IN THE MATTER OF GOLD VALLEY HOLDINGS PTY LTD; EX PARTE RS TUCKER & JA BUMBAK IN THEIR CAPACITY AS JOINT AND SEVERAL DEED ADMINISTRATORS OF GOLD VALLEY HOLDINGS PTY LTD (IN LIQ) (SUBJECT TO DEED OF COMPANY ARRANGEMENT) [2025] WASC 509 (1 December 2025)

1. This application was made to finalise a settlement which bound the director and secured creditors of the Companies (among others) and proposed a restructure that would result in the creditors of the Companies receiving more than they would in a winding up; and the Companies' continuing in existence. As was noted on behalf of the plaintiffs, the application was prosecuted in circumstances where the majority of the creditors of each of the Companies had voted in favour of the restructure and the only outstanding steps were for the winding up of the Companies to be terminated, and for the appropriate notices to be filed with the Australian Securities and Investments Commission (ASIC).[2]
2. The ex parte application was listed for hearing on 11 November 2025. In support of the application, counsel for the plaintiffs read three affidavits, and relied upon an outline of submissions and a minute of proposed orders filed in advance of the hearing. Counsel moved for orders in the form proposed, save as to include an additional express obligation on the part of the plaintiffs to give notice of the orders once made to various stakeholders.
3. After hearing counsel for the plaintiffs, I was satisfied that the application ought be granted. The orders made are reproduced at sch A. Set out below are my reasons.

1. There was extensive affidavit evidence read in support of the application. Set out below is an overview of the evidence, which is not intended to be a complete recitation of the matters deposed to nor a summary of the contents of all of the attachments.

1. In support of the application Mr Tucker swore an affidavit on 27 October 2025, to which he attached documents marked 'RST1' to 'RST28'. Summarised below is the evidence of Mr Tucker.

1. Mr Tucker deposed that this application was the final step in a settlement that had been reached between the director of Gold Valley Holdings, Territory Resources and Warrego Operations and the Companies' secured creditors which would see the creditors of the Companies receive more than they would if the Companies were wound up, and would result in each Company continuing in existence, in circumstances where the majority of the creditors of each Company had voted in favour of the settlement and the return of the Companies to solvency through the execution of deeds of company arrangement.

Initial appointments - voluntary administrators of Gold Valley Holdings

1. Gold Valley Holdings was established as the ultimate holding company for a number of subsidiaries (including Territory Resources and Warrego Operations) which held assets relating to the mining industry including shares, mining tenements, properties, processing plant and equipment and mining rights.
2. Mr Tucker deposed that on 26 May 2021 he and Mr Bumbak were appointed as voluntary administrators of Gold Valley Holdings pursuant to a resolution passed by its directors under s 436A of the Corporations Act. Following that appointment, Mr Tucker deposed to having conducted investigations into the affairs of Gold Valley Holdings which included the following:

(a) on 28 May 2019, Gold Valley Holdings entered into a facility agreement with TransAsia Private Capital Limited (Secured Facility), whereby a $14 million USD facility was advanced to Gold Valley Holdings:

(i) to provide working capital and refurbishment costs for a gold processing plant owned by Warrego Operations; and

(ii) to repay a debt owed by Rizal Resources Corporation and TMC Tribal Mining Corporation (Filipino mining companies of which Gold Valley Holdings is the shareholder), to TransAsia Private Capital Limited;

(b) the security provided by Gold Valley Holdings, Territory Resources and Warrego Operations under the Secured Facility;

(c) the issue of at least four letters of demand to Gold Valley Holdings by TransAsia Private Capital Limited between January 2020 and October 2020 in respect of breaches under the Secured Facility;

(d) TransAsia Private Capital Limited taking control of the assets of Gold Valley Holdings on 2 February 2021 through the appointment of controllers;

(e) the dispute between TransAsia Private Capital Limited and Gold Valley Holdings, Territory Resources and Warrego Operations pertaining to TransAsia Private Capital Limited taking steps to enforce its security (which Mr Tucker defines as the 'Dispute'); and

(f) the Dispute having led to Gold Valley Holdings suffering financial difficulties and appointing voluntary administrators.

Appointment as liquidators of Gold Valley Holdings

1. As to the subsequent appointment of Messrs Tucker and Bumbak as liquidators of Gold Valley Holdings, Mr Tucker deposed that at the second meeting of creditors which was held on 1 July 2022, it was resolved that Gold Valley Holdings would be placed into liquidation and that he and Mr Bumbak would be appointed as liquidators.

Appointment as voluntary administrators of Territory Resources and Warrego Operations

1. On 6 December 2024, Messrs Tucker and Bumbak were appointed as administrators of Territory Resources and Warrego Operations by way of resolution passed pursuant to s 436B(1) of the Corporations Act by the liquidators of Territory Resources (Robert Brauer and Robert Kirman of McGrathNicol) and Warrego Operations (David Clout of David Clout & Associates), respectively.
2. Mr Tucker deposed that following that appointment, he conducted investigations into the affairs of Territory Resources and Warrego Operations which included the following:

(a) the demand made by TransAsia Private Capital Limited to Warrego Operations in its capacity as guarantor of the Secured Facility in October 2020;

(b) the appointment made on 29 October 2020 by TransAsia Private Capital Limited of Messrs Brauer and Kirman as agents for the mortgagee in possession over certain assets owned by Warrego Operations (including the Warrego mill and the mining tenement);

(c) the demand made by TransAsia Private Capital Limited to Territory Resources in its capacity as guarantor of the Secured Facility on 18 November 2020;

