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[2025] NSWSC 1385
General information, not legal advice.
Supreme Court of NSW
2025-11-18
Black J
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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 Liberty Primary Metals Australia Pty Ltd & Ors [2025] NSWSC 1385
Hearing dates: 18 November 2025
Date of orders: 18 November 2025
Decision date: 18 November 2025
Jurisdiction: Equity - Corporations List
Before: Black J
Decision: Third Defendant’s interlocutory process is dismissed and consequential orders made. Third Defendant to pay the Plaintiff’s costs of the interlocutory process as agreed or as assessed.
Catchwords: CORPORATIONS — accounts — lodgement of financial reports — where company seeks further extension of time to submit financial reports required by Pt 2M.3 of the Corporations Act 2001 (Cth) — where orders extending time for the filing of financial reports already made on three prior occasions — where financial reports still not filed — where evidence led to support company’s ability to complete filing if further extensions granted not sufficient — application refused
Legislation Cited: - Corporations Act 2001 (Cth), s 1274(11)
Category: Procedural rulings
Parties: Australian Securities and Investments Commission (Plaintiff/Respondent)
Liberty Primary Metals Australia Pty Ltd (in administration) (First Defendant)
Tahmoor Coal Pty Ltd (Second Defendant)
Liberty Bell Bay Pty Ltd (Third Defendant/Applicant)
Representation: Counsel:
S Patterson (Plaintiff/Respondent)
S Aspinall (Third Defendant/Applicant)
Solicitors:
Australian Securities and Investments Commission (Plaintiff/Respondent)
Norton Rose Fulbright (Third Defendant/Applicant)
File Number(s): 2025/246555
By Interlocutory Process filed on 10 November 2025, the Third Defendant in these proceedings, Liberty Bell Bay Pty Ltd (“LBB”) seeks orders, first, that it have leave to seek an extension of the time for compliance with order 4 made on 17 July 2025, as last amended on 22 September 2025 and have leave to rely on an affidavit of Mr Sogani dated 10 November 2025 in support of that application. I will grant that leave, on the basis that the matters raised by this application are important and, although the application is brought outside the time that was contemplated for such an application in the Court's earlier orders, it is plainly preferable that the application be determined upon its merits. That approach will promote the just resolution of the matters in the proceedings and is in the community's interest, rather than the application being determined by default, by LBB’s delay in bringing it.
LBB seeks further orders extending the time for compliance with earlier orders made by the Court, already extended on several occasions, in respect of order 4 made on 17 July 2025 to 6 February 2026 and order 5 to 3 April 2026. The scope of the orders sought will be better understood when I say something further about the nature of the proceedings and the history.
By Originating Process filed on 27 June 2025, the Australian Securities and Investments Commission (“ASIC”) sought orders under s 1274(11) of the Corporations Act 2001 (Cth) (“Act”) that three companies, of which LBB is the third, file financial reports in accordance with the requirements of Pt 2M.3 of the Act, had then not filed LBB had then not filed financial reports were for the years dated 30 June 2021 to 30 June 2024. Mr Aspinall, who appears for LBB in this application, fairly acknowledges that the financial report of LBB dated 30 June 2025 has also now not been filed when due.
On 17 July 2025, the Court made orders, by consent, extending the time of the filing of those reports, in respect of LBB, to 3 October 2025 for the financial reports for the 2021, 2022 and 2023 financial years and to 31 October 2025 for the financial report for the 2024 financial year.
On 21 August 2025, again by consent, the Court made orders further extending the time for LBB to comply with order 4 of the 17 July orders, in respect of the 2021, 2022 and 2023 financial years to 10 October 2025, and to comply with order 5, in respect of the 2024 financial year, to 7 November 2025.
