DD INVESTMENT WA PTY LTD -v- INFINITE GREEN ENERGY LIMITED [No 2] [2025] WASC 137 (17 April 2025)

1. Despite having been afforded an opportunity on 14 March 2025 to file evidence and submissions in opposition to DD Investment's winding up application,[7] before the appointment of the administrators no papers were filed on behalf of Infinite Green Energy. There was therefore no evidence before the court to rebut the presumption of insolvency arising from the failure by Infinite Green Energy to comply with a statutory demand.

1. In support of an adjournment of the application to wind up Infinite Green Energy to a date not before 26 May 2025 (so as to let the administration continue), counsel for the administrators read the affidavit of James John Davidson (a solicitor employed by Blackwall Legal) sworn on 11 April 2025, to which Mr Davidson attached documents marked JJD1 to JJD29.
2. As to the various entities over which the administrators had been appointed, on the basis of records maintained by ASIC, among other things Mr Davidson deposed that:

(a) Infinite Green Energy is the holding company (or ultimate holding company) of the following entities:

(i) Arrowsmith HP1 Pty Ltd;

(ii) Arrowsmith HP2 Pty Ltd;

(iii) Infinite Blue Energy Group Pty Ltd;

(iv) Infinite Blue Energy Management Group Pty Ltd; and

(v) NHP TopCo Pty Ltd;

(b) NHP TopCo Pty Ltd in turn is the holding company of the following entities:

(i) NSF HoldCo Pty Ltd, which in turn is the holding company of Meg HP1 Pty Ltd; and

(ii) NHP HoldCo Pty Ltd, which in turn, is the holding company of NHP OpCo Pty Ltd;

(c) on 7 April 2025 the administrators were appointed joint and several voluntary administrators of Infinite Green Energy and of all of the entities described in [23(a)] and [23(b)] above (together described as the IGE Group) pursuant to s 436A(1) of the Corporations Act; and

(d) on 7 April 2025, two Forms 505 were lodged by or on behalf of Messrs Dominish, Shaw, Albarran and Kijurina of Hall Chadwick in respect of their appointment (or purported appointment) as joint and several voluntary administrators of Infinite Green Energy and Meg HP1 Pty, respectively pursuant to s 436C(1) of the Corporations Act.

1. Mr Davidson also attached to his affidavit an email communication sent by Mr Dominish to Mr Pearce in which Mr Dominish confirmed that he and Messrs Shaw, Albarran and Kijurina had withdrawn their appointment (or purported appointment) as joint and several voluntary administrators of Infinite Green Energy and Meg HP1 Pty Ltd, and were in the process of notifying ASIC of the same.[8]

1. Counsel for the administrators also read four affidavits made by Jared Troy Palandri, two sworn on 14 April 2025, the third sworn on 16 April 2025 and the fourth sworn on 17 April 2025. Mr Palandri is an executive director of the accounting and professional services firm, KordaMentha, with over 20 years of experience in corporate insolvency and restructuring; a registered liquidator (registered liquidator number 563804); and a joint and several voluntary administrator of Infinite Green Energy, appointed with Mr Tucker.
2. Mr Palandri attached to his first affidavit documents marked JTP1 to JTP10. Among other things, in his first affidavit Mr Palandri deposed to the background and operations of Infinite Green Energy, noting that the administrators' investigations into its affairs (and its subsidiaries) were then at a very preliminary stage.
3. Mr Palandri deposed that on the basis of investigations that had been undertaken, the administrators understood that Infinite Green Energy operates in the renewable energy sector and holds, via its various subsidiaries, interests in wind and solar power assets which are at different stages of construction in Western Australia; Infinite Green Energy's primary source of revenue is the sale of electricity, typically sold on a wholesale basis to the Australian Energy Market Operator; and immediately prior to their appointment, Infinite Green Energy had employed one full-time employee (its chief executive officer Stephen Gauld, who is also a director), and Infinite Blue Energy Management Group Pty Ltd (administrators appointed) (a subsidiary of Infinite Green Energy) had employed four employees.
4. In addition to the matters deposed to by Mr Davidson (summarised at [23] above), Mr Palandri deposed that the administrators' investigations also revealed that it has a 70% shareholding in Arrowsmith South East Pty Ltd; a 100% shareholding in Big Blue Energy Limited (an entity registered and domiciled in New Zealand); and wholly owns Infinite Blue Energy Italia S.p.A (an entity registered and domiciled in the Italian Republic).

1. Mr Palandri deposed to the circumstances of the appointment of the administrators and the steps then taken by the administrators. In this regard, Mr Palandri deposed that immediately following their appointment, the administrators (among other things):

(a) took possession and control of the books and records of the IGE Group;

(b) continued to trade and operate the IGE Group;

(c) continued to employ one full-time employee (Mr Gauld) in Infinite Green Energy and four full-time employees in Infinite Blue Energy Management until 11 April 2025, when the administrators terminated the employment of the Infinite Blue Energy Management employees (noting that one of the employees had transitioned employment to Infinite Green Energy);

(d) commenced investigations into the affairs and financial position of the IGE Group, including for the purposes of:

(i) confirming the level of indebtedness of each entity in the IGE Group;

(ii) assessing the entitlements of priority creditors (employees and secured creditors);

(iii) ascertaining the value of the assets within the IGE Group;

(iv) identifying possible opportunities to recapitalise the IGE Group; and

(v) liaising with shareholders as required;

(e) issued initial correspondence to the creditors of the IGE Group dated 10 April 2025, providing (among other things) information in relation to the administrators' appointment (including a copy of their declaration of independence, relevant relationships and indemnities), the external administration process, and their rights as creditors;

(f) convened the first meetings of the creditors of the IGE Group, as required under s 439E of the Corporations Act;

(g) issued initial correspondence to shareholders of Infinite Green Energy and subsequently held a meeting with shareholders of Infinite Green Energy to consider possible restructuring options, and issued a subsequent circular setting out the terms of a proposed administration loan agreement;

(h) held a meeting with the employees of the IGE Group to provide them with information in relation to the external administration process;

(i) engaged with the directors of the IGE Group in an effort to gather as much relevant information as possible;

(j) issued correspondence to all relevant financial institutions and secured parties, notifying them of the administrators' appointment and requesting that all cash of the IGE Group be transferred to designated administration bank accounts;

(k) engaged with the controllers and receivers and managers of certain entities part of the IGE Group to co-ordinate operational matters, particularly in relation to the ongoing trading of the business of the IGE Group;

(l) engaged with parties who had expressed an interest in acquiring some or all of the IGE Group or its assets;

(m) engaged with advisors to the shareholders about raising money to fund the administrators' loan and the restructure of Infinite Green Energy and the IGE Group;

(n) commenced work on a restructure and recapitalisation plan to provide to shareholders in relation to Infinite Green Energy and the IGE Group;

(o) undertook motor vehicle and property searches in the name of Infinite Green Energy;

(p) investigated Infinite Green Energy's historical capital raisings, with a particular focus on issues around the distinction between debt and equity which may have a material effect on Infinite Green Energy's financial position and the makeup of the creditor body; and

(q) liaised with the Australian Energy Market Operator in relation to operations at the Solar Farm.

Appointment of Hall Chadwick representatives as administrators

1. Mr Palandri also deposed to his understanding concerning the purported appointment of the Hall Chadwick representatives, noting that no claim continued to be pressed with respect to their purported appointment as administrators of Infinite Green Energy or Meg HP1 Pty Ltd.