(d) the enforcement by TransAsia Private Capital Limited on 19 November 2020 of its security over the shares in Territory Resources;

(e) the convening of the general meeting of Territory Resources' shareholders on 19 November 2020 where it was resolved that Territory Resources was insolvent and that Messrs Brauer and Kirman be appointed as Territory Resources' liquidators;

(f) the commencement of a sales campaign in November 2020 by Messrs Brauer and Kirman as agents for the mortgagee in possession with respect to certain assets owned by Warrego Operations, and the subsequent entry into a sale agreement for the sale of Warrego Operations' assets (including the Warrego mill) to Tennant Consolidated Mining Group on 24 December 2020;

(g) the report to creditors issued by the liquidators of Territory Resources on 19 February 2021;

(h) the appointment by TransAsia Private Capital Limited on 20 May 2021 of David Clout of David Clout as voluntary administrator of Warrego Operations pursuant to s 436C of the Corporations Act;

(i) upon settlement of the sale agreement, the retirement on 18 June 2021 of Messrs Brauer and Kirman as agents for the mortgagee in possession over certain assets owned by Warrego Operations;

(j) the convening of the second meeting of Warrego Operations' creditors on 23 June 2021, at which meeting the creditors resolved to place Warrego Operations into liquidation and appoint Mr Clout as liquidator; and

(k) the issue of a report to creditors by Mr Clout as liquidator of Warrego Operations on 12 October 2021.

1. Mr Tucker deposed that in or about May 2024, TransAsia Private Capital Limited, Yuzheng Xie (the former director of the Companies), Xie Corporation Pty Ltd (the shareholder of the Companies), and other parties related to TransAsia Private Capital Limited or Mr Xie (which included Tennant Consolidated Mining Group), entered into a settlement deed that provided for, among other things, the release of all parties with respect to the Dispute; that TransAsia Private Capital Limited would release its security over the Companies; a process whereby the Companies would be returned to administration so that deeds of company arrangement could be proposed that would provide a better return for creditors (than in a winding-up) and maximise the likelihood of the Companies continuing in existence; and that TransAsia Private Capital Limited would not participate in the distribution under the deeds of company arrangement (thereby releasing its claim and providing a better return to unsecured creditors).
2. As was noted in the submissions filed in support of the application, the settlement deed also provided for Gecko Mining Company Pty Ltd ACN 169 920 745 (which I understood to be a subsidiary of Gold Valley Holdings) to grant TransAsia Private Capital Limited a first right of refusal to purchase its 45% interest in certain mining tenements.[3]

1. Mr Tucker deposed that on 6 December 2024, he and Mr Bumbak were appointed as joint and several voluntary administrators of Gold Valley Holdings (having been appointed pursuant to s 436B(1) of the Corporations Act, with approval of creditors pursuant to s 436B(2)(f)), and Territory Resources and Warrego Operations (by the appointment made by their respective liquidators pursuant to s 436B(1) of the Corporations Act).

1. Mr Tucker deposed that through related entities Xie Corporation Pty Ltd and Gold Valley Investments Pty Ltd, Mr Xie (the Companies' director) proposed a deed of company arrangement in relation to each of the Companies on 22 January 2025 at the second meeting of the creditors of each of the Companies; and that the creditors of each of the Companies voted in favour of the proposals.
2. On 13 February 2025, each of the Companies, the plaintiffs, Mr Xie, and Xie Corporation Pty Ltd and Gold Valley Investment Pty Ltd (the proponents) executed deeds of company arrangement in respect of the Companies.
3. Mr Tucker deposed that on or about 7 March 2025 the proponents paid the 'Deed Contribution' to the deed administrators pursuant to the terms of the deeds of company arrangement (which was $276,000 under the Gold Valley Holdings deed of company arrangement, $80,000 under the Territory Resources deed of company arrangement, and $120,000 under the Warrego Operations deed of company arrangement);[4] and that on or about 30 June 2025 the creditors of the Companies were paid a dividend pursuant to the terms of the deeds of company arrangement, thereby releasing their claims against the Companies.
4. In or around August 2025, TransAsia Private Capital Limited released its security interest in respect of the Companies and caused any registrations in respect of the same to be removed from the Personal Property Securities Register.

1. Mr Tucker deposed that it was his opinion that after the deeds of company arrangement effectuate, the Companies would be solvent as they would be able to pay their debts as and when they fall due, which opinion was grounded on the following.
2. Before effectuation, the debt owed across the group was approximately $28 million and under the terms of the deeds of company arrangement, debt of approximately $22 million was to be compromised (which amount included approximately $21.5 million owed to TransAsia Private Capital Limited).
3. After the deeds of company arrangement effectuate, the remaining creditors in each Company would be Mr Xie, the 'Director's Related Parties' (as that term is defined in the deeds of company arrangement), and the 'Director's Related Entities' (as that term is defined in the deeds of company arrangement). Mr Tucker further deposed that on 2 October 2025 he and Mr Bumbak had received a letter from Mr Xie confirming that:[5]

(a) the Director's Related Parties and the Director's Related Entities would not be paid until after the deeds of company arrangement had terminated and would only be paid if the respective Company from which repayment was sought was solvent and would remain solvent after the payment; and

(b) Mr Xie would fund any costs incurred by the Companies post‑effectuation.

1. He also deposed that the balance of the claims against each of the Companies would be compromised and released pursuant to the terms of the deeds of company arrangement.

