RE EAST ROCKINGHAM RRF HOLD CO 2 PTY LTD (ADMINISTRATORS APPOINTED) (ACN 623 897 955) & ORS; EX PARTE JOHN BUMBAK AND RICHARD TUCKER AS ADMINISTRATORS OF EAST ROCKINGHAM RRF HOLD CO 2 PTY LTD (ADMINISTRATORS APPOINTED) (ACN 623 897 955) & ORS [No 2] [2025] WASC 279 (10 July 2025)

Should a further extension of time to convene the second creditors' meeting be granted?

1. The plaintiffs' application for a further extension of time is brought pursuant to s 439A(6) of the Corporations Act 2001 (Cth) (Act), or in the alternative, s 447A of the Act. While there is some debate as to whether the court has power to grant a further extension of a convening period under s 439A(6),[2] it is widely accepted that a further extension can be granted under s 447A of the Act.[3]
2. There are well known legal principles governing an extension of time under both s 439A(6) and s 447A applications.
3. In considering whether to grant the further extension, the court is required to consider and take into account the objects and scheme of pt 5.3A of the Act, as set out in s 435A.
4. This requires the court, in reaching its decision, to maintain an appropriate balance between an expectation that an external administration will be undertaken in a relatively speedy and summary manner, with a need to ensure that an administration is not concluded without consideration of sensible and constructive options directed towards maximising returns for creditors and any possible return for shareholders.[4] The court is also required to take into account any possible detriment to third parties, including the suspension of rights and remedies of secured creditors, lessors, and others.[5]
5. The court will generally exercise its discretion to extend the convening period where one or more of the established categories are satisfied, where there is no evidence of material prejudice to those affected by the extension, and the court is satisfied that the estimate of time required has a reasonable basis.[6]
6. Mr Bumbak's affidavits contain evidence of the progress that has been made in the administration and receivership of the Companies. This includes:[7]

(a) stabilising access to and control of the site of the Companies' project to develop a waste to energy facility in the Rockingham Industry Zone in East Rockingham (Project);

(b) the execution of an EPC contract to facilitate the completion of the Project; and

(c) the commencement of a structured marketing campaign and sale process.

1. Mr Bumbak has drawn the court's attention to the material changes in circumstances that have occurred in the receivership, the consequence of which is that the intended sale or recapitalisation process of the Companies has not occurred within the timeframe that was originally estimated.[8] These changes include the following:

(a) Acciona Financiacion Filiales Australia Pty Ltd (AFFA) has purchased all of the senior secured debt under the Senior Lenders Facility Agreement on 27 December 2024;[9]

(b) following this purchase, there was a change of receivership on 27 December 2024 with AFFA's appointment of Adam Colley, Martin Ford, Melissa Humann, and Stephen Longley of PWC as receivers of the Companies (PMC Receivers);[10]

(c) as a consequence of AFFA's acquisition of the senior debt, NAB retired as agent under the Senior Syndicated Facility Agreement and as security trustee under the Security Trust Deed, and was replaced as agent by CSC Agency Australia Pty Ltd and security trustee as CSC Nominees Australia Pty Ltd. Deeds of novation and assignment were entered into in respect of the various financial documents of the Companies to give effect to these changes;[11]

(d) on 22 January 2025, the PWC Receivers were replaced by Jeremy Nipps, Thomas Birch, Catherine Conneely, and Barry Wight of Cor Cordis (Receivers);[12]

(e) on 14 March 2025, these receivers caused Project Co to enter into a new EPC contract to facilitate the completion of the Project. This contract was subsequently amended on 4 June 2025. The current estimated completion date of the Project is late June 2026;[13]

(f) on 16 April 2025, the Australian Competition & Consumer Commission (ACCC) commenced a public review in relation to Acciona's proposed acquisition of the Project. The provisional date for announcement of the ACCC's findings is 26 June 2025;[14]

(g) the Receivers engaged Moelis Australia Advisory Pty Ltd as financial advisors to assist them in their multi-stage sale and recapitalisation process that commenced in May 2025 and is likely to extend into the third quarter of 2025;[15] and