1. As to the appointment of controllers, Mr Palandri deposed that the records maintained by ASIC reveal that on 7 April 2025, a Form 505 was lodged by or on behalf of the Hall Chadwick representatives in respect of their appointment as joint and several controllers of Infinite Blue Energy Group Pty Ltd, or more specifically, the property situated at lot 703 on deposited plan 425399, being the whole of the land comprised in certificate of title volume 4038 and folio 651, pursuant to a registered mortgage numbered P704110 held by Legal Mortgage Holdings.
2. Mr Palandri in his first affidavit deposed that the administrators understood that the appointment of the controllers took place after the appointment of the administrators, and on that basis, it would only be a valid appointment if the assets the subject of the mortgage were all or substantially all of the assets of Infinite Blue Energy Group, but the administrators were not then yet in a position to determine whether that was the case.

1. As to the appointment of receivers and managers, Mr Palandri deposed that on 8 April 2025, Legal Mortgage Holdings appointed Messrs Dominish, Shaw, Albarran, and Kijurina of Hall Chadwick as joint and several receivers and managers of Meg HP1 Pty Ltd and of specified assets and other items of property of that entity; and of Infinite Green Energy and of specified assets and other items of property of Infinite Green Energy.

Co-operation and co-ordination with Hall Chadwick

1. At par 27 of his first affidavit, Mr Palandri deposed that a proposal in the following terms had been put to Messrs Dominish, Shaw, Albarran and Kijurina as receivers and managers on 10 April 2025:

(a) the Receivers provide the Administrators with three weeks (or such longer period as may be agreed) to engage with interested parties regarding a possible recapitalisation and restructure of the IGE Group; and

(b) during that period, the Receivers:

(i) be responsible for trading the IGE Group;

(ii) preserve and secure the assets of the IGE Group;

(iii) prepare an information memorandum in respect of the assets and operations of the IGE Group in anticipation of a sale and restructure/recapitalisation campaign, if required; but

(iv) refrain from commencing any sales campaign in respect of the IGE Group and its assets; and

(c) the Administrators be responsible for communicating with the shareholders in relation to a recapitalisation and restructure of the Defendant, and provide appropriate updates to the Receivers in relation to any proposals received.

1. Mr Palandri also deposed that in response to that proposal, on 10 April 2025 Mr Albarran responded, noting that the receivers and managers would consider the proposal but were not in a position to agree to it without understanding the financial position of Infinite Green Energy and considering their obligations pursuant to s 420A of the Corporations Act.
2. While the receivers and managers had not confirmed agreement in writing to the proposal by 14 April 2025, Mr Palandri deposed that he understood from subsequent conversations with the receivers and managers that they were content for the administrators to proceed on the basis proposed by the administrators while the receivers and managers further confirmed the financial position of the IGE Group including the entities over which they had been appointed.

1. Mr Palandri deposed that the first meetings of creditors had been convened for 11.00 am on Thursday, 17 April 2025, as required under s 439E of the Corporations Act; and that as at the date of his first affidavit, the administrators did not intend to seek an order extending the date by which the second meetings of the creditors of the IGE Group must be convened under s 439A of the Corporations Act.
2. That being the case, unless Infinite Green Energy were wound up prior, Mr Palandri deposed that he and Mr Tucker expected the voluntary administration of the IGE Group to be conducted approximately according to the following timeline:

(a) 15 April 2025: potential administration funding to be confirmed;

(b) 15 - 16 April 2025: high level restructuring or recapitalisation overview to be presented to shareholders including any shareholders participating in any administration funding;

(c) 17 April 2025: the first meetings of creditors of the IGE Group;

(d) 22 April 2025: ongoing communications about potential restructure proposal or proposals;

(e) 28 April 2025: formulation of any final recapitalisation or restructure proposal and presentation to Legal Mortgage Holdings and Messrs Dominish, Shaw, Albarran, and Kijurina of Hall Chadwick as joint and several receivers and managers for consideration;

(f) 5 May 2025: formal documentation of any transaction with shareholders or other relevant party and satisfaction of conditions precedent to completion or transaction (whether by way of asset or share sale, or deed of company arrangement proposals);

(g) 12 May 2025: administrators issue their report to creditors under s 439A of the Corporations Act and convene the second meetings of the creditors of the IGE Group; and

(h) 19 May 2025: the second meetings of the creditors of the IGE Group (and execution of any deed of company arrangements).

1. Among other things, Mr Palandri deposed that while the administrators had commenced an urgent assessment of the financial position and affairs of Infinite Green Energy upon their appointment, their investigations remained at an early stage such that much of the information then available was likely to be incomplete, and their ability to assess the accuracy of that information was limited.
2. With those caveats, Mr Palandri set out at par 35 of his affidavit the administrators' preliminary findings in the following terms:

(a) the accounting records of [Infinite Green Energy] (and the broader IGE Group) are only current to 31 December 2024;

(b) the established practice appears to have been for liabilities incurred by any entity in the IGE Group to be recorded in [Infinite Green Energy's] accounts as a liability of [Infinite Green Energy], and paid accordingly;

(c) where [Infinite Green Energy] paid an expense or satisfied a liability of another entity in the IGE Group, a corresponding intercompany loan was recorded in the accounting records of [Infinite Green Energy];

(d) according to [Infinite Green Energy's] financial statements, as at 31 December 2024, [Infinite Green Energy] had creditors owed a total of approximately $20.3 million; and

(e) as at 31 December 2024, [Infinite Green Energy] had material accumulated tax losses the value of which is set out in [Mr Palandri's] Confidential Affidavit.

1. Mr Palandri also noted that there were some reasons to doubt the veracity or currency of some of the information in the management accounts. Among other things, he noted that it appeared to be the case that a number of capital raisings (which in practice may be characterised as the issue of equity) may have been recorded in the accounts of Infinite Green Energy as debt rather than equity. Mr Palandri deposed that this was a matter that the administrators were investigating.
2. Mr Palandri also deposed that based on their preliminary assessment, the administrators understood the major assets of the IGE Group were held as follows:

Australian Taxation Office research and development refund

1. As was noted by Mr Palandri, the recorded book value and in some instances, the appraised value of the above assets, were disclosed in his confidential affidavit.

1. Mr Palandri deposed that the administrators had not yet commenced any formal sales campaign or publicity in respect of the potential restructure or recapitalisation of the IGE Group, nor in respect of the sale of any of its assets. He also deposed that nonetheless, as at the date of his first affidavit (14 April 2025), the administrators had received expressions of interest from eight parties in relation to a possible recapitalisation and restructure of Infinite Green Energy and the IGE Group. (Mr Palandri also noted that the identities of those interested parties, together with the nature of that interest, were disclosed in his confidential affidavit.)
2. Mr Palandri further deposed that he had separately had a discussion with Mr Dominish on the morning of 11 April 2025, in the course of which Mr Dominish had told Mr Palandri that Mr Cao had expressed interest to Mr Dominish in acquiring some or all of the IGE Group by way of a deed of company arrangement in the event the voluntary administration of Infinite Green Energy was allowed to complete. Mr Palandri also attached to his first affidavit an email chain from 13 April 2025 in which Mr Cao expressed his support for the funding of the potential restructure process and indicated that he was 'fully committed to assisting in any way'.[9] (It is convenient to note here that in her second affidavit, Ms Srivastava sought to correct the position of DD Investment as was intended to be conveyed by Mr Cao, that is, a commitment to assisting with the proposed approach that accommodated DD Investment's position, but not to assisting with any deed of company arrangement whatsoever.)
3. Based on these matters, Mr Palandri deposed that he considered that there was a material prospect that one or more parties would submit a proposal to recapitalise and restructure Infinite Green Energy in the event the voluntary administration of Infinite Green Energy was allowed to complete.
4. Mr Palandri also deposed that he further considered that a suitable proposal was more likely to be made, and any such proposal was more likely to provide for a greater return to the creditors of Infinite Green Energy, if it could be made in the context of a voluntary administration, rather than a liquidation. He deposed that this was because a voluntary administration allows for (or at least more easily allows for) the proposal of a deed of company arrangement which could allow an incoming purchaser to acquire shares in Infinite Green Energy (either by the issue of new shares or potentially pursuant to s 444GA of the Corporations Act) thereby preserving the existing group structure; and also that a transaction of this nature is, in Mr Palandri's professional opinion, likely to be more attractive to an incoming purchaser than a purchasing specific asset in a liquidation scenario because:

(a) the purchaser may be able to avoid any unnecessary duties arising;

(b) the purchaser may be able to receive the benefit of Infinite Green Energy's accumulated tax losses;

(c) the purchaser would have the ability to preserve the intercompany loans, which may be of some benefit;

(d) there would be no unnecessary need to go to the expense, time and risk associated with the transfer or assignment of assets, including leases and licences, many of which may require counterparty consent or regulatory approvals;

(e) the transaction costs may be lower, noting the purchaser would not need to acquire the key assets of the IGE Group from the relevant entities in a piecemeal fashion; and

(f) Infinite Green Energy would avoid liquidation, which may trigger certain rights of termination under key contracts even where those contracts are in the name of the Infinite Green Energy's subsidiaries.

1. In respect of the above observations, Mr Palandri again noted that the administrators' investigations were at an early stage and that the administrators had not satisfied themselves that they had been provided all relevant contracts or documents in respect of the IGE Group's assets, nor had they assessed the legal or commercial position in respect of those matters.
2. Acknowledging the same, Mr Palandri also deposed that it was his professional opinion that the benefits associated with a transaction of this nature likely mean that an incoming purchaser or investor would be more likely to be prepared to pay a greater amount under a deed of company arrangement than he, she or it would under a series of assets purchase agreements in a liquidation scenario.
3. Further, Mr Palandri deposed that given the relative nascency of their appointment, the administrators could not yet opine on the likely return to creditors in a liquidation scenario, which he deposed would be investigated and considered by the administrators during the course of the voluntary administration, and would ultimately be the subject of a report to creditors under s 439A of the Corporations Act.
4. He also deposed that if the administrators were to form the view that liquidation of Infinite Green Energy would provide for a greater return to its creditors, the same would be recorded in the report to creditors as required under s 75‑225(3)(b)(iii) of the Insolvency Practice Rules (Corporations) 2016 (Cth), and a recommendation would be made accordingly. Mr Palandri deposed that in such a scenario, the only difference between:

(a) Infinite Green Energy entering liquidation by order of the court on the application of DD Investment; and

(b) Infinite Green Energy instead entering liquidation by the resolution of creditors at the second meeting of its creditors,

would be a delay of, perhaps, eight weeks, and the costs and expenses incurred by the administrators during the voluntary administration period.

1. Mr Palandri also deposed that it was his professional opinion that the delay and costs associated with a delayed commencement of liquidation were outweighed by the opportunity for a materially higher return to creditors that may be provided for by a voluntary administration and possible deed of company arrangement.

1. As to the funding of the administration, Mr Palandri deposed that there was a material prospect that the administrators would receive funding from shareholders who had indicated their interest to recapitalise or restructure Infinite Green Energy. Mr Palandri further deposed that for example, a group of the current shareholders of Infinite Green Energy had suggested that they may provide funding which may ultimately form part of a future proposal for a deed of company arrangement.
2. As at the date of his first affidavit, Mr Palandri noted that the administrators had received relatively firm commitments from some shareholders for provision of approximately $606,000 by way of administration funding, although formal documentation had not yet been executed.

1. In his first affidavit, Mr Palandri deposed that based on his preliminary assessment of the financial position of Infinite Green Energy and asset profile, and for the reasons summarised in his affidavit, it was his professional opinion that recapitalising and restructuring Infinite Green Energy by way of a deed of company arrangement was its only meaningful prospect of continuing in existence; that there was a significant prospect that the creditors of Infinite Green Energy (and the creditors of the other entities in the IGE Group) would receive a higher return if the voluntary administration of Infinite Green Energy was allowed to complete; and for those reasons, adjourning the hearing of DD Investment's application to wind up Infinite Green Energy to 26 May 2025 would be in the best interests of Infinite Green Energy and its creditors, and the creditors of the other entities in the IGE Group.

1. The second affidavit made by Mr Palandri was marked confidential. Mr Palandri deposed to matters which were confidential and commercially sensitive relating to Infinite Green Energy, including the estimated value of its assets. These reasons have been prepared so as to not disclose the substance of the confidential information before the court.

1. Counsel for the administrators read the third affidavit made by Mr Palandri on 16 April 2025, to which he attached documents marked JTP14 to JTP15.
2. Among other things, Mr Palandri deposed that investigations had continued in relation to the affairs of Infinite Green Energy. In this regard, he deposed that in the preparation for the first meetings of creditors, the administrators and KordaMentha staff had continued to review and investigate the books and records of Infinite Green Energy; that the administrators had engaged solicitors to review some investment documentation (which had given rise to debts or asserted debts or claims against the Infinite Green Energy); that in some instances, the arrangements of Infinite Green Energy with counterparties were quite complicated and had given rise to questions over the nature and value of certain stakeholders' claims or interests; and that the administrators intended to continue to review Infinite Green Energy's books and records, and to liaise with their solicitors with respect to the process for admitting or rejecting proofs of debt at the first meetings of creditors.
3. Mr Palandri also deposed that the administrators had continued to investigate high level restructuring/recapitalisation opportunities, consistent with the matters deposed to in his first affidavit. Among other things, he deposed the opportunities included potential restructure options involving the existing shareholder group, but that the administrators were also actively seeking opportunities to engage with other parties about deed of company arrangement opportunities; that while he had intended to send interested parties a fulsome investor pack on 16 April 2025 with details allowing interested parties to consider possible deed of company arrangement proposal structures and to facilitate further discussions, following the further work undertaken by the administrators to understand the assets, liabilities and other relevant matters pertaining to Infinite Green Energy and the IGE Group during the course of that week,[10] the administrators had decided to delay the issue of a fulsome package of documents until 24 April 2025; and the administrators had prepared two circulars, both issued on 16 April 2025.[11]
4. As to the circulars, the first was issued to known interested or potentially interested parties, which sought expressions of interest directly for any potential restructuring options; and the second was issued to shareholders.
5. Mr Palandri also deposed that he continued to hold the view that the best prospect of a successful restructure of the IGE Group was likely to involve a whole-of-group transaction, which was likely to involve all or much of the assets of the entities in the IGE Group remaining in place with deed of company arrangement transactions to manage some legacy debt (provided the transaction led to a better result for creditors than liquidation) and potentially transactions in respect of the companies' shareholding. Mr Palandri also noted in his third affidavit that such a transaction which leaves assets in place would only be possible through a deed of company arrangement.
6. In his third affidavit, Mr Palandri also gave an account of a recent communication with Mr Dominish, and deposed that the administrators had continued to liaise cooperatively with the receivers and managers.
7. As to the funding of the administration, Mr Palandri deposed that the administrators had been garnering shareholders' interest in their participation in a proposed funding arrangement to allow the administration of the IGE Group to continue, with a view to enabling a restructure and recapitalisation to be implemented, either by way of a proposal from those funding shareholders (alone or together with others), or from a different party.
8. As to funding, among other things, Mr Palandri deposed to the basis of his belief that on 14 April 2025, the amounts committed by interested shareholders had reached the target amount for the funding of the administration; that as a result, the administrators intend to proceed with the proposed facility to secure funding in the amount of $750,000; and that after the finance documentation was finalised, the administrators expected that a court application would promptly be filed seeking to limit the administrators' personal liability pursuant to s 447A of the Corporations Act.