Interests of the creditors, liquidators and deed administrators

1. As to the creditors of the Companies, Mr Tucker deposed that it was his opinion that it was in the best interests of present creditors that the winding up of each of the Companies was stayed until the relevant deed of company arrangement was effectuated and following effectuation, was terminated.
2. Among other things, he recorded that the creditors of the Companies had voted in favour of the deeds of company arrangement; and that a comparison of the estimated return to creditors under liquidation and deed of company arrangement scenarios for each Company had been set out at Table 25 at s 9.1 of the second administrators' report, and in each case, the estimated return in the deed of company arrangement scenario was higher than the highest estimated return in a liquidation scenario. Further, the deeds of company arrangement provided for all debts to be extinguished save for the debts owed to the Related Parties for which a forbearance has been provided.
3. As to the liquidators and deed administrators, Mr Tucker deposed that it was his opinion that the interests of the liquidators of Territory Resources and Warrego Operations and the deed administrators for each of the Companies were best served by the grant of the relief sought.
4. In this regard he recorded, among other things, that if the winding up of the Companies was not terminated and the deeds of company arrangement were instead terminated, the liquidators of the Companies would be obliged to take steps to wind up the Companies with no obvious source of funding for their costs. He further deposed that on 3 and 10 September 2025 he received from the liquidators of Territory Resources and from the liquidator of Warrego Operations confirmation of their support of the orders sought by this application.

1. Mr Tucker deposed that Mr Xie was aware of and had consented to the orders sought by the application, and it was intended that the proponents would be served with the application.

1. Mr Tucker deposed that in the circumstances, it was expected that the Companies would be solvent and would maintain solvency after the deeds of company arrangement had effectuated, and that he was not aware of any reasons, other than those already deposed to, that the relief sought would be contrary to the public interest.

1. Among other things, Mr Tucker attached to his affidavit a copy of a historical and current company search for Gold Valley Holdings, Territory Resources and Warrego Operations; a copy of various ASIC Form 505s recording the various appointments; a copy of various reports to creditors; a copy of the settlement deed described at [14] and [15] above; a copy of the minutes of the second meetings of creditors on 22 January 2025; a copy of the deeds of company arrangement for each of the Companies; a copy of the Personal Property Securities Register search for each of the Companies; a copy of the letter from Mr Xie as director of the Companies dated 2 October 2025; and a copy of the confirmation received by Mr Tucker from the liquidators of Territory Resources and the liquidator of Warrego Resources that, among other things, there would be no sources of funding available to them should the winding up not be terminated.

1. Anthea Rae Scaddan, an employee of Blackwall Legal LLP, swore the first of two affidavits made by her in support of the application on 10 November 2025, and she attached to her first affidavit documents marked 'ARS1' to 'ARS9'.
2. Among other things, Ms Scaddan deposed to being instructed by Mr Shepherd of Blackwall Legal on 5 November 2025 to send email communications to ASIC, Messrs Brauer and Kirman as joint and several liquidators of Territory Resources, Hector West on behalf of Mr Xie, Xie Corporation Pty Ltd and Gold Valley Investments Pty Ltd, and Mr Clout as liquidator of Warrego Operations, giving notice of the application and the listing of the same.
3. Ms Scaddan further deposed to being informed by Mr Dougall of KordaMentha on 7 November 2025 that a circular had been sent to creditors of the Companies giving notice of this application.
4. Ms Scaddan attached to her affidavit a copy of her email communications and the responses received; and a copy of the circular to creditors dated 7 November 2025.

1. Ms Scaddan swore a second affidavit in support of the plaintiffs' application on 10 November 2025 and attached to her affidavit a document marked 'ARS10'.
2. Ms Scaddan deposed that she had received a response from Marjorie Collins of ASIC confirming receipt of the email communication to ASIC described at [33] of these reasons. Ms Scaddan attached a copy of the response to her second affidavit.

Disposition The power to stay or terminate a winding up

1. The appointment of an administrator to a company in liquidation does not automatically terminate the winding up. A company that is put into liquidation undergoes a change of status, which change cannot be undone by the company's own motion.[6] The winding up of a company will come to an end by completion of the winding up process and deregistration of the company; by an order of the court terminating the winding up; or (in limited circumstances) by an order setting aside or rescinding the winding up orders.
2. In the circumstances of this case, I was satisfied that the court had the power to grant the relief sought, that is, an order:

(a) staying the winding up of the Companies from the time Messrs Tucker and Bumbak were appointed as voluntary administrators until such time as each of the relevant deeds of company arrangement effectuate; and

(b) following effectuation of each of the relevant deeds of company arrangement, terminating the winding up of each Company.

1. The plaintiffs in their capacity as deed administrators brought the application pursuant to s 482(1) of the Corporations Act, which provides as follows:

Section 482 Power to stay or terminate winding up

482(1) At any time during the winding up of a company, the Court may, on application, make an order staying the winding up either indefinitely or for a limited time or terminating the winding up on a day specified in the order.

