and later the agreement."

"I am not aware of any meeting of the applicant's directors or shareholders wherein a decision was made, or a resolution was passed, to waive Ms Saridas' conflict of interest in voting on the resolutions passed at the meeting on 22 March 2023."

• [83] He alleges the respondent did not provide the applicant any services in accordance with the agreement.
• [84] In a second affidavit sworn 9 September 2025, Mr Robinson responds to material filed by the respondent. He says that the first time the applicant received a demand concerning the retainer was as set out in the previous affidavit. He says that the TSAA on its face stated that the invoices were to be rendered on a quarterly basis in arrears.
• [85] He says the applicant assumed the reason that no invoices or other demands were made was because neither party considered themselves bound by the agreement. He says that if issues had been raised earlier, the issues as to Ms Saridas' conflict would have been raised in the dispute resolution procedure. He also says that the deed of assignment and release and amendment and restatement document was never tabled at a board meeting of the applicant, nor approved by the board.[8]
• [86] Under the heading "No services provided", Mr Robinson says that Mr Bull would attend monthly advisor committee meetings lasting no longer than an hour and a-half. He would not have been entitled to an annual fee of $500,000, and he does not clarify what work he did for $1 million.
• [87] Attached to the affidavit is a dispute notice under clause 15.1.[9]
• [88] Mr Meka is the chief investment officer of M Resources. He was the officer responsible for the negotiations in relation to the Dartbrook project. He says that on 27 September 2022, the respondent entered into the written term sheet.
• [89] He says that there were a number of conditions precedent in Item 6 of the binding term sheet and a dispute developed concerning these. He encloses correspondence from February 2023 regarding this. He refers to the letter sent by Corrs Chambers Westgarth to Mills Oakley on 15 February 2023.
• [90] As a result of the resolution of this dispute, on 30 April 2023, the parties entered into the deed of settlement and release, the TSAA of 18 April 2023 and the EID dated 20 April 2023. He refers to the ASX announcement on 1 May 2023 about the revised term sheet. He refers to the ASX announcements on 30 November 2023 and 22 January 2024 about the debt facility with Vitol. He says that on 9 February 2024, the agreements were amended and restated by the deed of assignment and release and amendment and restatement between the parties. The respondent agreed to enter into the 2024 deed because the applicant requested it to do so in order to satisfy one of the conditions precedent placed by Vitol.

"At no stage prior to the making of the Robinson affidavit has any representative of the applicant ever communicated to me, or to the best of my knowledge, any other representative of M Group that it held any concern about a conflict of interest on the part of Ms Saridas in relation to the TSAA or any other agreement by virtue of her being an M Resources nominee on the applicant's board."

• [95] In his second affidavit, Mr Meka attaches the confidential deed of settlement and release, which was signed by Ms Saridas as director and Mr McPherson as company secretary.
• [96] Mr Wayne Bull says that he is the executive advisor employed by the respondent. He is a qualified mining engineer with over 40 years' experience in the resources sector. He commenced his role as executive advisor at the respondent on or around 3 June 2024. On his commencing employment, he reviewed a copy of the restated TSAA annexed to the deed dated 9 February 2024, because it was his role to provide technical advice to the applicant in relation to the mining operations. In connection with the respondent's obligation to provide services, he attended and contributed to management committee meetings for the joint venture between the applicant and Tetra as a committee member for the applicant.
• [97] On 6 June 2024, Ms Saridas sent an email in which she stated that Mr Bull was replacing Mr Caruso as the applicant's representative on the Dartbrook JV management committee.
• [98] On 3 July 2025, the Dartbrook mine went into voluntary administration.
• [99] Mr Bull says that the services he provided from June 2024 until May 2025 were:

(a) attending monthly meetings;

(b) reviewing and scrutinising the performance of the operator on the applicant's behalf;

(c) attending ad hoc meetings; and

(d) receiving and responding to technical advice ad hoc. He gives some examples of that (6).

• [100] In a second affidavit, Mr Bull proves his attendance at meetings by various minutes. He also produces a bundle of emails in this regard. He produces other documents concerning his involvement.