1. Counsel for the administrators also read the fourth affidavit made by Mr Palandri on 17 April 2025.
2. In short, Mr Palandri deposed in his fourth affidavit that the first meetings of creditors of the IGE Group had been held concurrently at 11.00 am on 17 April 2025, and that due to the hearing on the afternoon of 17 April 2025 being only a few hours after the conclusion of the first meeting of creditors, the administrators had not yet finalised the minutes of the first meetings of creditors.
3. Mr Palandri also deposed at par 13 of his fourth affidavit that notwithstanding this, he could note as follows:

(a) he chaired the first meetings of creditors;

(b) there was a total of 11 creditors present and voting at the first meetings of creditors, whose admitted claims come to a total of $14,386,129.85;

(c) no resolution to replace the administrators as the administrators of the IGE Group was proposed or passed; and

(d) a committee of inspection was appointed in respect of Infinite Green Energy comprising members identified in his fourth affidavit.

1. In his fourth affidavit, Mr Palandri deposed that during the first meetings of creditors, he informed the creditors about the winding up proceeding and noted that the adjourned hearing was to be held on 17 April 2025 in the afternoon. He also deposed that on behalf of Axpo Servizi Produzione Italia S.p.A., Mr James Conomos (Axpo's solicitor) indicated that Axpo supported the continuation of the administration rather than the winding up of Infinite Green Energy, and would prefer an adjournment of the proceeding. Mr Palandri further deposed to his communication with Mr Conomos with respect to the possibility of Mr Conomos appearing at the adjourned hearing on 17 April 2025.
2. Mr Palandri deposed that Axpo's claim in the administration (which was admitted in full at the first meetings of creditors) was in the amount of 1.5 million Euros ($2,681,709.49). Mr Palandri further deposed that the following additional creditors (part of the committee of inspection) had also indicated their support for an adjournment of the proceeding:

(a) Mr Dominish on behalf of the receivers and managers, and Legal Mortgage Holdings Pty Ltd (whose admitted claim was $8,337,034.04); and

(b) Som Orn Meav (whose admitted claim was $600,000).

1. Mr Palandri deposed that no other creditor spoke against, or otherwise, in respect of the winding up proceeding.
2. Finally, Mr Palandri deposed in his fourth affidavit to the administrators' maintained view that continuing the administration of Infinite Green Energy and the IGE Group such as to allow the second meetings of creditors to be held, would be in the interests of the creditors.
3. At the hearing of the application to adjourn, the administrators also relied upon a written outline of submissions filed on 14 April 2025.

Summary of relevant legal principles Winding up

1. The principles which concern winding up applications are well known. The procedural requirements were set out by the Court of Appeal in Low v Joondalup Golf Management (Aust) Pty Ltd [2023] WASCA 33 at [43] to [54], and the principles applicable to an application to wind up a company in insolvency under s 459A of the Corporations Act were summarised by the Court of Appeal in that same decision at [55] to [72].
2. In summary, I note that the statutory framework concerning the making of a winding up order by the court in insolvency is contained in pt 5.4 of the Corporations Act. The court is empowered, upon application made to it, to order that an insolvent company be wound up in insolvency pursuant to s 459A of the Corporations Act. Even if insolvency is established, the court retains the discretion not to order a winding up.[12] In that respect, the court has discretion which may be exercised on any ground not extraneous to the scope and purpose of the Corporations Act.[13]
3. A creditor may apply to the court for an order that a company be wound up in insolvency under s 459P(1)(b) of the Corporations Act. The question of standing to pursue a winding up order is to be determined as at the date that the application for winding up is filed.[14]
4. A person may serve on a company a statutory demand under s 459E of the Corporations Act where it satisfies the conditions therein contained. Where an application for winding up has been made, and a company has failed to comply with a statutory demand served on the company pursuant to s 459E of the Corporations Act in the period that is three months prior to the making of the application, the court must presume that the company is insolvent pursuant to s 459C(2)(a) of the Corporations Act.
5. A presumption of insolvency arising from the failure to comply with a statutory demand may be rebutted by the company the subject of the application pursuant to s 459C(3) of the Corporations Act. However, in order to discharge that onus, the court should ordinarily be presented with the 'fullest and best' evidence of the financial position of the company.[15]
6. I also note that s 467A of the Corporations Act provides that an application under pt 5.4 or pt 5.4A must not be dismissed merely because of one or more of the following:

(a) in any case - a defect or irregularity in connection with the application;

(b) in the case of an application for a company to be wound up in insolvency - a defect in a statutory demand,

unless the court is satisfied that substantial injustice has been caused that cannot otherwise be remedied (for example, by an adjournment or an order for costs).

1. Section 440A(2) of the Corporations Act provides as follows:

The Court is to adjourn the hearing of an application for an order to wind up a company if the company is under administration and the Court is satisfied that it is in the interests of the company's creditors for the company to continue under administration rather than be wound up.

1. As noted above, the court also has a general power inherent in its own jurisdiction to control its own processes to adjourn such a hearing, even if not satisfied for the purposes of s 440A(2) of the Corporations Act,[16] and a source of power under s 467(1)(b) of the Corporations Act.[17]
2. There is no presumption arising from the presence of pt 5.3A in the Corporations Act in favour of allowing the administration to continue so as to allow creditors to vote in the administration.[18] As was acknowledged by Logan J in Deputy Commissioner of Taxation v Bedroff Pty Ltd at [30], what is offered by pt 5.3A of the Corporations Act is an alternative to liquidation, but an alternative which is regulated by the provisions of that Part.
3. Consistent with the approach adopted by Logan J,[19] I too accepted that the object of pt 5.3A as expressed in s 435A must be borne in mind, but was also cognisant that the question for immediate resolution remained that posed by another of the Part's provisions, s 440A(2) (and further, in this case, whether the exercise of the alternative sources of power to adjourn the hearing of an application to wind up the defendant company ought be exercised).