1. Section 482 of the Corporations Act is located in pt 5.4B (Winding up in insolvency or by the court), div 3 (General powers of the court), sub‑div A (General powers). Standing to bring such an application is prescribed by subsection (1A). Those with standing include in any case, the liquidator, or a creditor or contributory, of the company; and in the case of a company subject to a deed of company arrangement, the administrator of the deed.[7]
2. While the external administrations of the Companies did not come about by orders of the court under pt 5.4B, s 513 of the Corporations Act, which is located in pt 5.6 (Winding up generally), provides that the provisions of the Corporations Act about winding up apply in relation to winding up whether in insolvency, by the court or voluntarily, except so far as the contrary intention appears.
3. The power to stay or terminate a winding up in the context of a transition to a creditors' voluntary winding up is also provided for in pt 5.3A (Administration of a company's affairs with a view to executing a deed of company arrangement), div 12 (Transition to creditors' voluntary winding up). Section 446A of the Corporations Act applies in the circumstances prescribed at s 446A(1), which includes the circumstance where the creditors of a company under administration resolve at a particular time under s 439C(c) that the company be wound up.[8] By operation of s 446A(6), s 482 applies in relation to the winding up as if it were a winding up in insolvency or by the court.
4. An application under s 482 as applying because of subsection (6) may be made by the company pursuant to a resolution of the board (despite the operation of s 198G); or by the liquidator, or a creditor or contributory.[9] In the case of a company that becomes subject to a deed of company arrangement, the administrator of the deed has no standing under s 482 as applying because of s 446A(6). In this case, the plaintiffs (who brought the application in their capacity as deed administrators of the Companies) did not have standing under s 482 as applying because of subsection (6).
5. As is noted above, s 482 of the Corporations Act is located in pt 5.4B (Winding up in insolvency or by the court). It is not in pt 5.5 (Voluntary winding up) or pt 5.6 (Winding up generally). While not raised by counsel for the plaintiffs in this application, the possibility of uncertainty has in the past been raised as to whether the statutory power to stay a winding up as expressed in s 482 of the Corporations Act extends to a voluntary winding up.[10]
6. The decision of Choon v Chen [2019] FCA 1643 concerned an application for orders to stay a members' voluntary winding up. As was recorded by Colvin J at [15], counsel in that matter brought to the court's attention the possibility of uncertainty as to whether the statutory power to stay a winding up as expressed in s 482 of the Corporations Act extends to a voluntary winding up, noting that:

Section 513 provides that the provisions of the Act about winding up apply in relation to winding up whether in insolvency, by the Court or voluntarily, except so far as the contrary intention appears. Section 482 is within Part 5.4B which deals with winding up in insolvency or by the Court. It may be that the inclusion of s 482 in Part 5.4B manifests a contrary intention for the purpose of the qualifying words to s 513. However, the application of s 482 to a voluntary winding up is supported by the decision in Milicevic v Capital Scaffolding Pty Ltd (in liq) [2007] FCA 1579.

It was submitted for the plaintiffs that even if s 482 did not apply, there was power under s 90-15(1) of the Insolvency Practice Schedule (Corporations), being Schedule 2 to the Corporations Act, to stay the winding up. The breadth of that power and its application to a voluntary winding up was noted by Gleeson JA in Re ACN 152 546 453 Pty Ltd (formerly Hemisphere Technologies Pty Ltd) (in liq) [2018] NSWSC 1002 at [15]- [20]. Counsel for the defendants, appearing today, accepts that the Court has power under that provision to grant a stay of the winding up.

Even if there had been no power under either of those provisions, the Court has its general power to grant injunctive relief on an interlocutory basis for the purpose of preserving the subject matter of the proceedings, ...

1. In the circumstances described by Colvin J, the winding up of the company was ordered to be stayed until further order. While the reasons for decision make plain that his Honour was satisfied that there was the requisite power to grant the relief sought, the order made was silent to the power invoked.
2. In In the matter of Manband Pty Limited (in liquidation) (subject to Deed of Company Arrangement) [2018] NSWSC 1282, Black J noted that until its repeal on 1 September 2017, s 511 of the Corporations Act could be used to order the termination of a voluntary winding up. Noting that Gleeson J in Krejci (liquidator), in the matter of Community Work Pty Ltd) (in liq) [2018] FCA 425 had treated s 90-15 of the Insolvency Practice Schedule (Corporations) as supporting the making of a direction to a voluntary liquidator, analogous to those which might previously have been made under s 479(3) and s 511 of the Corporations Act, Black J recorded that he was satisfied that the court has power to terminate a voluntary winding up under s 90-15.[11]
3. In this case, I proceeded on the basis that the inclusion of s 482 in pt 5.4B did not manifest a contrary intention for the purpose of the qualifying words to s 513, while also cognisant that s 90-15 of the Insolvency Practice Schedule (Corporations) might have been relied upon in the alternative and that I would have been content to grant the requested relief pursuant to that power in all of the circumstances.