• [101] Section 459H(1) of the Corporations Act provides:

"459H Determination of application where there is a dispute or offsetting claim

(1) This section applies where, on an application under section 459G, the Court is satisfied of either or both of the following:

(a) that there is a genuine dispute between the company and the respondent about the existence or amount of a debt to which the demand relates;

• [102] Section 459J of the Corporations Act provides:

"459J Setting aside demand on other grounds

(1) On an application under section 459G, the Court may by order set aside the demand if it is satisfied that:

(a) because of a defect in the demand, substantial injustice will be caused unless the demand is set aside; or

(b) there is some other reason why the demand should be set aside.

(2) Except as provided in subsection (1), the Court must not set aside a statutory demand merely because of a defect."

• [103] The onus is on the applicant to establish the existence of a genuine dispute on the balance of probabilities.[10]
• [104] As to the requirements of the supporting affidavit, the following principles apply[11]:

(a) It must, as a minimum, contain the material facts on which the applicant intends to reply to show a genuine dispute.

(b) It may "read like a pleading" and need not detail in admissible form all the evidence that supports the contention of a genuine dispute.

(c) A mere assertion of denial is insufficient.

• [105] In BRC Group Pty Ltd v Watagan park Pty Ltd[12] it was said:

(a) The affidavit must "support" the application by providing the basis for establishing that there is a genuine dispute about the existence or amount of the debt.

(b) Most commonly this will be done by the deponent describing the dispute. That description will delineate the scope of the dispute.

(c) The ground for resisting the demand must be raised expressly, by necessary inference, or reasonably available inference.

(d) Where the dispute about the existence or amount of the debt is based purely on the construction of a document, the requirement may be satisfied by exhibiting the document.

(e) Mere assertion that the debt is disputed is insufficient.

(f) An affidavit filed within time that does not identify the dispute later sought to be relied upon is not a "supporting affidavit" insofar as the different genuine dispute is concerned. The question of sufficient identification will be considered in context, having regard to the degree of specificity with which the initial dispute is defined.

• [106] In light of the above statements, it is reasonably arguable that statements of conclusion like those in paragraphs 17, 21, 26, 28 and 29 of the first Robinson affidavit and paragraph 11 of the second affidavit are admissible as they are setting out grounds of dispute. Having made this observation, I consider the other paragraphs sufficiently raise the issues between the parties.
• [107] In Thomson v Australia and New Zealand Banking Group Ltd,[13] the Court of Appeal set out that the principles to be applied are as follows:

(a) for a dispute to be genuine, it must be bona fide and truly exist in fact;

(b) the grounds for alleging the existence of a dispute must be real and not spurious, hypothetical, illusory or misconceived;

(c) the dispute must have a sufficient objective existence and prima facie plausibility to distinguish it from a merely spurious claim, bluster or assertion, and sufficient factual particularity to exclude the merely fanciful or futile. Something between mere assertion and the proof that would be necessary in a court of law may suffice;

(d) a genuine dispute may involve a plausible contention requiring investigation and raise the same sort of considerations as the serious question to be tried test that applies in the case of interlocutory injunctions;

(e) the court should not uncritically accept statements about an alleged genuine dispute which are equivocal, lacking in precision, inconsistent with undisputed contemporary documents or inherently improbable;

(f) if the dispute appears to be something merely created or constructed in response to the pressure represented by the service of the statutory demand, then it is not advanced in good faith and will not be regarded as genuine; and

(g) whilst the underlying nature of the dispute about the existence of a debt must be exposed, the court will not deal with the merits and nothing of substance will be decided.

• [108] It was noted at [41] that the court does not conduct a mini trial or extended inquiry and does not determine the merits of the dispute. It determines whether a bona fide dispute exists.
• [109] In Ligon 158 Pty Ltd v Huber,[14] it was noted that the evidence for the applicant need not necessarily be the fullest or the best evidence available. The evidence need not conclusively prove the claim or otherwise be incontrovertible or substantially non-contestable. It was also said the task confronting the company is by no means a difficult or demanding one.[15] The claim will only fail where the claim is so devoid of substance that "no further investigation is warranted."