1. The principles relevant to an application under s 440A(2) of the Corporations Act are not controversial. There is a positive duty on the court to adjourn the hearing of the application to wind up a company if the company is under administration and the court is satisfied it is in the interests of the company's creditors for the company to continue under administration rather than be wound up.[20] What is required by s 440A(2) '[i]s satisfaction that it is in the interests of the company's creditors for the company to continue under administration, rather than be wound up, as distinct from satisfaction that it may be so.'[21]
2. The critical inquiry is into the interests of the company's creditors in the two competing scenarios, being continuation under administration on the one hand, or winding up on the other.[22] However, as was noted by counsel for DD Investment, Black J in Weriton Finance Pty Ltd v P.N.R. Pty Ltd (in Administration) [2012] NSWSC 1402; (2012) 92 ACSR 88 at [16] observed that 'this requires that there be a sufficient possibility, as distinct from mere optimistic speculation, that creditors' interests will be accommodated to a greater degree in an administration than in a winding up.'[23]
3. As to the application of s 440A(2), I proceeded on the basis that it is the party seeking the adjournment (in this case, the administrators) that has the burden of satisfying the court of the adjournment.[24] The onus is on the administrators to show, by persuasive evidence, that it is in the interests of the company's creditors that the administration continue rather than liquidation ensue.[25]
4. As was noted by Rees J in Re Victor Sports Pty Ltd at [20], the question of whether an administration should continue is closely related to whether the creditors can hope to get more by way of payment of their debts by administration than from liquidation. Where there is a realistic possibility that a deed of company arrangement may be proposed, it will generally be in the interests of creditors for the administration to continue in order to ascertain whether it will be 'beneficial for creditors overall', especially where the adjournment is sought for a short period early in the administration.[26]
5. Further, the applicant for the winding up of the company might complain about the timing of the appointment of an administrator, for example, if the appointment occurs immediately before the scheduled hearing of an application to wind up the company. However, lateness does not provide a basis for a residual discretion to refuse an adjournment, as there is no such discretion under s 440A(2) of the Corporations Act.[27] Rather, I proceeded on the basis that the timing and background to the appointment of an administrator may be a relevant contextual matter that affects the court's assessment of the evidence which is relied upon as establishing the state of satisfaction required of the court under s 440A(2) for an adjournment granted under that provision.[28]
6. Finally, I noted that s 440A(2) of the Corporations Act says nothing about whether the court should or should not adjourn the hearing of the application if the two criteria set out in s 440A(2) do not apply.

1. As to the court's inherent power, counsel for the administrators observed that the Explanatory Memorandum to the Corporate Law Reform Act 1992 (Cth) (which is the statute that introduced the voluntary administration regime under pt 5.3A of the Corporations Act) noted explicitly the additional inherent jurisdiction that the court would retain to adjourn a winding up application even where the requirements of s 440A were not satisfied.[29] I reproduce here the passages of the Explanatory Memorandum (adopting the administrators' emphasis):

Proposed section 440A - Winding up company

1. Proposed subsection (1) will provide that a company under administration cannot be wound up voluntarily (by members or creditors) except as provided by proposed section 446A. ... Thus, only the Court may wind up a company that is under administration and it is expected that the Court would order a winding-up only in the rarest of circumstances.
2. Proposed subsection (2) will provide that the Court is not to order a winding-up if it is satisfied that it is in the interests of the company's creditors for the company to continue under administration. Where this is not the case, the Court will retain a discretion to order a winding-up. In exercising that discretion, it is expected that a Court will bear in mind that the preservation of the company or its business is a key objective of the new Part 5.3A. Generally, it would not be appropriate to wind up a company under administration unless the applicant was able to show that the position of the company was deteriorating so rapidly that, during the 28 or 35-day period prior to the meeting of creditors, or while that meeting is adjourned for up to 60 days, the applicant or other persons would be so significantly prejudiced that an immediate winding-up should be ordered.
3. While counsel for the administrators acknowledged that the observations in the explanatory memorandum do not bind this court, counsel submitted that it is useful to note the manner in which parliament contemplated the court's discretion should be exercised.[30]
4. Counsel for the administrators also noted that in Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd at [13], Palmer J approved the observations made by Hamilton J in TCS Management Pty Ltd v CTTI Solutions Pty Ltd at [18], which were to the effect that where there are potential advantages of both liquidation and the continuation of the administration, creditors are often best placed to determine the position. Further, at [14] it was noted that that conclusion applied as much to the exercise of the inherent discretion to adjourn as it did to the requirement under s 440A of the Corporations Act.
5. Counsel for the administrators sought to also emphasise that there may be circumstances, particularly where a matter is finely balanced, when the court is able to grant an adjournment in the exercise of its inherent jurisdiction even though it had not been established that it was in the interests of the creditors that the administration continue - indeed, the case for an adjournment may be precisely because sufficient information was not yet to hand to permit that assessment to be made.[31]

1. As to the alternative source of power under s 467(1)(b) of the Corporations Act, the difference between the two sources of power found in the Corporations Act is that s 440A(2) requires the court to adjourn the proceedings if the court has the requisite satisfaction under that provision, whereas s 467(1)(b) is not mandatory and confers a broad discretion on the court.[32]

1. As noted above, the administrators applied for an order restricting access to the confidential affidavit of Mr Palandri pursuant to O 67B r 5(1)(b) of the Rules of the Supreme Court on the basis that the affidavit contained information which was confidential and commercially sensitive relating to Infinite Green Energy and the estimated value of its assets, disclosure of which could undermine the sales process that interested parties proposed to conduct in respect of Infinite Green Energy and its assets; and the affidavit included the identities of the parties that had expressed an interest in acquiring some or all of Infinite Green Energy or its assets, which parties had not consented to being identified. On 15 April 2025, counsel for the administrators moved for an order restricting access to that affidavit.
2. After hearing counsel, I was satisfied that Mr Palandri's second affidavit contained confidential information, and that it was appropriate to restrict access to it. I made an order pursuant to O 67B r 5(3) of the Rules of the Supreme Court restricting access to the affidavit until further order, which affidavit was only to be accessed by the court, the interested party, and subject to the provision of an undertaking in an agreed form, counsel for, and the solicitors for, DD Investment.
3. At the hearing on 17 April 2025, counsel for DD Investment applied for an order restricting access to the confidential submissions filed shortly before the hearing, which submissions referenced Mr Palandri's confidential affidavit. Again, I was satisfied that the submissions contained confidential information, and that it was appropriate to restrict access to it.

1. I am satisfied that on the papers filed, DD Investment has a strong case for the winding up of Infinite Green Energy.
2. In this regard, I note that on 25 January 2025 a statutory demand was served on the director of Infinite Green Energy, Mr Gauld, in accordance with s 109X(1)(b) of the Corporations Act. The statutory demand was for the sum of $3,889,687.76 being the sum owing pursuant to judgement against Infinite Green Energy given by the Supreme Court of Western Australia on 26 November 2024, and interest calculated at the rate of 6% per annum from judgement to 23 January 2025 (Judgement Debt).
3. Infinite Green Energy failed within 21 days of being served the statutory demand to pay the amount specified in the statutory demand or such portion as to the satisfaction of DD Investment, or to apply to set aside the statutory demand.
4. On 25 February 2025 an application was made for the winding up of Infinite Green Energy in insolvency. The application was made within three months of Infinite Green Energy's failure to comply with the statutory demand. Accordingly, unless Infinite Green Energy were to establish that it is solvent, I must presume that it is insolvent under s 459C(2) of the Corporations Act.
5. Evidence must be adduced on behalf of a defendant company for it to rebut the presumption of insolvency, and in the absence of such evidence, the presumption of insolvency will not have been rebutted.
6. That said, it is well accepted that the court retains the discretion to decline to make a winding up order, even in such circumstances as the requirements of the Corporations Act are met.