1. As was observed by Black J in In the matter of MWM Sydney Pty Limited (in liquidation) [2016] NSWSC 688 at [16], the applicable legal principles are well established, but may nonetheless be difficult in their application in a particular case.
2. The factors relevant to whether a winding up should be stayed or terminated were summarised by Master Lee QC of the Supreme Court of Queensland in Re Warbler Pty Ltd (1982) 6 ACLR 526 at 533 as follows:[12]
   1. The granting of a stay is a discretionary matter, and there is a clear onus on the applicant to make out a positive case for a stay: Re Calgary and Edmonton Land Co Ltd [1975] 1 WLR 355 at 358-9; [1975] 1 All ER 1046 per Megarry J. See also sec 243 of the Act [ie, the Companies Act 1961].
   2. There must be service of notice of the application for a stay on all creditors and contributories, and proof of this: Re South Barrule Slate Quarry Company (1869) LR 8 Eq 688; Re Bank of Queensland Ltd (1870) 2 QSCR 113.
   3. The nature and extent of the creditors must be shown, and whether or not all debts have been discharged: Krextile Holdings Pty Ltd v Widdows supra [[1974] VR 689]; Re Data Homes Pty Ltd supra [[1971] 1 NSWLR 338].
   4. The attitude of creditors, contributories and the liquidator is a relevant consideration: sec 243(1), Re Calgary and Edmonton Land Co Ltd supra.
   5. The current trading position and general solvency of the company should be demonstrated. Solvency is of significance when a stay of proceedings in the winding-up is sought: Re a Private Company [1935] NZGazLawRp 17; [1935] NZLR 120; Re Mascot Home Furnishers Pty Ltd (in liq) [1970] VicRp 78; [1970] VR 593 at 598.
   6. If there has been non-compliance by directors with their statutory duties as to the giving of information or furnishing a statement of affairs, a full explanation of the reasons and circumstances should be given: Re Telescriptor Syndicate Ltd, supra [[1903] 2 Ch 174].
   7. The general background and circumstances which led to the winding-up order should be explained: Krextile Holdings Pty Ltd v Widdows, supra.
   8. The nature of the business carried on by the company should be demonstrated, and whether or not the conduct of the company was in any way contrary to 'commercial morality' or the 'public interest': Krextile Holdings Pty Ltd v Widdows, supra; Re Data Homes Pty Ltd, supra ...
3. As was further observed by Black J in In the matter of MWM Sydney Pty Limited (in liquidation) at [17]:

Master Lee noted that this list was not intended to be exhaustive and should not be regarded as a series of rigid principles, and that proposition has subsequently been endorsed in later case law: Dubolo Pty Ltd (t/as Fender Signs) v Codrington Investment Corporation Pty Ltd (1998) 26 ACSR 723 at 724, Metledge (t/as Metledge & Associates) v Bambakit Pty Ltd (in liq) [2005] NSWSC 160 at [5] and Von Risefer v Mainfreight International Pty Ltd (2009) 25 VR 366; 73 ACSR 427; [2009] VSCA 179 at [21]; Re 311 Hume Highway Liverpool Fund Pty Ltd (in liq) (2013) 93 ACSR 683; [2013] NSWSC 465 at [4].

1. In circumstances where winding up orders had been made against a company on insolvency grounds, the question of solvency will be a primary consideration for the court: Brolrik Pty Ltd v Sambah Holdings Pty Ltd [2001] NSWSC 1171; (2001) 164 FLR 91 at [28]. In In the matter of Glass Recycling Pty Ltd [2014] NSWSC 439 at [18], Brereton J stated, relevantly:

... Thus it has been said that an order terminating the winding up would usually be made if all the creditors are paid out, the liquidators' costs and expenses are covered, and the members agree [Apostolou (as trustee of the Vasiliou Family Trust) v VA Corporation of Australia Pty Ltd (2010) 77 ACSR 84; [2010] FCA 64 at [58]; Giudice v Bolwell (as liquidator of Kitchen Dimensions Pty Ltd) (in liq) [2012] VSC 280].

1. As ws observed by Austin J in Vero Workers Compensation (NSW) Ltd v Ferretti [2006] NSWSC 292; (2006) 57 ACSR 103 at [17], the court has discretion as to whether the winding up should be terminated, and in exercising its discretion it considers the interests of the company's current and future creditors, the liquidator, the contributories, and the public interest in matters of commercial morality and the winding up of insolvent companies.
2. The principles relevant to the granting of an order terminating a winding up under s 482 were also summarised by Black J in In the matter of Living Creatively Exhibitions Pty Ltd (in liquidation) (subject to deed of company arrangement) [2013] NSWSC 717 at [7] as follows:

Generally, the court will not terminate a winding up unless a company will have additional financial strength and stability to provide confidence that it can continue without an appreciable risk of returning to liquidation: Re Data Homes Pty Ltd (in liq) and the Companies Act [1972] 2 NSWLR 22 at 27; Leveraged Equities Ltd v Hilldale Australia Pty Ltd (2008) 26 ACLC 182; [2008] NSWSC 190; Re SNL Group Pty Ltd (in liq) [2010] NSWSC 797. A question will arise as to whether sufficient steps have been taken to recapitalise a company or restore its solvency so that, in the language of Re Pine Forests of Australia (Canberra) Pty Ltd [2010] NSWSC 1127 at [3], its 'financial health' is such that it may safely be released from the form of external administration focussed mainly on the interests of creditors and returned to the mainstream of commercial life where it may, under the control of its directors, incur new debts that have to be paid as and when they fall due. Similarly in Re SNL Group Pty Ltd (in liq) above at [24] Bergin CJ observed that:

it is clear that in determining whether to terminate the winding up of a company, it is usual that the most significant matter for consideration is the solvency of the company. The other considerations, such as the extent of the creditors, the status of the debts and the nature of the company's business will be taken into account in determining whether the company has returned to, or will be returned to solvency.

1. In circumstances where an application is made pursuant to s 482(1) in relation to a company subject to a deed of company arrangement, then, in determining the application, the court must have regard to all of the matters prescribed in subsection (2A).[13]
2. In In the matter of Manband Pty Limited (in liquidation) (subject to Deed of Company Arrangement), Black J further recorded that given the existence of a deed of company arrangement in the circumstances which informed that application, the court would take into account the objectives of pt 5.3A of the Corporations Act.[14]

1. This application was made by Messrs Tucker and Bumbak in their capacity as the deed administrators of the Companies, with standing pursuant to s 482(1A)(c).