By orders made on 22 September 2025, again by consent, the time for LLB to file those financial reports was further extended, in the same structure, to 10 November 2025 and 7 December 2025 respectively. It is now apparent that LBB has not complied with the order made requiring that its financial reports for the financial years ended 30 June 2021, 30 June 2022 and 30 June 2023 be filed by 10 November 2025, and the evidence indicates that it will not be able to comply with the order for its 2024 financial reports to be filed by 7 December 2025 and, as I noted above, it has now also not filed its financial reports for the 2025 financial year.
By the Interlocutory Application to which I referred above, LBB seeks further to extend the time to file those reports, by a substantial period, to 6 February 2026 in respect of its 2021, 2022 and 2023 financial reports and 3 April 2026 in respect of its 2024 financial report.
The application is supported by an affidavit dated 10 November 2025 of Mr Sogani, who is the Group Chief Financial Controller of the companies known as "GFG Alliance", including LBB. Mr Sogani notes that LBB operates a ferro manganese smelter in Tasmania and employs a number of employees. He acknowledges LBB's failure to comply with the Court’s previous orders, as extended, and notes that the completed audit of the relevant reports is a prerequisite to LBB finalising those reports. He refers to a letter dated 19 September 2025 by which LBB's auditors indicate that they expected to be able to finalise the relevant audit by the dates which were the basis of the last of the extension orders made. Plainly, that did not occur.
Mr Sogani refers to information provided to him by the financial controller for the Australian GFG entities that the same four persons in the finance team within GFG Alliance are engaging with auditors in respect of the outstanding audits of the first and second defendants in these proceedings, as well as LBB. I note that one of those entities has now been placed in voluntary administration, and another has, as I understood it, filed its financial reports. In any event, it is not apparent that limitations of a company's staff are a strong explanation for such a long delay in filing its financial reports, since one might well expect a company to match its resources to its statutory obligations rather than to seek to defer its compliance with its statutory obligations over a long period to reflect its limited staff resources.
Mr Sogani also refers to a letter dated 10 November 2025 from CBB’s auditors, which is exhibited to his affidavit, which refers to a discussion on 6 and 7 November 2025 and states that:
"There have been recent developments which impact the future operating business model of the company resulting in a need to revisit the assumptions underpinning the going concern assessment. This matter combined with the additional time taken to progress the financial statement audits of [the two other companies] have impacted the provision of audit information in relation to [LBB] financial report audits".
The letter then indicates that, assuming adherence to payment plans to be agreed (and it does not indicate that those plans have to date been agreed) and assuming continuing provision of information required to complete audit testing, the auditors estimate that the dates to which extensions are now sought could be achieved.
Three things may be noted about that letter. The first is that it does not disclose, and Mr Sogani's affidavit does not disclose, the nature of the “recent developments” referred to or how they impact LBB’s operating business model or what is the likely result of revisiting the assumptions underpinning the going concern assessment. Second, that letter assumes adherence to payment plans, where those payment plans have not been agreed, and where Mr Aspinall frankly concedes that previous payment plans have not been fully honoured by LBB. Third, and importantly, and with no criticism of the auditors, this is not the first occasion on which they have estimated a completion date, and history teaches that their previous estimates of completion dates in the audits have been falsified by events.
Mr Aspinall, who (as I noted above appeared for LBB), put balanced and thoughtful submissions, which fairly acknowledged potential difficulties within LBB's position. He acknowledged, in particular, the delays which have occurred to date, and the fact that the auditors’ letter and the affidavit evidence was not able to provide assurance as to LBB’s capacity to complete accounts within the further extended dates that are sought. He pointed to Mr Sogani's recognition of the non-compliance with the relevant obligations.
Mr Sogani's affidavit also refers to other matters relevant to the Court's discretion to extend the time for compliance, referring to correspondence with the Commonwealth Government and the State Government of Tasmania, although the outcome of that correspondence is not clear, and to previous financing provided by the Tasmanian government to LBB on a short term basis. He also noted that the GFG Alliance was actively pursuing arrangements with third parties with the sale, lease or financing of LBB but did not further expand on that proposition, the nature of the relevant arrangements, the extent to which that pursuit had advanced, or whether it was likely to be successfully completed within any reasonable time.