1. As Infinite Green Energy is in administration, s 440A(2) of the Corporations Act has application.
2. In support of the application to adjourn, counsel for the administrators noted that the administrators had done a significant amount of work since their appointment. I accepted that the submission was supported by the evidence of Mr Palandri, particularly the matters deposed to by Mr Palandri in his first affidavit,[33] and in his third affidavit. Counsel for the administrators also noted, and I had regard to, Mr Palandri's evidence that the administrators and receivers had been working cooperatively to manage the operations of the IGE Group; subject to documentation, additional funding for the administration had been secured; and that in his opinion, there was a real prospect that a restructure, presumably by way of deed of company arrangement, would result in a better return to creditors than a liquidation.[34]
3. However, when regard was had to all of the evidence filed, I did not consider the administrators to have discharged their onus so as to be entitled to an adjournment under s 440A(2) of the Corporations Act. While there was no doubt that the administrators had acted with appropriate diligence and haste, and had undertaken appropriate investigations within the time available, on the evidence available it was not possible to be satisfied that it is in the interests of Infinite Green Energy's creditors for it to continue under administration, rather than be wound up, as distinct from satisfaction that it may be so. On the evidence, I was only satisfied that it may be so.
4. In so finding, I had carefully considered Mr Palandri's evidence. I noted that Mr Palandri had deposed that he considered that there was a material prospect that one or more parties would submit a proposal to recapitalise and restructure Infinite Green Energy, in the event that the voluntary administration of Infinite Green Energy was allowed to complete. Further, I also gave careful consideration to the matters which grounded Mr Palandri's professional opinion that a transaction of this nature was likely to be more attractive to an incoming purchaser than the purchase of a specific asset in a liquidation scenario (that opinion and the reasons which grounded the same reproduced at [47] above).[35]
5. Again, without suggesting any criticism of the conduct and diligence of the administrators, I did not consider there to be sufficient evidence to find that it is in the interests of Infinite Green Energy's creditors for it to continue under administration, rather than be wound up, by reason of there being clear comparative benefits if the administrators' recommendation turned out to be well‑founded when they have the opportunity to investigate and act further.[36] The matters which grounded Mr Palandri's opinion, including those reproduced at [47] above,[37] were matters which may arise. For example, Mr Palandri noted that Infinite Green Energy liquidation may trigger certain rights of termination under key contracts even where those contracts are in the name of the Infinite Green Energy's subsidiaries. It may also be the case that such rights were triggered upon the appointment of the administrators, receivers and managers, or controllers. Further, at this stage of the administration, it was not possible on the evidence to conclude that indeed there would be substantive comparative benefits if the administrators' recommendation turned out to be well‑founded.
6. Mr Palandri is a very experienced corporate insolvency and restructuring practitioner and his opinion carried considerable weight. However, at this stage of the administration, there remained a lacuna (for which the administrators could not be criticised) so that the critical inquiry into the interests of the company's creditors in the two competing scenarios could not adequately be evaluated.
7. Further, I did not accept for the purposes of s 440A(2) that in all of the circumstances it is in the interests of Infinite Green Energy's creditors for it to continue under administration, rather than be wound up, simply because the continuation of the administration preserved the prospect of a restructure which may result (or indeed, has a real prospect of resulting) in a better return to creditors than a liquidation.
8. I found that s 440A(2) of the Corporations Act was not enlivened. That was not however the end of the matter. Counsel for the administrators also moved for adjournment in the exercise of the court's discretion, and I accepted that s 440A(2) of the Corporations Act says nothing about whether the court should or should not adjourn the hearing of the application if the two criteria set out in subsection (2) do not apply.
9. In all of the circumstances, I was persuaded that it was appropriate to exercise discretion so as to grant an adjournment of the application to wind up Infinite Green Energy. I note first the matters that I considered weighed against any adjournment.
10. First, the administration is in a very early phase and there can be no certainty that it is in the interests of Infinite Green Energy's creditors for it to continue under administration, rather than be wound up. As was emphasised by counsel for DD Investment, there was no detailed restructure proposal put before the court.
11. Secondly, Infinite Green Energy is presumed to be insolvent by operation of the unanswered statutory demand and the authorities show that as a general rule, a creditor who cannot obtain payment is, as between the creditor and the company that owes the debt, entitled to a winding up order as a matter of right.[38] DD Investment on the papers filed appeared to have a strong case for the winding up of Infinite Green Energy.
12. Thirdly, save for the matters which informed the application to adjourn, there appeared to be no other reason why discretion would not be exercised to wind up Infinite Green Energy if the application to wind up proceeded to substantive hearing.
13. Fourthly, there was evidence that Infinite Green Energy sought to raise money before the appointment of the administrators, including from existing shareholders, in circumstances where money owed to DD Investment, despite demand, had not been paid. There was a reason to be concerned that Infinite Green Energy was trading while insolvent, which conduct may be further investigated by a liquidator.
14. There was reason to be concerned about the conduct of the directors. Also troubling was Mr Palandri's evidence that there were some reasons to doubt the veracity or currency of some of the information in the management accounts, and that it appeared that a number of capital raisings (which in practice may be characterised as the issue of equity) may have been recorded in the accounts of Infinite Green Energy as debt rather than equity.
15. Fifthly, as was recorded in DD Investment WA Pty Ltd v Infinite Green Energy Limited at [64], the evidence concerning the authenticity of the Deutsche Bank Swift Transfer notifications described in and attached to the affidavits made by Mr Cao was particularly troubling. As was recorded at [64] of my earlier reasons, counsel for DD Investment made plain that it was not suggested that the impugned transfer notifications were created by Mr Gauld or Infinite Green Energy, and in that regard, counsel noted the absence of information available to DD Investment to do anything other than bring that concerning information to the attention of the court. The origin of the Deutsche Bank might properly be a matter investigated by a liquidator.
16. Sixthly, as was acknowledged by Mr Palandri, if the administration was to continue and Infinite Green Energy was to ultimately enter liquidation by the resolution of creditors at the second meeting of its creditors, costs and expenses will be incurred by the administrators during the voluntary administration period, which would stand in priority to DD Investment's Judgement Debt and are likely to be substantial (having noted the matters deposed to Mr Palandri, including that summarised at [54], [63] and [64] above and the foreshadowed application under s 447A of the Corporations Act). I also acknowledged that at a subsidiary level, ongoing trading cost would continue to be incurred, with the potential to impact adversely DD Investment as a creditor of Infinite Green Energy (as Infinite Green Energy is owed money by the trading subsidiary entities by way of intercompany loans).
17. However, when weighing all of the evidence, I considered the submissions made on behalf of the administrators for an adjournment in order to allow the administration of Infinite Green Energy to progress in the interests of creditors, to be persuasive. In so concluding, I had regard to and weighed in the balance the following.
18. First, as noted above, even if insolvency were to be established at a substantive hearing of an application to wind up Infinite Green Energy, the court would retain the discretion not to order a winding up. In that respect, s 459A and s 467(1)(c) of the Corporations Act make plain that the court retains a discretion to stay proceedings on an application to wind up a company in insolvency.[39] That discretion may be exercised on any ground not extraneous to the scope and purpose of the Corporations Act.[40] The court also has a discretion to adjourn a winding up application under s 467(1) in an appropriate case.[41]
19. Secondly, I considered counsel for the administrators' characterisation of the administration to be apt. This was not a case where the administration was part of some pre‑planned restructure that had a certain outcome and could be measured against a clear liquidation outcome. Indeed, the appointment of the administrators (and the receivers and managers and controllers) came after a long process initiated by DD Investment to recover moneys owed to it, and the administrators were appointed immediately prior to the scheduled hearing of the winding up application on 8 April 2025 in the circumstances summarised in DD Investment WA Pty Ltd v Infinite Green Energy Limited at [63].
20. The administrators maintained that the circumstances of this case required that they investigate the affairs of Infinite Green Energy and report to creditors in order to allow them (as a whole) to determine the future of the company and its business.[42] I considered there to be weight in that contention.
21. Thirdly, I had regard to the evidence of Mr Palandri as to the prospects of a restructure which might benefit creditors. I particularly noted Mr Palandri's evidence at par 16 of his third affidavit that he continued to hold the view that the best prospect of a successful restructure of the IGE Group would likely involve a whole of group transaction. Mr Palandri's opinion was properly qualified given that the administration was in a very early phase. However, I noted that Infinite Green Energy continued to trade; runs a revenue‑generating business selling electricity, typically on a wholesale basis to the Australian Energy Market Operator; holds via its various subsidiaries interests in wind and solar power assets which are at different stages of construction in Western Australia; has material assets, the value of which was deposed to in Mr Palandri's confidential affidavit; and material tax losses, the value of which was deposed to in Mr Palandri's confidential affidavit.
22. As to the prospects of a restructure which might benefit creditors, I also noted Mr Palandri's evidence that despite not having yet commenced any formal sales or restructure process, there had been material interest (including from eight different interested parties and DD Investment); that the receivers and managers had also been approached by interested parties and they were happy for the administrators to engage with those parties about potential deed of company arrangement restructures;[43] and Mr Palandri's evidence which grounded his belief as to the receipt of funding for the administration by investment from a group of shareholders, who, in the short time available, appeared to have committed $750,000 for that purpose (and as was submitted on behalf of the administrators, funding which illustrated the shareholders' view that there is a valuable prospect of a restructure, and which presumably would not be available to a liquidator where shareholders' holding would ultimately fall away).
23. As to the prospects of a restructure which might benefit creditors, I further noted Mr Palandri's professional view that there was a 'material prospect' of a recapitalisation or restructure proposal, and that a proposal was more likely to be made through an administration than a liquidation, because of the matters deposed to at par 46 of his first affidavit.
24. As was emphasised by counsel for the administrators, ultimately, in Mr Palandri's professional view, the circumstances deposed to led to a 'significant prospect' that the creditors of Infinite Green Energy (and the creditors of the other entities in the IGE Group) would receive a higher return if the voluntary administration of Infinite Green Energy was allowed to complete.
25. Fourthly, I noted that in his confidential affidavit Mr Palandri had included an estimate of the value of key assets. As was noted by counsel for DD Investment, the estimates allowed for a total value range to be discerned. What was also clear from that confidential affidavit, the key assets described by Mr Palandri are not all held by Infinite Green Energy. Significant assets sit in the subsidiaries, and it appears that Infinite Green Energy has intercompany loans in its favour. Further, the extent to which the same subsidiaries owe money (separate to the intercompany loans), secure or otherwise is not clear.
26. A significant asset is held by Infinite Blue Energy Group Pty Ltd. I note that the Arrowsmith property is one such asset and Legal Mortgage Holdings was appointed a controller with respect to the same.
27. A significant asset is also held by MEG HPI Pty Ltd, that is, the Solar Farm. Legal Mortgage Holdings has appointed receivers and managers to that entity.
28. The administrators were also appointed over Infinite Blue Energy Group Pty Ltd and MEG HPI Pty Ltd.
29. The appointment of a liquidator to Infinite Green Energy would not necessarily disturb the appointment of the administrators to the subsidiaries of Infinite Green Energy, nor disturb the other appointments. Nor would it necessarily mean that the trading subsidiaries will cease to trade.
30. I did not accept that the evidence before the court supported the submissions made on behalf of DD Investment, that if Infinite Green Energy was now wound up, creditors of Infinite Green Energy would receive 100 cents in the dollar. Further, while I accepted that the Solar Farm (or any of the significant assets) might be sold on a stand alone basis, given the group structure those proceeds of sale would not directly flow to the benefit of DD Investment, or directly to the creditors of Infinite Green Energy.
31. There is complexity in the structure of the IGE Group, and the appointment of a liquidator to Infinite Green Energy would not result in access to the assets of the subsidiaries, or the automatic flow through to Infinite Green Energy of all proceeds of sale. The flow through would depend upon the status of the intercompany loans, and the position of the other secured and unsecured creditors at the subsidiary level. I considered the complexity to be a matter which supported a further adjournment of the application to wind up Infinite Green Energy.
32. Fifthly, I noted that the application to adjourn was made early in the administration. I took comfort that the proposed timeline for administration revealed a speedy process, and that there was no present intention to seek an extension of the convening period under s 439A of the Corporations Act for the determination of Infinite Green Energy's future, such that any adjournment of this application until after distribution of a report to creditors would be relatively short.
33. In this regard, I also noted that Mr Palandri had confirmed that if the administrators were to form the view that liquidation of Infinite Green Energy would provide for a greater return to its creditors, the same would be recorded in the report to creditors as required under s 75‑225(3)(b)(iii) of the Insolvency Practice Rules (Corporations), and a recommendation would be made accordingly. Mr Palandri had noted that the consequent delay for DD Investment in achieving liquidation of Infinite Green Energy would therefore likely be relatively minimal.
34. Sixthly, despite the frustrations experienced by DD Investment in its dealings with Infinite Green Energy while in the control of the directors, I accepted that any concern that Infinite Green Energy's assets may be devalued or disposed of by the directors continuing to trade Infinite Green Energy's business while insolvent had been allayed by the appointment in this case of the independent administrators. Despite the likely costs of the administration of the IGE Group, this was not a case where at this time I considered that DD Investment would be so significantly prejudiced that an immediate winding up of Infinite Green Energy should be ordered. In this regard, I was cognisant that the receivers and managers and the controllers would remain appointed regardless of the outcome of this application.
35. Seventhly, I accepted that the appointment of the administrators was made immediately prior to the scheduled hearing of the winding up application on 8 April 2025. While the conduct of the directors of Infinite Green Energy had caused considerable frustration to DD Investment, I did not consider the circumstances of the administrators' appointment to adversely affect the court's assessment of Mr Palandri's evidence.
36. Eighthly, in his fourth affidavit Mr Palandri deposed to there having been support for an adjournment articulated on behalf of a number of creditors of Infinite Green Energy at the first meetings of creditors held that morning. The creditors supporting the same were:

(a) Axpo Servizi Produzione Italia S.p.A. (a creditor admitted for voting purposes in the amount of $2,681,709.49);

(b) Mr Dominish on behalf of the receivers and managers and their appointer (whose admitted claim was $8,337,034.04); and

(c) Som Orn Meav (whose admitted claim was $600,000).

1. The representative of Axpo was granted leave to appear and was heard in support of an adjournment today. I pause here to record that while I had regard to the views expressed, the views expressed by these creditors were not determinative in the disposition of the application to adjourn, nor were the views given significant weight.
2. In the end, I accepted that an adjournment allowing the administration to further take its course would be within power and in the interests of creditors, in circumstances where there was good reason to believe that the continued administration may lead to a better outcome for creditors. In this regard, I considered it appropriate to exercise discretion to adjourn the application until after the report to creditors is issued but before the second meeting of creditors of Infinite Green Energy, which I considered to be an adjournment on grounds not extraneous to the scope and purpose of the Corporations Act, but rather, consistent with that scope and purpose. An adjournment to such a date would permit a better informed analysis of the critical inquiry.[44] An adjournment to 26 May 2025 (as was proposed by the administrators) would not.
3. The continued co-operation and co-ordination with the receivers and managers and controllers appointed by Legal Mortgage Holdings, and the securing of funding for the purposes of the administration, were however matters key to the prospect of a better outcome for creditors through continued administration. Should that co‑operation be withdrawn, sufficient funding not be secured, or there be a delay in the conduct of the administration, DD Investment may seek to have its application to wind up Infinite Green Energy relisted on a date prior to 19 May 2025. There will also be liberty to apply, and I note that the administrators may separately avail themselves of directions as may be required in the course of the administration.