1. By a notice to creditors issued on 7 November 2025, the creditors of the Companies were given notice of the application, and by the first affidavit of Ms Scaddan, there was proof of that notice before the court.
2. Also, I was satisfied that ASIC had been given notice of the application as was required by the Supreme Court (Corporations) (WA) Rules 2004 r 2.8(3). In addition, notice had been given to the liquidators of Territory Resources and Warrego Operations, Mr Xie, Xie Corporation Pty Ltd and Gold Valley Investments Pty Ltd.
3. Neither ASIC nor any interested person sought to be heard in relation to the application.

Nature of business and circumstances leading to application

1. Courts have previously accepted that a stay of the winding up upon the appointment of an administrator 'may be appropriate where it is designed to facilitate the proposed restructuring transactions and finalise the external administrations (rather than restore the company to ordinary trading operations)'.[15]
2. The nature of the business and the circumstances leading to the application were deposed to comprehensively by Mr Tucker. The court also had the benefit of the report to creditors dated 15 January 2025, which was prepared by Messrs Tucker and Bumbak in their capacity as administrators of the Companies.[16]
3. As was recorded in that report to creditors, the initial appointments of external administrators, including liquidators to the Companies, related to the failure of the Companies to cure the defaults under the Secured Facility, and the actions of TransAsia Private Capital Limited to recover its funding amount.[17] It also recorded that the director, Mr Xie, had entered into the settlement deed with the intention to provide a return to creditors greater than a liquidation and take back control of the Companies; and under the Corporations Act, the only way Mr Xie could achieve these objectives was by proposing a deed of company arrangement.[18]
4. At section 7 of the report to creditors, Messrs Tucker and Bumbak recorded that they had adopted the work undertaken by previous external administrators of the Companies in relation to determining the date of insolvency of the Companies; breaches of duty and any other offences under the Corporations Act by the directors; and potential recovery actions by a liquidator (if appointed).[19]
5. The recommendation made to creditors (recorded at section 10.2 of the report to creditors) was as follows:[20]

It is our opinion that creditors approve both the Companies' DOCAs at the Second Meetings of Creditors for the following reasons:

1. It was the only credible DOCA proposal received that had the ability of being accepted
2. The return to unsecured creditors is equal to or greater than a liquidation scenario
3. It allows the non-participating secured creditors to preserve their debt
4. The Companies' employees are expected to have their superannuation paid out in full
5. The Companies' unsecured creditors will have their claims paid quicker than in a liquidation scenario
6. Related parties will not be participating in the DOCA whereas in a liquidation of the Companies they could claim in all liquidations
7. The recoverability of insolvent trading claims and antecedent transactions could be difficult, expensive and potentially uncommercial given the Directors' personal financial position.
8. As recorded above, Mr Tucker deposed that this application was the final step in a settlement that had been reached between the director of Gold Valley Holdings, Territory Resources and Warrego Operations and the Companies' secured creditors which would see the creditors of the Companies receive more than they would in winding up, and would result in each Company continuing in existence, in circumstances where the majority of the creditors of each Company had voted in favour of the settlement and the return of the Companies to solvency through the execution of deeds of company arrangement.
9. Given the existence of the deeds of company arrangement in the circumstances which informed this application, the application was consistent with and promoted the object of pt 5.3A.

1. As to the interests of the current creditors of the Companies, counsel for the plaintiffs emphasised that:[21]

(a) at the second meeting of creditors, the creditors of each of the Companies voted in favour of the proposed deeds of company arrangement, with unanimous approval with respect to the Territory Resources and Warrego Operations deeds of company arrangement;[22]

(b) it was estimated that priority creditors (employees) of Gold Valley Holdings and Warrego Operations would receive 100 cents in the dollar under the respective deed of company arrangement (and that Territory Resources did not have any priority employee creditors);[23]

(c) it was estimated that unsecured creditors of each of the Companies would receive between 1 and 1.9 cents in the dollar under the deeds of company arrangement compared to either a nil or lower return in a liquidation scenario;[24] and

(d) the 'Deed Fund' had already been established and the 'Deed Contribution' had been paid pursuant to the terms of each of the deeds of company arrangement.[25]

1. I also noted the opinion expressed by Mr Tucker, an experienced insolvency practitioner, that it was in the best interests of present creditors that the winding up of each of the Companies be stayed until the relevant deed of company arrangement had effectuated and following effectuation, was terminated, for the reasons summarised at [26] of these reasons.
2. I accepted that a stay of the winding up of the Companies and the termination of the winding up upon effectuation of the deeds of company arrangement was in the interests of the Companies' current creditors, as it would allow the deeds of company arrangement to effectuate and likely provide present creditors with a more favourable return than if the winding up of each of the Companies were to continue.
3. As to the interests of future creditors, counsel for the plaintiffs observed that the solvency of a company is fundamental to the exercise of the court's discretion to terminate an order for winding up in insolvency;[26] and that the general concern about solvency is combined, in the cases, with a specific concern about saddling future creditors with the risk of dilution of their claims by pre-termination claims.[27] In this case, that specific concern was addressed by cl 11 of the deeds of company arrangement and the confirmation provided by Mr Xie, reproduced below.