Mr Sogani apologised to the Court on behalf of LBB and also apologised to ASIC for LBB's inability to comply with the Court's orders. It is important to recognise, however, that this is ultimately not a matter for an apology, whether to the Court or to ASIC. The statutory requirements for the filing of accounts exist for reasons which reflect the needs of the community and the needs of other parties dealing with LBB to be able to understand its financial position on an ongoing basis. An apology by LBB for non-compliance leaves the community, and persons dealing with it, no closer to having that adequate understanding of its financial position and draws attention to the ultimate question, whether any further order now made by the Court will bring about compliance with the community's and creditors' needs for such information. I will return to that question below.
Ms Patterson, who appears for ASIC, indicated that ASIC opposed the relief which was sought, by contrast with the several previous occasions on which it had consented to extensions of time for LBB to complete its financial reports. She pointed out that ASIC had brought these proceedings where LBB was already in default in compliance with its obligation to lodge financial reports, extending back to the financial reports for the 2021 financial year. Second, Ms Patterson pointed to the fact that three extensions had already been granted to LBB, by the orders made on 17 July, 21 August and 22 September, each of which extended the dates by which the relevant accounts were obliged to be filed under the Act. Third, Ms Patterson pointed to the fact that the extensions now sought were for substantial periods, as I noted above, extending for financial reports for the 2021, 2022 and 2023 financial years to 6 February 2026 and for the 2024 financial year to 3 April 2026.
Accordingly, I make the following orders:
The Interlocutory Process dated 10 November 2025 be dismissed, and Liberty Bell Bay Pty Ltd pay the Australian Securities and Investments Commission’s costs of and incidental to the Interlocutory Process as agreed or as assessed.
2. Vacate orders 9, 11 and 12 made on 22 September 2025.
3. Note that the matter is now complete, subject to any further application arising from any noncompliance with the Court's orders.
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Fourth, Ms Patterson pointed to the gaps in the evidence to which I referred above, including the absence of information as to the matters which have now delayed the completion of the financial reports, so far as the auditors referred to recent, but largely unidentified developments affecting relevant matters. Ms Patterson in turn submitted, and I accept, that absent information as to those matters, it was not possible to assess whether the time sought by LBB was reasonable and that is significant not only because the time sought by way of extension may be too long, but because it may be too short, so that this fourth extension would not be sufficient to allow those financial reports to be filed, as was the case with the three previous extensions of time for LBB to file those financial reports. As Ms Patterson points out, because the uncertainty as to that matter has the consequence that it is not possible to evaluate whether the orders now sought are likely to be complied with, or will simply be a repeat of earlier extensions that will not bring about compliance.
I raised with Ms Patterson, in the course of submissions, the effect of not granting the extension sought, which likely has the consequence that LBB will contravene the relevant statutory provision and will pass into contravention of the Court’s previous orders, which may or may not expose it to consequential action. It is also possible, of course, that a continuance of non-compliance with the statutory obligations, now combined with non-compliance with the Court's orders, would support an application for a winding up of LBB on the just and equitable ground. I recognise that those consequences are potentially serious, both for LBB, its employees, and the community in which it conducts business.
Having regard to the repeated defaults in compliance with the Court's orders, as extended, and the fact that I cannot have confidence on the evidence that a further extension of the time sought or indeed of a longer period, would bring about compliance with LBB’s statutory obligations, where previous extensions of time have not done so, I am not satisfied that I should grant the further extensions of time that are sought. The statutory obligations themselves impose a time for compliance; that time can be extended in a proper case but it seems to me that a proper case at least requires that the Court have a reasonable degree of satisfaction that the extension will bring about compliance with the statutory requirements, as extended. I cannot have that degree of satisfaction here given the history of this matter, and the evidence as it now stands.
For these reasons, I will not grant the further extensions of time that are sought, and the consequence will likely be that LBB will pass into contravention of the relevant statutory provisions and into contravention of the Court's orders.