1. For these reasons, I was satisfied that I ought adjourn the application to wind up Infinite Green Energy. After hearing counsel, the application was adjourned to 19 May 2025 at 2.30 pm.
2. As to costs, I note that on 8 and 15 April 2025, I reserved the costs associated with those attendances before the court. As to the appropriate costs order, counsel for the administrators in the written submissions filed in advance of the hearing had submitted that whether or not the court was to order the winding up of Infinite Green Energy, DD Investment should ultimately have its costs on the following basis:[45]

(a) under s 556(1)(b) of the Corporations Act, the costs (including DD Investment's taxed costs) are payable with a significant priority (even above employees) in the event the court were to order the winding up;

(b) in the event Infinite Green Energy is not wound up by the court but ultimately ends up in liquidation, the costs in respect of this proceeding are payable in any event, again with significant priority (even above employees), under s 556(1)(ba) of the Corporations Act; and

(c) in the event Infinite Green Energy is restructured under a deed of company arrangement, that deed will need to provide for adequate replication of Infinite Green Energy's priority lest it be liable to be set aside under s 445D of the Corporations Act.

1. It was submitted on behalf of the administrators that no order for costs against Infinite Green Energy was required to give rise to the statutory entitlement - it applies in any event.[46]
2. In circumstances where the application to wind up Infinite Green Energy had been further adjourned to 19 May 2025 at 2.30 pm, I considered it appropriate to reserve the costs of the hearing on 17 April 2025 to that date (and did not hear counsel for DD Investment in response to the administrators' submission reproduced above).
3. A copy of the orders made on 17 April 2025 are reproduced in these reasons at sch A and sch B.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Originating process filed 25 February 2025, pt A.

[2] It appears that in the originating process filed 25 February 2025 at par 2, Stephen James Gauld is incorrectly referred to as Steven James Gauld.

[3] Referring to the email communication received by the court on 8 April 2025 at 8.23 am from Mr Pearce of Blackwall Legal.

[4] Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd [2008] NSWSC 548 [13], citing TCS Management Pty Ltd v CTTI Solutions Pty Ltd [2001] NSWSC 830 [18]. See also discussion in Crafted Furniture Pty Ltd v Rugged Luxe Pty Ltd (Administrators Appointed) (No 2) [2021] FCA 1365 [6]; and T‑S Capital Partners LLC v Paltar Petroleum Ltd (administrators appointed), in the matter of Paltar Petroleum Ltd (No 1) [2019] FCA 635 [49] ‑ [55].

[5] Affidavit of JJ Davidson sworn 11 April 2025 par 10, JJD29.

[6] First affidavit of JT Palandri sworn 14 April 2025 par 34(a) and (b).

[7] DD Investment WA Pty Ltd v Infinite Green Energy Limited [9], sch C.

[8] Affidavit of JJ Davidson sworn 11 April 2025 par 10, JJD29.

[9] First affidavit of JT Palandri sworn 14 April 2025, JTP10.

[10] Understood to be the week commencing 14 April 2025.

[11] Third affidavit of JT Palandri sworn 16 April 2025 par 15, JTP14 and JTP 15.

[12] Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers and Managers Appointed) [2011] HCA 18; (2011) 244 CLR 1 [32].

[13] Deputy Commissioner of Taxation v Swoosh Hand Car Wash Pty Ltd [2014] FCA 73 [10].

[14] Deputy Commissioner of Taxation v Complete Liquid Transport Pty Ltd [2010] FCA 1067; (2010) 80 ATR 523 [29].

[15] Commonwealth Bank of Australia v Begonia (1993) 11 ACLC 1075, 1081.

[17] Federal Commissioner of Taxation v Fyna Constructions (Hire Sales) Pty Ltd [2019] FCA 578 [21], citing Perram J in Deputy Commissioner of Taxation v Polcarp Pty Ltd [2011] FCA 1142 [4].

[18] Deputy Commissioner of Taxation v Bedroff Pty Ltd [2009] FCA 1399 [30].

[19] Deputy Commissioner of Taxation v Bedroff Pty Ltd [30].

[20] Deputy Commissioner of Taxation v Bradley Keeling Management Pty Ltd [2003] NSWSC 47; (2003) 44 ACSR 377 [14].

[21] In the matter of Offshore and Ocean Engineering Pty Ltd [2012] NSWSC 1296 [6] (emphasis added).

[22] Crafted Furniture Pty Ltd v Rugged Luxe Pty Ltd (No 2) [3].

[23] Plaintiff's outline of submissions filed 8 April 2025 par 2. See also Pact Construction Pty Ltd v HBO EMTB WA Projects Pty Ltd [2014] WASC 423 [6], applying Creevey v The Deputy Commissioner of Taxation (1996) 19 ACSR 456, 457; and Australian Securities & Investments Commission v Storm Financial Ltd (Receivers & Managers Appointed) (Administrator Appointed) [2009] FCA 269; (2009) 71 ACSR 81 [25].

[24] Federal Commissioner of Taxation v Fyna Constructions (Hire Sales) Pty Ltd [25].

[25] In the matter of Victor Sports Pty Ltd [2021] NSWSC 1148 [19]; Pact Construction Pty Ltd v HBO EMTB WA Projects Pty Ltd [5], [21].

[26] See also In the matter of Cresco Opus Fund No 4 Pty Ltd (Administrators Appointed) [2019] NSWSC 941 [23], citing In the matter of Bobos Engineering Australian Pty Ltd [2015] NSWSC 2027 [9]; In the matter of Denham Constructions Pty Ltd [2016] NSWSC 1426 [10]; and In the matter of Dan Phillips Holdings Pty Ltd [2017] NSWSC 954 [5].

[27] Federal Commissioner of Taxation v Fyna Constructions (Hire Sales) Pty Ltd [22].

[28] Federal Commissioner of Taxation v Fyna Constructions (Hire Sales) Pty Ltd [22].

[29] Administrators' outline of submissions filed 14 April 2025 par 11.

[30] Administrators' outline of submissions filed 14 April 2025 par 12.

[31] Administrators' outline of submissions filed 14 April 2025 par 14, citing School Holdings Pty Ltd v Dayroll Pty Ltd (Administrators Apptd) [2008] NSWSC 670 [6].

[32] Deputy Commissioner of Taxation v Polcarp Pty Ltd [4]. See also Deputy Commissioner of Taxation v Swoosh Hand Car Wash Pty Ltd [10] ‑ [11].

[33] Administrators' outline of submissions filed 14 April 2025 par 15; first affidavit of JT Palandri sworn 14 April 2025 par 15.

[34] First affidavit of JT Palandri sworn 14 April 2025 pars 40 - 46; administrators' outline of submission par 17.

[35] First affidavit of JT Palandri sworn 14 April 2025 par 46.

[36] In the matter of First Netcom Pty Limited [2000] NSWSC 989 [10], reproduced in TCS Management Pty Ltd v CTTI Solutions Pty Ltd [16].

[37] First affidavit of JT Palandri sworn 14 April 2025 par 46.

[38] Deputy Commissioner of Taxation v JGQ Developments Pty Ltd [2018] FCA 2046 [24], citing IOC Australia Pty Ltd v Mobil Oil Australia Ltd [1905] ArgusLawRp 98; (1975) 11 ALR 417, 427.

[39] Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers and Managers Appointed) [32].

[40] Deputy Commissioner of Taxation v Swoosh Hand Car Wash Pty Ltd [10].

[41] Deputy Commissioner of Taxation v Swoosh Hand Car Wash Pty Ltd [10].

[42] Administrators' outline of submissions filed 14 April 2025 par 18.

[43] Third affidavit of JT Palandri sworn 16 April 2025 par 17(b).

[45] Administrators' outline of submissions filed 14 April 2025 par 27.

[46] Administrators' outline of submissions filed 14 April 2025 par 28.