1. As to the interests of the liquidators of the Companies, counsel for the plaintiffs noted that:[28]

(a) the liquidators of Gold Valley Holdings (Messrs Tucker and Bumbak) were also the applicants in this proceeding (albeit in their capacity as deed administrators);

(b) the liquidators of Territory Resources and Warrego Operations had appointed Messrs Tucker and Bumbak as administrators of those companies on the basis that deed of company arrangement proposals would be received;

(c) the liquidators were bound by the terms of the deeds of company arrangement;[29] and

(d) if the deeds of company arrangement were terminated, the liquidators would be obliged to investigate and report as to the affairs of the Companies with no obvious source of funding for their costs.[30]

1. I also noted the opinion expressed by Mr Tucker that the interests of the liquidators of Territory Resources and Warrego Operations, and the interest of the deed administrators for each of the Companies were best served by the grant of the relief sought, for the reasons summarised at [28] of these reasons. I weighed in the balance that the interests of the liquidators would not be adversely affected by the orders promoted, and for the reasons explained by Mr Tucker, would be served by the proposed course.

1. I also had regard to the interests of contributories, noting that Xie Corporation Pty Ltd is the shareholder of the Companies and a proponent of the deeds of company arrangement. Further, as is recorded above, Ms Scaddan deposed to notice of the application on Xie Corporation Pty Ltd, and Mr Tucker deposed that Mr Xie was aware of and had consented to the orders sought by the application. As was sought to be emphasised by counsel for the plaintiffs, Mr Xie had indicated his support and intention to continue to fund costs incurred by the Companies post effectuation of the deeds of company arrangement by way of providing a letter of confirmation to that effect.[31]
2. I weighed the interests of the contributories which I considered would be advanced by the orders promoted, given that the application was made in a context of the settlement deed, and deeds of company arrangement that contemplated the Companies continuing in existence.

1. The debt owed across the group was approximately $28 million. In his affidavit, Mr Tucker deposed to and explained the basis for his opinion that after the deeds of company arrangement effectuate, the Companies will be solvent as they will be able to pay their debts as and when they fall due. The basis for his opinion is summarised at [22] to [24] above.
2. I weighed in the balance cl 11 of the deeds of company arrangement, which concern 'Excluded Claims' (which are substantively in the same terms).[32] Clause 11 of the Gold Valley Holdings deed of company arrangement provides:

(a) With respect to the Claims by the Trans Asia Parties: > > > (i) the Trans Asia Parties are excluded from receiving any payment under this deed;
> >
> > (ii) those claims are released under this Deed; and
> >
> > (iii) the Trans Asia Parties agree to remove their security registrations from the Personal Property Securities Register. > >
>
> (b) With respect to the Claims by the Director, his Related Entities and his Related Parties: > > > (i) the Director, his Related Entities and his Related Parties are excluded from receiving any payment under this deed;
> >
> > (ii) those claims will not be released under this deed (and will be continuing obligations of GVH); and
> >
> > (iii) the Director, his Related Entities and his Related Parties irrevocably agree:

(A) not to seek repayment until after this deed is terminated;

(B) if payment of their Claims is made, GVH is solvent and will remain solvent when payment is made; and

(A) to enter into any such agreement required to give effect to any such agreement required to give effect to this clause 11(b)(iii).

(c) The Claims by the Former Director, his Related Entities and his Related Parties, are:

(i) excluded from receiving any payment under this deed; and

(ii) otherwise released under this deed.

(d) Any other party claiming to be a secured party agrees to remove their security registration from the Personal Property Securities Register, save for the Director Parties.

1. Attached to Mr Tucker's affidavit was a further written confirmation provided by Mr Xie, by which Mr Xie recorded as follows:[33]
   1. I am aware of your intention to make an application to the Supreme Court of Western Australia for orders pursuant to section 482 of the Act to terminate the winding up of each of the Companies upon effectuation of each of their respective deeds of company arrangement (DOCAs) and consent to the proposed orders sought.
   2. Consistent with my obligations pursuant to clause 11(b)(iii) of each of the DOCAs I confirm that:
      1. I will not seek, nor will the Proponents, Related Entities or Related Parties (as defined in the DOCAs), seek payment in respect of any claims I or any of them may have against the Companies until after the DOCAs are terminated or effectuated (as the case may be); and
      2. if a payment the subject of paragraph (a) is to be made, it will only be made if the Companies are solvent at the time of the payment and will remain solvent after the payment is made.
   3. In addition, there are not any costs to be incurred in relation to the Companies post DOCA for the immediate future, however, if there are such costs I confirm my intention to continue to fund any additional costs incurred by the Companies post effectuation of the DOCAs.
2. It was the plaintiffs' position that, in light of these matters, considerations as to solvency of the Companies were satisfied as it was intended that the Companies would be returned to solvency post‑effectuation of the deeds of company arrangement, and would be returned to the hands of the director (Mr Xie) who had provided written confirmation of his intention to continue to financially support costs incurred by the Companies post-effectuation.[34] These were matters of weight in the disposition of the application.

1. In considering the application, I had regard to the nature of the business carried on by the Companies, and matters of commercial morality and public interest. I was also cognisant that, as was observed by Austin J in Vero Workers Compensation (NSW) Ltd v Ferretti Pty Ltd (in liq) [18]:

... there is a difference between cases where termination is sought of the winding up of a company that is subject to a deed of company arrangement, and cases where there is no such deed in place. In cases of the latter kind, solvency is highly significant in the consideration of the public interest, whereas in cases of the former kind, the public interest must be viewed in the context of the purposes of Pt 5.3 A.