• [110] There is no doubt that a director of a company owes fiduciary duties to that company.[16] A fiduciary owes an obligation not to put himself or herself in a position of conflict where there is a real or substantial possibility of conflict between the director's interests and the director's duty to the company. As to whether there is a breach, the test is whether there is real and substantial possibility of a conflict.[17]
• [111] In Commonwealth Bank of Australia v Smith,[18] the Full Court of the Federal Court said that a fiduciary must avoid placing himself or herself in a position between duty and personal interest, and must avoid conflicting engagements. The reason is that with multiple engagements, the fiduciary may be unable to discharge adequately one without conflicting with his or her obligation and the other. It is not to the point that the fiduciary himself or herself may not stand to profit.
• [112] In Allco Funds Management Limited v Trust Company (RE Services) Limited[19] Hammerschlag J considered a case where a director of a company voted to cause that company to enter into a contract with another company of which he was also director. His Honour held:

(a) Directors of a company owe fiduciary duties to act in the best interests of the company and should not enter into engagements which may conflict with that duty. ([114])

(b) "Unless the articles of association of the company otherwise provide, a contract made in breach of this fiduciary duty, will be voidable at the option of the company unless the director makes a full disclosure of the nature of his interest in the contract to the members of the company, in general meeting, who must approve the contract by ordinary resolution. A provision in the articles may validate a contract which would otherwise be voidable under the general law. The director bears the onus of proving that he has strictly complied with such a provision: see Woolworths Limited v Kelly (1991) 22 NSWLR 189 at 207 and R v Donald, Ex Parte Attorney General [1993] 2 Qd R 680 at 684." ([116]).

• [113] The principle extends beyond cases where the director is also a director of another company. For example, if a solicitor acts for more than one party in a transaction,[20] it may be seen that a critical feature in these cases is the fact that the person is agreeing to act for or on behalf of the interests of another person.[21]
• [114] This principle must apply to a nominee. Nominee directors may act with the interests of their appointers in mind, provided they act with the interests of the company as a whole.[22] Indeed, in Hylepin Pty Ltd v Doshay Pty Ltd[23] it was noted that a nominee director may act in breach of his or her duty owed to the company if the company would not have made a decision.
• [115] As Edelman J said in Agricultural Land Management Ltd v Jackson (no 2)__[24] :

"The 'conflict rule' when concerned with conflicts between duty and personal interest is not limited merely to situations in which a fiduciary actually prefers personal interest. It includes also situations involving a potential for personal interest to be preferred or a potential for breach of duty to one principal where conflicting duties are owed to different principals."

• [116] Where there is a conflict, it may be resolved where the director has made full and complete disclosure about their conflict of interest and the shareholders of the company approved this by resolution. In Woolworths Ltd v Kelly [25] it was held that a contract made in breach of fiduciary duty will be voidable at the option of the company unless the director makes a full disclosure of the nature of his interest in the contract to the members of the company at a general meeting.
• [117] In R v Byrnes,[26] it was noted that being a fiduciary, the director of a first company must not exercise his or her powers for a benefit or gain of a second company without clearly disclosing the interests and obtaining the first company's consent.
• [118] The authorities make it clear that disclosure needed to have happened to the shareholders who could approve of any conflict. All facts should have been disclosed.[27]
• [119] Despite the submissions by the respondent, in this case there are sufficient facts raised which lead to an arguable case of breach of fiduciary duty, and the requirement of further investigation as follows:

(a) There is the fact Ms Saridas was the nominee director of the respondent.

(b) The conflict of interest was noted at the 2022 meeting.

(c) By 2023, there was a significant dispute between the respondent and the applicant. Ms Saridas knew this.

(d) At no stage at the 2023 meeting was any conflict of interest declared. She was still a nominee director at that point. Mr Johansen and Mr Beattie were not present at the 2022 meeting. It is arguable they should have been told of the conflict as the other directors were told in 2022.

(e) It is clear from the meeting in March 2023 that Ms Saridas was strongly pushing for the agreements to be concluded granting the respondent a 10 per cent economic interest and approving the respondent receiving a fee at 50 per cent basis points for a rolling term of three years for marketing and technical advisory services.

(f) Ms Saridas said in the meeting that this decision needed to be made that day.

(g) One of the other directors quite reasonably raised an issue as to the market value of the fees payable to the respondent. One does not know why the meeting could not have been adjourned to investigate the reasonableness of the fee demanded by the respondent.

(h) As it turns out, there were two votes against the proposition and two votes for. One of those votes was Ms Saridas who was voting for a proposal under which her appointer was to be paid a significant amount of money without any independent evidence of the reasonableness of the fee.

