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[2026] NSWSC 1023
Supreme Court of NSW
2026-08-21
Nixon J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: In the matter of Ironbark Holdings Australia Pty Ltd (No 2) [2026] NSWSC 1023
Hearing dates: 21 August 2026
Date of orders: 21 August 2026
Decision date: 21 August 2026
Jurisdiction: Equity - Corporations List
Original judgment source is linked above.
Before: Nixon J
Decision: Adjournment application dismissed
Catchwords: CORPORATIONS – where administrators appointed over defendant companies shortly before delivery of judgment on plaintiff’s application for the appointment of provisional liquidators – where director of defendant companies made an application prior to the delivery of judgment to adjourn the plaintiff’s application – where administrators did not appear on the adjournment application – where defendant indicated an intention to propose a deed of company arrangement but no details of such proposal were provided to the Court – where there were public interest grounds in favour of the plaintiff’s application for the appointment of provisional liquidators – whether there was a basis for the Court to be satisfied that it was in the interests of the defendant companies’ creditors for those companies to continue under administration rather than have provisional liquidators appointed – adjournment application refused
Legislation Cited: Corporations Act 2001 (Cth) s 440A
Cases Cited: In the matter of Offshore & Ocean Engineering Pty Ltd [2012] NSWSC 1296
In the matter of Plutus Payroll Australia Pty Limited [2017] NSWSC 1041
Lubavitch Mazal Pty Ltd v Yeshiva Properties No.1 Pty Ltd [2003] NSWSC 535
Category: Procedural rulings
Parties: Australian Securities and Investments Commission (Plaintiff)
Christopher Edwards (Applicant on Interlocutory Process)
Representation: Counsel:
C Hamilton-Jewell (Plaintiff)
J Hastie (Applicant on Interlocutory Process)
Solicitors:
Australian Government Solicitor (Plaintiff)
Mills Oakley Lawyers (Applicant on Interlocutory Process)
File Number(s): 2026/122774
Publication restriction: Nil
This matter was heard before me on 19 August 2026. At the end of the hearing, I reserved judgment.
This morning, my chambers notified the parties that judgment would be delivered at 4.00pm today (21 August 2026).
At 2.12pm, my chambers received an email from Mills Oakley, copied to ASIC’s solicitors, stating that, at 2.05pm, administrators were appointed to each of the defendant companies (Companies), and that Mills Oakley no longer acts for the Companies.
The email further stated that Mr Edwards and the administrators wished to be heard on the application of s 440A of the Corporations Act 2001 (Cth) (Act) prior to the Court appointing provisional liquidators, but that the administrators would not be in a position to appear this afternoon.
The email from Mills Oakley attached minutes of board meetings of the Companies at which Mr Edwards had resolved to appoint Mr Dale Clout and Mr Scott Clout of David Clout & Associates as Administrators to each of the Companies.
At 2.31pm, my chambers responded to Mills Oakley, stating that the matter remained listed for judgment at 4.00pm and that if the Administrators sought to make any application, they could do so before judgment was delivered.
At 3.22pm, my chambers received a further email from Mills Oakley, on behalf of Mr Edwards, attaching an Interlocutory Process seeking an order that ASIC’s application for interim relief, including for the appointment of provisional liquidators, be “adjourned to another day”.
At 3.30pm, the Administrators sent an email to my chambers, stating that they were unable to appear this afternoon, as they had not instructed solicitors, but that they wished to make an application that the Companies continue in administration for a short period so as to enable the Administrators to undertake investigations and assess a deed of company arrangement (DOCA) “which we understand is to be proposed by [Mr Edwards]”.
At 3.44pm, my chambers responded to the Administrators, stating that the matter was listed for judgment at 4.00pm, that Mr Edwards had notified the Court that he intended to make an application to adjourn ASIC’s application for the interim relief, and that it was a matter for the Administrators whether they wished to appear.
When the matter was called at 4.00pm, Mr Hastie, who had represented the Companies at the hearing on 19 August 2026, appeared on behalf of Mr Edwards. Mr Hastie moved on the application for adjournment which had been provided to my chambers earlier that afternoon. Mr Hastie did not read any affidavit or tender any evidence in support of the adjournment application.
Mr Hastie indicated that Mr Edwards sought an adjournment for a period of up to one week (or for a lesser period if the Court thought that was appropriate). The basis for this application was that control of the Companies was now in the hands of the Administrators and an adjournment was sought in order to allow the Administrators to do the things indicated in their email (referred to in paragraph [8] above).
The adjournment application was opposed by ASIC.
In considering Mr Edwards’ application, I am mindful of the observations of Brereton J in In the matter of Offshore & Ocean Engineering Pty Ltd [2012] NSWSC 1296 at [15]. His Honour there said that when a company appoints administrators following resistance to a winding-up proceeding, “the Court approaches with a degree of scepticism whether the appointment is not an attempt as a last resort to avoid the consequences of liquidation”.
The minutes of each of the relevant meetings record that Mr Edwards appointed the Administrators to each of the Companies because he was of the opinion that “the Company is, because of actions of ASIC, pressing to wind up the Company likely to become insolvent at some future time”.
ASIC brought this winding-up application in March 2026. However, Mr Edwards took no steps to appoint administrators to any of the Companies until less than 2 hours before judgment was to be delivered.
