[2026] FCA 435
General information, not legal advice.
Federal Court of Australia
2026-03-17
O'Sullivan J
Original judgment source is linked above.
Algeri (Administrator), in the matter of Murray & Roberts Pty Ltd (Administrators Appointed) (No 2) [2022] FCA 1563
Crawford, in the matter of Pro-pac Packaging Ltd (administrators appointed) [2025] FCA 1357
Dixon (Administrator), in the matter of Demolition Co Pty Ltd (Administrator Appointed) [2026] FCA 222
Farnsworth v About Life Pty Ltd (Administrator appointed), in the matter of About Life Pty Ltd (Administrator appointed) [2019] FCA 11
In the matter of Daisytek Australia Pty Ltd (Administrators appointed) [2003] FCA 575; (2003) 45 ACSR 446
Strawbridge, in the matter of Virgin Australia Holdings Ltd (administrators appointed) (No 2) [2020] FCA 717; (2020) 144 ACSR 347
Sylvia, in the matter of Austcorp Group Ltd (Administrators Appointed) [2009] FCA 636
BIRCH (ADMINISTRATOR), IN THE MATTER OF VITRINITE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (ADMINISTRATORS APPOINTED)
THOMAS DONALD BIRCH AND JEREMY JOSEPH NIPPS IN THEIR CAPACITIES AS JOINT AND SEVERAL ADMINISTRATORS OF THE SECOND PLAINTIFF TO THE ELEVENTH PLAINTIFF
VITRINITE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (ADMINISTRATORS APPOINTED) ACN 167 744 578 (and others named in the Schedule)
(a) the Seventh and Eighth Plaintiffs be extended to 20 April 2026; and
(b) each of the Second to Sixth Plaintiffs and the Ninth to Eleventh Plaintiffs be extended to 30 June 2026.
B. Varying personal liability and entry into documents
(a) the liabilities of the First Plaintiffs (in their capacities as joint and several voluntary administrators of the Seventh Plaintiff) incurred with respect to any obligations arising out of, or in connection with, the funding deed between the Second Plaintiff, the Seventh Plaintiff and the First Plaintiffs (in their capacity as joint and several voluntary administrators of the Seventh Plaintiff) dated 27 February 2026 (VMM Funding Deed), including as a result of any variations to it, are in the nature of debts incurred by the First Plaintiffs in the performance and exercise of their functions as joint and several voluntary administrators of the Seventh Plaintiff; and
(b) notwithstanding that the liabilities referred to in paragraph 3(a) are debts incurred by the First Plaintiffs in the performance and exercise of their functions as joint and several voluntary administrators of the Seventh Plaintiff, the First Plaintiffs will not be personally liable to repay such debts or satisfy such liabilities incurred by them under or in connection with the VMM Funding Deed, to the extent that their rights of indemnity and lien under sections 443D, 443E and 443F of the Corporations Act are insufficient to satisfy such debts and/or liabilities arising out of, or in connection with the VMM Funding Deed.
(a) the liabilities of the First Plaintiffs (in their capacities as joint and several voluntary administrators of the Eighth Plaintiff) incurred with respect to any obligations arising out of, or in connection with, the funding deed between Vitrinite, the Eighth Plaintiff and the First Plaintiffs (in their capacity as joint and several voluntary administrators of the Eighth Plaintiff) dated 27 February 2026 (Holston Funding Deed), including as a result of any variations to it, are in the nature of debts incurred by the First Plaintiffs in the performance and exercise of their functions as joint and several administrators of the Eighth Plaintiff; and
(b) notwithstanding that the liabilities referred to in paragraph 4(a) are debts incurred by the First Plaintiffs in the performance and exercise of their functions as joint and several voluntary administrators of the Eighth Plaintiff, the First Plaintiffs will not be personally liable to repay such debts or satisfy such liabilities incurred by them under or in connection with the Holston Funding Deed, to the extent that their rights of indemnity and lien under sections 443D, 443E and 443F of the Corporations Act are insufficient to satisfy such debts and/or liabilities arising out of, or in connection with the Holston Funding Deed.
(a) where the Administrators have an email address for a creditor, by sending a copy of the orders to the creditor by email;
(b) where the Administrators do not have an email address for a creditor, by sending a copy of the orders to the postal address of the creditor as is recorded in the books and records of the Company; and
(c) by posting a copy of the orders to the Cor Cordis website at https://creditorsportal.corcordis.com.au/.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(a) causes no material prejudice to the group entities' creditors; and
(b) allows further investigations and a report to be made by the Administrators such that creditors can make an informed decision on the future of the companies.