1. Consistent with the approach adopted by Austin J, I had regard to the arrangements adopted in the deeds of company arrangement and considered them to be likely to maximise the chances of the Companies, or as much as possible of its business, continuing in existence (see s 435A(a)), noting (as was also observed by Austin J), that in assessing these matters, there is no absolute rule that a winding up cannot be terminated as long as one or more debts of the company remain undischarged.[35]
2. On balance, having regard to the terms of the deeds of company arrangement, I was satisfied that when viewed in the context of the purposes of pt 5.3 A, the making of the orders promoted would not be contrary to the public interest.
3. I also took comfort that the form of orders promoted by the plaintiffs at the hearing expressly provided for the giving of notice of the orders to the key stakeholders; and for there to be liberty to apply.[36]

1. For these reasons, I was satisfied that the plaintiffs had made out a positive case for a stay and, following effectuation of each of the relevant deeds of company arrangement, the termination of the winding up of each Company. After hearing counsel on 11 November 2025, the application was granted and the orders made are reproduced at sch A.

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

[1] As was recorded in the originating process.

[2] Plaintiffs' outline of submissions filed on 27 October 2025 pars 1 - 2. See also the affidavit of RS Tucker sworn on 27 October 2025 par 4.

[3] Plaintiffs' outline of submissions filed on 27 October 2025, par 10(f).

[4] Affidavit of RS Tucker sworn on 27 October 2025, RST20 (pages 489, 498), RST21 (pages 521, 530), RST22 (pages 553, 562). See also RST18 (pages 382 and 402).

[5] Affidavit of RS Tucker sworn on 27 October 2025 pars 29 - 30, RST26.

[6] Thomson Reuters, McPherson's Law of Company Liquidation (at 1 December 2025) [16.100], citing Thomson v Henderson's Transvaal Estates Ltd [1908] UKLawRpCh 57; [1908] 1 Ch 765, 778.

[7] Corporations Act s 482(1A)(a) and (c).

[8] Corporations Act s 446A(1)(a).

[9] Corporations Act s 446A(7).

[10] Thomson Reuters, McPherson's Law of Company Liquidation (at 1 December 2025) [16.250], referring to Choon v Chen [2019] FCA 1643 [15].

[11] In the matter of Manband Pty Limited (in liquidation) (subject to Deed of Company Arrangement) [19].

[12] Referred to with approval by Black J in In the matter of MWM Sydney Pty Limited (in liquidation) [16].

[14] In the matter of Manband Pty Limited (in liquidation) (subject to Deed of Company Arrangement) [20], citing Mercy & Sons Pty Ltd v Wanari Pty Ltd [2000] NSWSC 756; (2000) 157 FLR 107 [53]. See also Vero Workers Compensation (NSW) Ltd v Ferretti [18].

[15] Hughes, in the matter of Vah Newco No 2 Pty Ltd) (in liq) [2020] FCA 1121 [32], cited with approval by Hill J in Re Dundas Mining Pty Ltd (in liq); Ex parte John Allan Bumbak as joint and several liquidator of Dundas Mining Pty Ltd (in liq) (ACN 608 839 050) [2025] WASC 157 [45].

[16] Affidavit of RS Tucker sworn on 27 October 2025, RST18.

[17] Affidavit of RS Tucker sworn on 27 October 2025, RST18 (page 390).

[18] Affidavit of RS Tucker sworn on 27 October 2025, RST18 (page 390).

[19] Affidavit of RS Tucker sworn on 27 October 2025, RST18 (page 397).

[20] Affidavit of RS Tucker sworn on 27 October 2025, RST18 (page 410).

[21] Plaintiffs' outline of submissions filed on 27 October 2025 par 24.

[22] Affidavit of RS Tucker sworn on 27 October 2025 par 22.

[23] Affidavit of RS Tucker sworn on 27 October 2025, RST18 (page 383).

[24] Affidavit of RS Tucker sworn on 27 October 2025, RST18 (page 383).

[25] Affidavit of RS Tucker sworn on 27 October 2025 par 24.

[26] Plaintiffs' outline of submissions filed on 27 October 2025 par 33, citing Vero Workers Compensation (NSW) Ltd v Ferretti [26], and also Sutherland v Rahme Enterprises [2003] NSWSC 673; (2003) 46 ACSR 458 [9].

[27] Plaintiffs' outline of submissions filed on 27 October 2025 par 33, citing Vero Workers Compensation (NSW) Ltd v Ferretti [26], which cites Re Data Homes Pty Ltd [1971] 1 NSWLR 338 (and on appeal, Re Data Homes Pty Ltd (in liq) [1972] 2 NSWLR 22) and Re Nature Springs Pty Ltd (in liq) (1994) 13 ACSR 50.

[28] Plaintiffs' outline of submissions filed on 27 October 2025 par 27.

[29] Affidavit of RS Tucker sworn on 27 October 2025, RST20 (page 493), RST21 (page 526), RST22 (page 558).

[30] Affidavit of RS Tucker sworn on 27 October 2025 par 38.

[31] Plaintiffs' outline of submissions filed on 27 October 2025 par 31; affidavit of RS Tucker sworn on 27 October 2025 pars 29(c), 30, RST26.

[32] Affidavit of RS Tucker sworn on 27 October 2025, RST20 (pages 499 - 500); RST21 (pages 531 ‑ 532); RST22 (page 564).

[33] Affidavit of RS Tucker sworn on 27 October 2025, RST26 (page 595); ts 7 (11 November 2025).

[34] Plaintiffs' outline of submissions filed on 27 October 2025 par 37.

[35] Plaintiffs' outline of submissions filed on 27 October 2025 par 35; Vero Workers Compensation (NSW) Ltd v Ferretti [18], citing Mercy & Sons Pty Ltd v Wanari Pty Ltd [48].

[36] See sch A (orders 3 and 4 of the orders made on 11 November 2025).