Queensland Nickel Sales Pty Ltd v Park

Australia Bay Seafoods Pty Ltd v Northern Territory of Australia (2022) 295 FCR 443; [2022] FCAFC 180

Carr v Finance Corp of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246

Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 268 CLR 524; [2019] HCA 20

Coleman v Power (2004) 220 CLR 1; [2004] HCA 39

Cubillo v Commonwealth of Australia (2001) 112 FCR 455; [2001] FCA 1213

Deputy Commissioner of Taxation v Miraki [2022] FCAFC 96

Georges v Seaborn International (Trustee); Re Sonray Capital Market Pty Ltd (in liq) [2012] FCA 294

In the matter of Hawden Property Group Pty Ltd (in liq) [2018] NSWSC 481

Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564; [2000] FCA 1572

Licul v Corney [1976] HCA 6; (1976) 180 CLR 213

Monash Health v Singh (2023) 327 IR 196; [2023] FCAFC 166

Mount Bruce Mining v Wright Prospecting (2015) 256 CLR 104; [2015] HCA 37

One T Development Pty Ltd v Krejci [2023] NSWCA 120

Queensland Nickel Sales Pty Ltd v Park in his capacity as liquidator of Queensland Nickel Pty Ltd (in liq) (2023) 299 FCR 169; [2023] FCAFC 150

Rawson Finances Pty Ltd v DCT [2010] FCAFC 139

Sino Group International Ltd v Toddler Kindy Gymabroo Pty Ltd (in liq) (final orders) [2023] FCAFC 119

Sons of Gwalia Ltd v Margaretic (2007) 231 CLR 160; [2007] HCA 1

Telstra Corp Ltd v Treloar (2000) 102 FCR 595; [2000] FCA 1170

1. On 9 August 2024, the primary judge made an order that the Liquidators of Queensland Nickel Pty Ltd (in liquidation) (QNI) are justified in paying an amount from certain trust assets to Prony Resources New Caledonia (formerly Vale Nouvelle-Calédonie SAS) in the liquidation of QNI (Payment Order): Park, in the matter of Queensland Nickel Pty Ltd (in liq) [2024] FCA 912 (Prony Judgment or PJ).
2. Subsequently, on 25 October 2024, the primary judge relevantly made an order that, subject to a surplus of trust assets being available, the plaintiffs would be justified in paying interest pursuant to s 563B of the Corporations Act 2001 (Cth) (Act) to a certain list of creditors, which included Prony (Interest Order): Park, in the matter of Queensland Nickel Pty Ltd (in liq) (Statutory Interest) [2024] FCA 1300 (Statutory Interest Judgment or SIJ).
3. By an application for an extension of time and leave to appeal, and two notices of appeal, Queensland Nickel Sales Pty Ltd, QNI Resources Pty Ltd and QNI Metals Pty Ltd (Palmer Parties), who were the first, second and third interested persons respectively below, seek to challenge the Payment Order and the Interest Order (together, Orders).
4. Prony appeared at the hearing before the primary judge on 9 August 2024 and made submissions relevant to the Interest Order. Prony is the third respondent in the proceedings before this Court and actively participated in the hearing.
5. On 12 February 2025, the Liquidators, with the consent of the Palmer Parties and Prony, were excused from participating in the proceedings before this Court and submitted to any order that the Court may make, save as to costs.
6. Although the Palmer Parties have filed an application for an extension of time and leave to appeal from the Payment Order, they have not sought leave to appeal the Interest Order. Their primary position is that leave to appeal neither of the Orders is required, as the legal effect of the Orders is to determine substantive rights in respect of the construction of a settlement deed and the orders made necessarily followed from the primary judge's determinations and findings.

[27] ...... the better view is that directions under s 511 or s 63 operate to offer protection for the liquidator or trustee who complies with such directions, but do not affect or in any way finally determine the substantive rights of creditors and beneficiaries: Re G.B. Nathan & Co Pty Ltd (In liq) (1991) 24 NSWLR 674 at 677-679 per McLelland CJ in Eq; Meadow Springs Fairway Resort Ltd (in liq) v Balanced Securities Ltd (2007) 25 ACLC 1,433 at [48] per French J; and Primary Securities Ltd (recs & mgrs. apptd) (in liq) v Saker [2010] FCA 1471; (2010) 191 FCR 277. ... The decision is therefore interlocutory and leave to appeal is required.

[24] The Palmer Parties resisted the order being made on the basis that there needed to be a hearing which would involve the proper construction of the Settlement Deed. By the Settlement Deed, the supply agreement was terminated and, subject to Prony being able to prove its debt in the liquidation of QNI, Prony released and discharged the plaintiffs from claims arising out of, in relation to or in connection with that agreement.

[25] The Palmer Parties submitted that the Settlement Deed resulted in a "new charter of rights" between the plaintiffs and Prony. Counsel for the Palmer Parties relied upon various clauses of the Deed to support this submission. The Palmer Parties further submitted that the Settlement Deed created a "new" debt, that "new" debt replacing the original debt which had arisen under the supply agreement. They submitted that, as the Settlement Deed was entered into after the replacement of QNI as trustee of the trust, the new debt had been incurred at that time as well, with the consequence that the plaintiffs cannot have recourse to the Trust Assets in paying that debt. In support of this contention, they cited Hillam v Iacullo (2015) 90 NSWLR 422; [2015] NSWCA 196 and Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 268 CLR 524; [2019] HCA 20.

(1982) 149 CLR 147

(2007) 231 CLR 160

(2000) 102 FCR 595

(2015) 90 NSWLR 422

(1981) 147 CLR 246

(2001) 112 FCR 455

(1991) 24 NSWLR 674

(2010) 191 FCR 277

(2022) 295 FCR 443

(2019) 268 CLR 524

(2004) 220 CLR 1

(1936) 55 CLR 499

(2000) 104 FCR 564

(1976) 180 CLR 213

(2023) 327 IR 196

(2015) 256 CLR 104

(2003) 133 FCR 506

(2023) 299 FCR 169

(1997) 73 FCR 241

(2005) 226 CLR 1