RE DUNDAS MINING PTY LTD (IN LIQ) (SUBJECT TO DEED OF COMPANY ARRANGEMENT); EX PARTE RICHARD SCOTT TUCKER as joint and several administrator of DUNDAS MINING PTY LTD (IN LIQ) [2025] WASC 336 (19 August 2025)

1. I have also had the benefit of a detailed outline of written submissions, filed on 30 July 2025, and oral submissions from counsel who appeared before me this morning.

1. The factual background to this application was largely canvassed in my previous reasons for decision concerning the convening of the creditors' meeting for the Company to consider a proposed deed of company arrangement and to stay the winding up.[2] I do not intend to repeat that summary, and, in these reasons, have adopted the definitions used in those reasons. In addition to those reasons, the relevant factual background to this application can be summarised as follows.
2. On 30 November 2021, the plaintiffs were appointed as joint and several administrators of the Company.[3]
3. On 22 February 2022, the creditors of the Company resolved to place the Company into liquidation and to appoint the plaintiffs as joint and several liquidators of the Company.[4]
4. At the same creditors' meeting, the creditors of Allegiance resolved that Allegiance enter into a DOCA. The plaintiffs were the deed administrators of the Allegiance DOCA.
5. On 29 July 2022, the plaintiffs lodged a statutory report with the Australian Securities and Investments Commission (ASIC) pursuant to s 533 of the Act, which disclosed there had been potential conduct by officers of the Company, including Mr Yang, in breach of the Act. The same day, ASIC requested a more detailed examination of certain directors of the Company by way of a supplementary report (Supplementary Report).[5]
6. On 17 August 2022, the plaintiffs obtained orders from the Federal Court for the production of documents from, as well as orders for the examination of, various individuals and related entities of the Company (Examinations). One of the purposes of these orders was to enable the plaintiffs to obtain information to enable them to draft the Supplementary Report.[6]
7. On 28 April 2025, I made orders granting leave for the plaintiffs to be appointed as voluntary administrators of the Company and for the winding up of the Company to be stayed. This was to enable the plaintiffs to convene a meeting of creditors of the Company to consider and vote on the Company entering into a proposed DOCA with Mr Yang.
8. On 29 April 2025, the plaintiffs appointed themselves as joint and several administrators of the Company.[7]
9. On 23 May 2025, the plaintiffs convened a meeting pursuant to s 439A(1) of the Act and issued a statutory report to the creditors of the Company and its associated corporate entities (Administration Report).[8] In the Administration Report, the plaintiffs expressed the opinion that executing the DOCA was in the best interests of the Company's creditors, as opposed to liquidation. A copy of the Administration Report was lodged with ASIC on 26 May 2025.[9]
10. Between 23 May 2025 and approximately 8.00 pm on 29 May 2025, the plaintiffs and Mr Yang continued to negotiate the form of the proposed DOCA. As a result of these discussions, the version of the DOCA voted on by creditors at the meeting on 30 May 2025 was not identical to the version of the DOCA that had been annexed to the Administration Report.[10]
11. Under the proposed DOCA, Pool A creditors, who are collectively owed a total of $857,910, will receive an estimated 12 cents in the dollar, and Pool B creditors, who collectively are owed $562,891, will receive an estimated five cents in the dollar. Related party creditors will not receive any payment.[11]
12. On 30 May 2025, at the second creditors' meeting, the Company's creditors resolved that the Company enter into the DOCA.[12] The evidence is that the majority of creditors voting at the meeting were related parties. Of the five non-related parties, three Pool B creditors voted against the resolution and two voted for the resolution. The creditors in favour of the resolution were the majority by value. It is clear from the evidence before me that if the non-related parties were the only creditors voting at the meeting, that the plaintiffs would have exercised their discretion in order to pass the resolutions.
13. On 4 June 2025, the plaintiffs were appointed as joint and several administrators of the DOCA.[13] It is a condition precedent of the DOCA that the winding up of the Company be terminated (cl 9.1.5).[14]
14. The plaintiffs say that the winding up of the Company should be terminated so that the DOCA can effectuate and the external administration of the Company can be finalised.
15. On 26 June 2025, the plaintiffs advised ASIC that as they no longer intended to conduct the Examinations and were seeking to terminate the liquidation of the Company, they did not intend to lodge the Supplementary Report.[15] As at 31 July 2025, the plaintiffs have not received any response from ASIC.[16]

1. I am satisfied on the evidence before me that ASIC was served with the application on 7 July 2025 in accordance with r 2.9 of the Supreme Court (Corporations) (WA) Rules 2004.[17] ASIC has not given notice of its intention to appear at the hearing and did not appear today.
2. I am also satisfied that the Company's creditors, contributories (who are all creditors of the Company),[18] and the liquidators (being the plaintiffs) have been served with the application. No one appeared today to oppose the application or sought to be heard on the terms of the orders sought.[19]

Should the winding up of the Company be terminated?

(a) at any time during the winding up of the company, the court may, on application, make an order terminating the winding up on a day specified in the order;[20] and

(b) such an application may be made by the liquidator of the company.[21]

1. The power of the court to make an order under s 482 of the Act is a discretionary power. The onus is on the applicant to make out a positive case for the termination or stay of the winding up.
2. While it is not necessary for the court to make findings as to special reasons for the termination of the winding up, there must be a valid reason for the discretion to be exercised in favour of an applicant.
3. In considering the application, the court will take into account a number of factors, including:

(a) the attitude and interests of creditors, including any future creditors;

(b) the interests of the liquidator and whether the proposal will include payment of their costs;

(c) the company's current trading position and general solvency;

(d) any explanation if there has been non-compliance by directors of their statutory duties; and

(e) the circumstances which led to the winding up of the company.