(i) This case concerns a fee of $125,000 per month (for a retainer) which is not insignificant on the evidence.

(j) There is the fact that Ms Saridas was the one appointed (with Mr Ryan) to negotiate the documentation with her own appointer.

(k) There is the fact that Ms Saridas signed the following agreements:

(i) The 2023 TSAA and EID.

(ii) The 2023 deed of settlement.

(iii) The deed dated 9 February 2024.

(l) There are the emails of August and November 2024 showing a very close relationship with the respondent and asking Mr Meka if he had a replacement director. It is inferred this related to the applicant as this coincides with when she resigned. They are not long after the February 2024 agreement was signed. They tend to support the contention of conflict.

• [120] It may be argued that the respondent knew of the conflict as they knew Ms Saridas was the nominee director and knew she was the one negotiating with it about the agreements.
• [121] As to the respondent's argument concerning the fact there was a new 2024 agreement, it does not matter much that new agreements were signed, because they were in similar terms to the existing ones. It was in effect a continuation of the arrangements agreed to by Ms Saridas, arguably in breach of her duty. As noted, Ms Saridas signed the new TSAA and EID as part of the deed of assignment and release and amendment and restatement in February 2024. That agreement was redone, simply to replace AQC with the applicant to fit in with the funding arrangement. The payment obligations to the respondent did not change. These are the obligations complained of. It may be argued by the applicant that the fact the new term sheet did not require a nominee director is not to the point.
• [122] In this particular case there is a valid question raised concerning the impartiality of Ms Saridas in entering into the various contracts. It is certainly a question warranting further investigation. It may ultimately be that it is determined that Ms Saridas did have a conflict of interest which was not fully disclosed at the March meeting and this infected her dealings with the various contracts. It may not be, but that is a triable issue. It is arguable at a trial that the applicant is entitled to rescind the agreements.[28]
• [123] Insofar as the respondent submits that the right to rescission has been lost due to delay and intervention[29], the fact is the respondent did not deliver these invoices until July 2025, after Ms Saridis left the company. There is an argument available to the applicant that it has only appreciated the conflict issue when Mr Robison looked through the records after the Statutory Demand had been served. There are real issues as to whether the applicant has engaged in conduct so as to lose its rights to rescind. As to whether the right to rescind is lost is a triable issue.
• [124] On the issue of ss 191 and 192 of the there is nothing in those sections which abrogates the right of a party to rely on the right to rescind a contract on the grounds of breach of fiduciary duty. Indeed, provides these sections are not in derogation of any general law rule about conflicts of interest.

• [126] The applicant submits that there is a dispute as to whether the respondent, in fact, is owed the fee, because it may be owed to M Resources (NSW) Pty Ltd instead. This warrants further investigation.
• [127] The respondent submits that that there is nothing to the point that there is an error in the reference to parties in the TSAA and the deed. This is simply an obvious error and should be read as such.[30] The fact is the annexures have the correct parties.
• [128] The respondent is correct. There is no genuine dispute in this regard. The error in the names was simply an error. The principles expressed in Fitzgerald v Masters[31] apply.

• [129] The applicant submits there is a dispute resolution procedure in the agreement which mandates the dispute being resolved through a meeting and expert determination. The statutory demand circumvents this process. The dispute resolution clause has been ignored and, in those circumstances, on case authority the parties should be held to the bargain which they struck. In those circumstances, the dispute resolution procedure should be permitted to run its course.
• [130] The respondent submits that any new grounds relied on are not appropriate because they need to be specified in the first affidavit. The dispute clause point was not raised in the first affidavit. In any event, it was pointed out that the dispute clause was no answer as there could still be separate proceedings. The authorities were mixed on whether a dispute clause could be relied on as another reason to set aside the statutory demand. It was submitted that an arbitration clause is not enough.
• [131] There is a threshold issue on whether the applicant is entitled to raise the dispute clause.
• [132] In Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund[32] Sundberg J held that the affidavit filed with the application under s 459G must, as a minimum, contain a statement of the material facts on which the applicant intends to rely to show a genuine dispute. This could not be cured by the filing of a supplementary affidavit after the expiration of the statutory period. On the other hand, if the supporting affidavit met the minimum requirements, then it could be supplemented by affidavits filed outside the period.
• [133] In Sceam Constructions Pty Ltd v Clyne[33] the Victorian Court of Appeal held that establishing the genuineness of the dispute requires material showing or from which it can be inferred that there is a real dispute. Most commonly this is done by the deponent describing the dispute. Where the dispute is based purely on the construction of a written agreement between the parties, then the support requirement may be satisfied by exhibiting the agreement without more.[34]

1. Pursuant to ss 459G and 459H or alternatively 459J of the Corporations Act 2001 (Cth) the Court orders that the creditor's statutory demand dated 10 July 2025 issued by the respondent to the applicant be set aside.
2. I will hear the parties on the question of costs.