(a) The power to extend the period should be exercised infrequently as it is an important objective of Part 5.3A of the Corporations Act that creditors be fully informed about the company's position as early as possible and have an opportunity to vote on its future as soon as possible;
(b) The function of the court is to strike an appropriate balance between the legislatures expectation that the administration will be a relatively swift and summary procedure, however undue speed should not be allowed to prejudice sensible and constructive actions directed towards maximising the return for creditors and any return for shareholders;
(c) Prospects of a better outcome for creditors through a longer period of administration may outweigh the general expectations of a prompt resolution of the administration;
(d) A factor that counts against the too ready grant of an extension is that whilst the voluntary administration continues, lessors, secured creditors and others are unable to enforce remedies;
(e) The question is whether an extension is necessary to enable the administrators to prepare and provide the necessary reports and statements and in particular to arrive at an opinion: Insolvency Practice Rules (Corporations) 2016 (Cth) r 75-225, s 439A, so as to be able to inform the creditors adequately, as well as being in a position to decide whether to terminate the administration, execute a DoCA, or place a company in liquidation;
(f) It is often desirable to include a Daisytek order permitting the meeting to be held at any time during the convening period as extended: About Life at [5] referring to Sylvia, in the matter of Austcorp Group Ltd (Administrators Appointed) [2009] FCA 636 at [18] (Lindgren J) and the cases cited therein; and
(g) The opinion of the Administrator as to the need for an extension will be given weight in an application such as this: Strawbridge, in the matter of Virgin Australia Holdings Ltd (administrators appointed) (No 2) [2020] FCA 717 at [68]; [2020] FCA 717; (2020) 144 ACSR 347 (Middleton J).
See also Dixon (Administrator), in the matter of Demolition Co Pty Ltd (Administrator Appointed) [2026] FCA 222 (Neskovcin J); Algeri (Administrator), in the matter of Murray & Roberts Pty Ltd (Administrators Appointed) (No 2) [2022] FCA 1563 (Banks-Smith J) at [7]-[14].
(a) their current view is that they will be unable to make comprehensive or complete recommendations to creditors on the future of the companies in accordance with their obligations under s 439A of the Corporations Act and r 75-225 of the Insolvency Practice Rules such that the creditors will be unable to make an informed decision;
(b) the complexity of the business requires time for the sale process to be undertaken in accordance with the Administrators' statutory obligations for potential buyers to be identified and negotiations concerning a potential DoCA to be ascertained;
(c) an extension of the convening period will allow the Administrators to assess any proposals received by the Receivers through their sale process which may affect or include the VMM entities and will allow consideration of any such proposals in the context of the broader restructuring of the group as a whole;
(d) an extension to the convening period will enable the sale process to be undertaken within a reasonable time. It will allow for due diligence to be completed and offers made. It will also allow for negotiations leading to the execution and completion of binding agreements whilst maintaining the company's ability to retain licenses, contracts or other rights that may be unavailable should the companies be placed in liquidation;
(e) a sale as a going concern is likely to permit the companies' commercial relationships to continue and thereby maximise the return to creditors; and
(f) if the companies are placed into liquidation prior to the completion of the sale process, the possible avenues for the sale or restructure of the companies will be limited and will likely to damage the reputation and goodwill of the companies themselves. That is likely to result in the receipt of lower offers than if the companies remained in administration thereby leading to a worse outcome for creditors and stakeholders of the companies.
(a) Determine employee entitlements;
(b) Review the companies' accounts;
(c) Identify, reconcile and determine creditor claims and ascertain asset ownership - that is particularly so where the companies have, in broad terms, operated as a group;
(d) Respond to ongoing queries from creditors;
(e) Ascertain the existence of any claims (including intercompany claims); and
(f) Investigate the business and affairs of each of the companies and consider any claims that may be pursued by a liquidator to assist the Administrators to form their recommendation to creditors at the second meetings.
Relief from personal liability under the funding deeds
(a) pay employee entitlements accrued or related to the period on or prior to 28 February 2026 which is the date the mine was placed into care and maintenance;
(b) ensure the Administrators could carry out their functions under Part 5.3A of the Corporations Act in the short term;
(c) preserve the value of the business and assets of the companies;
(d) maximise the chances of the business of the companies continuing in existence and being sold or restructured on a going concern basis for the best possible price; and
(e) fund costs associated with the administration and ongoing care and maintenance of the Vulcan Coal Mine, including the wages of the 23 employees retained to assist the Receivers and Administrators during the administration period.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan .
QUEENSLAND COKING COAL PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (ADMINISTRATORS APPOINTED) ACN 129 600 004
QLD COAL AUST NO. 1 PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (ADMINISTRATORS APPOINTED) ACN 135 731 154
CALLAN COKING COAL PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (ADMINISTRATORS APPOINTED) ACN 644 199 397
TOGARA SOUTH PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (ADMINISTRATORS APPOINTED) ACN 680 664 706
VULCAN MINE MANAGEMENT PTY LTD (ADMINISTRATORS APPPOINTED) ACN 639 921 430
HOLSTON PTY LTD (ADMINISTRATORS APPOINTED) ACN 641 878 462
VECTOR CIVIL & CONSTRUCTION PTY LTD (ADMINISTRATORS APPOINTED) ACN 653 275 159
RANGER EQUIPMENT PTY LTD (ADMINISTRATORS APPOINTED) ACN 630 099 302
VULCAN SALES & MARKETING PTY LTD (ADMINISTRATORS APPOINTED) ACN 651 604 732