1. Broadly speaking, on an application to terminate the winding up, there are two broad considerations that must be satisfied:

(a) the state of affairs that required the company to be wound up no longer exist; and

(b) it would be reasonable to entrust the affairs of the company once again to the directors of the company under whose management it previously failed.

1. In this case, for the following reasons I am satisfied that it is appropriate to make the orders sought by the plaintiffs.
2. First, on the evidence that has been filed, I am satisfied that:

(a) while there are differences between the draft DOCA that was annexed to the Administrator's Report that was sent to creditors and ASIC, and the DOCA that was ultimately voted on and entered into, the differences are not material, and importantly, do not impact on the return to creditors;

(b) the plaintiffs do not have funding to pursue the Examinations or fund any potential proceedings against the directors in relation to possible claims for breaches of statutory duties;

(c) there was a reasonable basis for the plaintiffs' view that the certainty of a return to creditors under the DOCA outweighed the possibility of a greater return to creditors on a winding up, and to make a recommendation to creditors to this effect; and

(d) the liquidators will be paid an agreed amount for their costs under the DOCA and consent to the application.

1. Second and importantly, no creditor, contributory, or ASIC has appeared at the hearing today to oppose the orders sought.
2. Third, on the termination of the liquidation and effectuation of the DOCA, control of the Company will revert to Mr Yang. He has explained the purpose for which he intends to use the Company and has undertaken to make an initial cash payment to the company to facilitate this. There is no evidence before the court from which I could infer that the Company will be insolvent if orders are made in the terms sought.
3. In considering the two broad questions for the court, the Company was wound up as a term of the Allegiance DOCA, pursuant to which Mallee Resources acquired the Company's shares in Allegiance. The consideration for the transfer of these shares was paid, although as a result of subsequent events, the funds that had been contemplated would be available to fund the liquidation are no longer available and all relevant funds have been exhausted. These matters were outside the control of both the plaintiffs and the former officers of the Company. On this basis, I accept that the state of affairs which led to the appointment of the liquidators no longer exists.
4. In relation to the second question, while questions have been raised about Mr Yang's conduct as a director of the Company, I accept these claims have not been tested in court and that he is not disqualified from acting as a director. ASIC is aware of these questions and has not appeared to oppose the application. In his affidavit, Mr Yang has undertaken to engage professional accountants to maintain the books and records of the Company and intends to use the Company for different purposes. In my view, the fact that control of the Company will revert to its former director is not a basis on which the application should be refused.
5. In this case, the resolution to enter into the DOCA and to approve the remuneration of the plaintiffs was passed by a significant majority of creditors in both number and value. Relevantly, I note that there are no secured creditors of the Company and that the DOCA proposes that there be no payment to related party creditors. Before passing the resolution, the creditors received a detailed report from the plaintiffs which clearly set out the options available to them. Of the non-related party creditors that voted at the meeting, a majority by value voted in favour of the DOCA. For these reasons, I do not consider that the concerns expressed by Brereton J in Q Group Ltd (in liq) [22] arise.

1. On the evidence before me and weighing all of the relevant factors in the balance, I consider it is appropriate to order that the winding up of the Company be terminated.[23]

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

[1] Affidavit of Richard Scott Tucker filed 2 July 2025 [18].

[2] Re Dundas Mining Pty Ltd (in liq); ex parte Bumbak [2025] WASC 157.

[3] Affidavit of Richard Scott Tucker filed 2 July 2025 [11.1].

[4] Affidavit of Richard Scott Tucker filed 2 July 2025 [11.2].

[5] Affidavit of Richard Scott Tucker filed 2 July 2025 [21] - [24], 'RST-9'.

[6] Affidavit of Richard Scott Tucker filed 2 July 2025 [24].

[7] Affidavit of Richard Scott Tucker filed 2 July 2025 [11.3].

[8] Affidavit of Richard Scott Tucker filed 2 July 2025, 'RST-17'.

[9] Affidavit of Richard Scott Tucker filed 2 July 2025 [51] - [52].

[10] Affidavit of Richard Scott Tucker filed 2 July 2025 [59] - [61].

[11] Affidavit of Richard Scott Tucker filed 2 July 2025, 'RST-6'.

[12] Affidavit of Richard Scott Tucker filed 2 July 2025 [63] - [64], 'RST-19'.

[13] Affidavit of Richard Scott Tucker filed 2 July 2025 [11.4].

[14] Affidavit of Richard Scott Tucker filed 2 July 2025, 'RST-6', cl 9.1.5 (p 59).

[15] Affidavit of Richard Scott Tucker filed 2 July 2025 [24], 'RST-10'.

[16] Third affidavit of Richard Scott Tucker filed 31 July 2025 [8.2].

[17] Affidavit of Stephanie Alexandra Ford filed 21 July 2025, 'SAF-3'.

[18] Affidavit of Richard Scott Tucker filed 2 July 2025, 'RST-1' (p 27).

[19] Affidavit of Stephanie Alexandra Ford filed 21 July 2025 [6] - [9]; Second affidavit of Amelia Richmond-Scott filed 29 July 2025 [5]; Third affidavit of Amelia Richmond-Scott filed 31 July 2025 [5]; Third affidavit of Richard Scott Tucker filed 31 July 2025 [8.1].

[20] Corporations Act 2001 (Cth) s 482(1).

[21] Corporations Act 2001 (Cth) s 482(1A).

[22] Re Q Group Ltd (in liq) [2014] NSWSC 1428; (2014) 104 ACSR 470.

[23] At the conclusion of the hearing, I made orders in terms of Annexure 'A'.