As Mr Hastie acknowledged, those are matters which the Court might in its discretion take into account in determining whether the adjournment sought should be granted.
Section 440A(3) of the Act provides as follows:
The Court is not to appoint a provisional liquidator of 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 have a provisional liquidator appointed.
“Section 440A(3) requires the Court, when confronted with an application for the appointment of a provisional liquidator of a company in administration, to consider whether it is in the interests of the company’s creditors for it to continue under administration rather than to have a provisional liquidator appointed. The choice is between administration and the appointment of a provisional liquidator, rather than (under s 440A(2)) between administration and winding up. Subject to that difference, however, it appears to me that the investigation is essentially the same, and the principles governing it are those stated in the cases to which I have referred. Under subsection (3), as under subsection (2), the person resisting winding up or the appointment of a provisional liquidator has the onus of satisfying the Court that the interests of the company’s creditors are better served by administration. The question (or at any rate, the main question) will be whether there is on the evidence any real, practical prospect, as opposed to mere optimistic speculation, that the creditors will receive a better or quicker dividend if administration is permitted to continue, than they would eventually hope to receive if a provisional liquidator were appointed.”
“Implicit in section 440A(3) is the proposition that the Court can appoint a provisional liquidator of a company in administration, unless satisfied that it is in the interests of the company's creditors to continue under administration rather than have a provisional liquidator appointed.”
The question therefore is whether there is a basis for the Court to be satisfied that it is in the interests of the Companies’ creditors (and specifically, the investors) for the Companies to continue under administration, rather than to have provisional liquidators appointed.
It appears that Mr Edwards seeks to defer the delivery of judgment on ASIC’s application so that he can propose a DOCA, about which no details have been provided. Mr Hastie frankly acknowledged that he could not provide any information to the Court about what this DOCA might contain (which is unsurprising given the fact that the appointment of the Administrators occurred only around two hours ago, and appears to have been a rushed response to the prospect of an imminent judgment).
It is pure speculation whether Mr Edwards will be able to propose a DOCA that might lead to a better return for creditors – particularly given the evidence before the Court at the hearing of 19 August 2026 regarding the serious deficiencies in the financial records of the Companies, and the lack of any clarity about the Companies’ assets or liabilities.
As ASIC submitted, the evidence at the hearing gives rise to serious concerns regarding Mr Edward’s management of the Companies and regarding their financial records, financial position and operations, which would likely, in turn, give rise to serious concerns regarding any DOCA that might be proposed by Mr Edwards.
The position is similar to that in Plutus Payroll, where Brereton J observed (at [20]) that:
“… there is nothing to indicate any realistic probability of a deed of company arrangement being proposed or any benefit to creditors arising in that way. I appreciate that the administrators have not had an opportunity to adduce evidence on that issue, but having regard to the totality of the background information, it seems improbable in the extreme that a deed of company arrangement will be propounded, at least one which would involve sufficient benefit for creditors to deter the Court from proceeding to a winding up.”
Those observations apply with equal force here.
Further, as Counsel for ASIC submitted, in the event that Mr Edwards is able to formulate any sensible proposal for a restructuring of the Companies, there is no reason why such proposal could not be put to the provisional liquidators for their consideration.
In any case, having regard to the evidence and submissions at the hearing on 19 August 2026, I have determined that provisional liquidators should be appointed over the Companies on public interest grounds, primarily due to a lack of confidence in their management, and concerns as to the maintenance of their financial records, their financial position and their business operations. Those matters give rise to a risk to the public which warrants protection by the appointment of provisional liquidators.
That has two consequences. The first is that, as I have mentioned, there is no reason to have any confidence that Mr Edwards will be able to propose a DOCA that will be for the benefit of the Companies’ creditors.
The second is that even if there were more than a speculative prospect that such a DOCA could be proposed by Mr Edwards, the strong public interest considerations which underpin the appointment of provisional liquidators mean that I am not able to be satisfied that it is in the interests of the Companies’ creditors for the Companies to continue under administration rather than have provisional liquidators appointed.
The provisional liquidators will have much broader powers than the Administrators. The orders proposed by ASIC require the provisional liquidators to investigate not only the assets and liabilities of the various entities and the likely return to creditors, but also any suspected contraventions of the Act or of the Australian Securities and Investments Commission Act 2001 (Cth) by any of the Companies or by Mr Edwards, and any potential antecedent transaction that may require further investigation.
Pursuant to the orders proposed by ASIC, the provisional liquidators will also have power to investigate and report on each of the matters of concern identified in the affidavit of Mr Hsueh, regarding the financial position of the Companies and their business operations. It is in the public interest, as well as the interests of creditors, that provisional liquidators be appointed to investigate those matters.
For those reasons, I am not satisfied that it is in the interests of the Companies’ creditors for the Companies to continue under administration, rather than have provisional liquidators appointed, and I do not consider that there is any realistic prospect of that view changing by reason of some undefined DOCA that Mr Edwards might subsequently propose.
Accordingly, I refuse the application to adjourn the determination of ASIC’s application for interim relief, and I am satisfied, having regard to the terms of s 440A(3) of the Act and the findings I have made, that this provision does not operate to prevent the Court from proceeding to appoint provisional liquidators to the Companies.
I will therefore proceed to deliver judgment on ASIC’s application. (For this judgment, see In the matter of Ironbark Holdings Australia Pty Ltd [2026] NSWSC 1004).
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