[1] Variously referred to as the joint venture or JV.

[4] [2024] QCA 73.

[5] Robins v Incentive Dynamics Pty Ltd [2003] NSWCA 71; (2003) 45 ACSR 244.

[6] Turner v Labafox International Pty Ltd [1974] HCA 41; (1974) 131 CLR 660 at 670.

[7] Hylepin Pty Ltd v Doshay Pty Ltd [2021] FCAFC 201; (2021) 288 FCR 104.

[8] Objection is taken to this statement.

[9] Objection is taken to this as it is alleged by the respondent this is a new ground.

[10] Australian Communication Exchange Ltd v Pilot Partners Pty Ltd [2017] QSC 176 at [19].

[11] Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund [1996] FCA 822; (1996) 70 FCR 452 at p 459.

[12] [2025] VSCA 36 at [47].

[13] [2024] QCA 73 at [40].

[14] [2016] NSWCA 330; (2016) 117 ACSR 495 at [9]. Also see Australian Communication Exchange Ltd v Pilot Partners Pty Ltd [2017] QSC 176 at [19]- [20].

[15] [2016] NSWCA 330; (2016) 117 ACSR 495 at [8]. Also see Britten-Norman Pty ltd v Analysis & Technology Australia Pty Ltd [2013] NSWCA 344; (2013) 85 NSWLR 601 at [30]- [31].

[16] Hospital Products Ltd v United States Surgical Corp [1984] HCA 64; (1984) 156 CLR 41 at 96-97.

[17] Australian Careers Institute Pty Ltd v Australian Institute of Fitness [2016] NSWCA 347; (2016) 340 ALR 580 at [3] and [132].

[18] [1991] FCA 375; (1991) 42 FCR 390 at pp 392-393.

[19] [2014] NSWSC 1251 at [114].

[20] Beach Petroleum NL v Kennedy [1999] NSWCA 408; (1999) 48 NSWLR 1 at [202]- [205].

[21] Hospital Products Ltd v United States Surgical Corp [1984] HCA 64; (1984) 156 CLR 41 at 96-97.

[22] Australian Institute of Fitness Pty Ltd v Australian Institute of Fitness (Vic/Tas) Pty Ltd (No 3) [2015] NSWSC 1639; (2015) 109 ASCR 369 at [106]- [107].

[23] [2021] FCAFC 201; (2021) 288 FCR 104 at [30].

[24] [2014] WASC 102; (2014) 48 WAR 1 at [266].

[25] (1991) 22 NSWLR 189 at 207.

[26] [1995] HCA 1; (1995) 183 CLR 501 at 516-517.

[27] Spellson v George [1992] NSWCA 254; (1992) 26 NSWLR 666 at 670.

[28] Allco Funds Management Limited v Trust Company (RE Services) Limited [2014] NSWSC 1251 at [114]- [116].

[29] Robins v Incentive Dynamic Pty Ltd (in liq) (2003) 45 ASCR 244 at [73].

[30] Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420 at 426-427.

[31] [1956] HCA 53; (1956) 95 CLR 421.

[32] [1996] FCA 822; (1996) 70 FCR 452 at page 459.

[33] [2021] VSCA 270; (2021) 64 VR 404 at [39].

[34] This has been accepted in Queensland in QNI Resources Pty Ltd v North Queensland Pipeline No 1 Pty Ltd [2017] QCA 297 at [53].

[35] [2010] NSWSC 309 at [15], [18] and [19].

[36] [2003] NSWSC 654 at [16].

[37] [2011] NSWSC 512 at [105]- [106]. Also see Re Vivo International Corporation Pty Ltd [2013] NSWSC 1462.

[38] [2017] QCA 297 at [45].