(h) there have been various ongoing issues with contractual counterparties of Project Co and the Receivers, including the KVI in its capacity as a former EPC contractor on the Project, with EROC Energy Pty Ltd, the operator of the waste-to-energy facility that is the subject to the Project, as well as certain other counterparties.[16]

1. For the following reasons, I am satisfied that it is appropriate in the circumstances of this case to grant the requested application for an extension of the convening period until 30 September 2025.
2. First, Mr Bumbak's evidence, which I accept, is that the recent changes in circumstances relating to the administration of the Companies and the receivership have delayed the sale or recapitalisation process that was contemplated by the Receivers.
3. Second, the administration continues to be significantly complex for a number of reasons. These include the technical complexity of the Project, the incomplete construction of the Project's facility, as well as the significant legal claims that have been made to date and are yet to be resolved.
4. Third, a further extension to the convening period is required to enable the sale of the Companies, or to enable a deed of company arrangement (DOCA) to be proposed and negotiated. Both of these matters are consistent with the purposes and objects of pt 5.3A of the Act, as set out in s 435A.
5. Fourth, the first plaintiffs' opinion is that a further extension of time is required for a period of at least three months. On the evidence before me, I am satisfied that there is a reasonable basis for this estimate.
6. Finally, and importantly, no creditor or any other relevant party has appeared before me today or raised any opposition to the proposed extension. I am satisfied on all the evidence before me that the return to creditors is likely to be significantly enhanced if a further extension is granted. In my view, the potential benefit of the extension outweighs any possible prejudice to creditors and is in the best interests of creditors as a whole.

Should confidentiality orders be made over the Confidential Affidavit?

1. The first plaintiffs also seek confidentiality orders to be made over the Confidential Affidavit, pursuant to O 67B r 5(3) of the Rules of the Supreme Court 1971 (WA).
2. The first plaintiffs submit that the contents of the Confidential Affidavit are commercially sensitive and confidential. The Receivers have advised the first plaintiffs that publication of contents of this affidavit could potentially affect the planned sale or recapitalisation process.
3. Having considered the Confidential Affidavit, as well as the affidavit of Mr Bumbak sworn in support of the confidentiality orders, I am satisfied, in the circumstances of this case, that it is appropriate to make the confidentiality orders sort.

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

[1] Re John Bumbak and Richard Tucker as administrators of East Rockingham RRF Hold Co 2 Pty Ltd (administrators appointed) (ACN 623 897 955) & Ors [2024] WASC 458.

[2] Re Lombe; Australian Discount Retail Pty Ltd [2009] NSWSC 110 [29] - [31].

[3] Re Lombe; Australian Discount Retail Pty Ltd [2009] NSWSC 110 [32].

[4] Tucker (Administrator) v Bolten (Trustee), in the matter of Quintis Leasing Pty Ltd (Administrators Appointed) (No 2) [2024] FCA 46 [54], citing in Diamond Press Australia Limited [2001] NSWSC 313 [10].

[5] Shaw and Albarran (Joint and Several Administrators of Home Art Building Group Pty Ltd) v Home Art Building Group Pty Ltd (Administrators Appointed) [2016] WASC 274 [18].

[6] Mighty River International Limited v Hughes [2018] HCA 38 [73].

[7] Third affidavit of John Allan Bumbak filed 13 June 2025 [16], [22], [24], [37], [32], [37(d)], JAB-82, JAB-86, JAB-69; First affidavit of John Allan Bumbak filed 19 November 2024, JAB-1.

[8] Plaintiffs' submissions filed 13 June 2025 [15].

[9] Third affidavit of John Allan Bumbak filed 13 June 2025 [18].

[10] Third affidavit of John Allan Bumbak filed 13 June 2025 [19].

[11] Third affidavit of John Allan Bumbak filed 13 June 2025 [32(b) - (c)].

[12] Third affidavit of John Allan Bumbak filed 13 June 2025 [20].

[13] Third affidavit of John Allan Bumbak filed 13 June 2025 [32(d) - (f)].

[14] Third affidavit of John Allan Bumbak filed 13 June 2025 [27], JAB-72, JAB-73.

[15] Plaintiffs' submissions filed 13 June 2025 [16 (h - i)].

[16] Third affidavit of John Allan Bumbak filed 13 June 2025 [28] - [29], [33] - [35].