RE MARLU TRANSPORT SOLUTIONS PTY LTD (ADMINISTRATORS APPOINTED); EX PARTE ROBERT MICHAEL KIRMAN AND ROBERT CONRY BRAUER AS JOINT AND SEVERAL ADMINISTRATORS OF MARLU TRANSPORT SOLUTIONS PTY LTD [2026] WASC 72 (11 March 2026)

1. A certificate of urgency has also been filed, stating the application is of such an urgent nature that it was required to be listed as soon as possible. For this reason, the matter has been listed before me this afternoon on an urgent basis.
2. In support of the application, the plaintiffs read two affidavits, both filed today:

(a) an affidavit of Robert Michael Kirman, one of the administrators; and

(b) an affidavit of Michael Richard Crommelin, a solicitor employed by the plaintiffs' solicitors.

1. On the basis of these affidavits, I am satisfied that notice of the hearing has been given to the Australian Securities Investments Commission (ASIC), the major secured creditors of the Company, as well as the proposed funder under the Funding Deed. Although notice has been given, I accept, from the evidence before me, that this was only given a short time ago. The proposed funder, who is the major secured creditor of the Company, has confirmed they consent to the orders sought by the plaintiffs. The other secured creditor has indicated it opposes the orders sought in order (2)(b) of the originating process.

1. The factual background to the application can be briefly summarised as follows.
2. Earlier today, 9 February 2026, the first plaintiffs were appointed as administrators of the Company (Administrators).[1] The Company operates a business known as NightHawk Transport, and is a transport logistics company with operations primarily in the Northern Territory. The Company's cash flow is seasonal and is particularly impacted by road closures during the wet season in the Northern Territory, which occurs between November and April each year.[2]
3. The Company is the sole, or primary, transport service provider of essential goods to seven remote communities in the Northern Territory. The Administrators believe that if the Company were to cease operations, government intervention would be required in relation to at least six of these communities, as there is no alternative transport service provider that could immediately commence services.[3]
4. Based on their preliminary investigations, the Administrators have identified that the Company's asset position is as follows:[4]

(a) cash at bank - nil;

(b) trade debtors - an estimated book value of $280,000; and

(c) plant and equipment - a net book value of $10.7 million, although one of the directors has informed the Administrators they believe this has an approximate realisable value of between $4.4 and $5.4 million.

1. The Administrators have also identified the Company has a number of significant creditors. ANZ is the primary secured creditor of the Company and is currently owed approximately $7.3 million.[5]
2. Mr Kirman believes it is necessary to obtain immediate funding for the Company, as the Company does not have any funds to enable its operating costs to be paid.[6] ANZ has agreed to provide funding which will enable the Administrators to continue to operate the Company's business for approximately two weeks, to allow a potential sales process or deed of company arrangement to be arranged.[7]

Should orders be made to relieve the first plaintiff from personal liability?

1. Pursuant to s 443A of the Act, an administrator is personally liable for any debts incurred in the performance or exercise, or purported performance or exercise of their functions and powers as administrators.
2. Pursuant to s 443D of the Act, an administrator is entitled to be indemnified out of the company's property for the debts for which they are liable under s 443A.
3. Where an administrator enters into a loan agreement, the loan and the interest payable on it are not considered to be a debt falling within the terms of s 443A of the Act, and the indemnity that is the subject of s 443D. For this reason, unless an order is made by the court modifying the operation of pt 5.3A of the Act, the administrators will be personally liable for the loan and any interest payable on it.
4. It is well accepted by the courts that s 447A of the Act empowers the court to make orders limiting the personal liability of an administrator where it is satisfied the loan agreement is made for the purpose of allowing the company in administration to trade, or to continue operating for the benefit of creditors.[8]
5. Where these circumstances arise, courts have generally expressed the view that administrators should not be expected to expose themselves to substantial personal liabilities. Where orders are made relieving administrators from personal liabilities, in respect of borrowings, the orders permit the administrators to make commercial decisions about the ongoing operations of the company under administration, by focusing on what is in the best interests of creditors, without any influence on the decision-making arising from concerns as to their personal liability.
6. The factors the court will take into account on an application under s 447A of the Act to vary an administrator's liability were summarised by Gilmour J in Mentha; Re Griffin Coal Mining Company Proprietary Limited (admin appt) and I incorporate those factors into this decision.[9]
7. In this case, the key terms of the Funding Deed are as follows:

(a) The plaintiffs have entered into the Funding Deed in their capacity as administrators of the Company.

(b) Unless orders are made by the court under s 447A of the Act in the terms sought, the Funding Deed will terminate.

(c) ANZ will make funding of $700,000 available to the Administrators, with an initial drawdown of $100,000.

(d) The interest rate on the amount outstanding under the loan is the Bank Bill Swap Yield.

(e) The Funding Deed sets out what the funds can be used for, as well as the provisions for repayment of the loan funds.

1. On the basis of the evidence before me, for the following reasons, I am satisfied it is appropriate to make the orders sought by the plaintiffs in order (1) of the originating process.
2. First, I accept that the purpose of the Funding Deed is to provide working capital for the administration, and to fund the continuing operation of the Company for a short period.
3. Second, without this funding, I accept, on the evidence before me, that the Company will have to immediately cease trading. If this occurs, there is a significant risk that the value of the Company's assets will be severely diminished, as all employees will need to be terminated, which will crystallise significant claims. Other claims, such as lease liabilities, will also crystallise. There will be a loss of corporate knowledge, and it will almost be inevitable that the Company's assets would have to be sold, by way of auction, in a distressed sale environment.[10]
4. Third, on the evidence before me, the Funding Deed is the only option available to the Company to enable it to keep trading in the short term, and in the timeframe that the Administrators have had available to them to find funding. Funding is necessary to enable a marketing campaign and sales process to be undertaken, and/or for a DOCA to be proposed. Given this, I accept the proposed orders are consistent with the interests of creditors, and the objects of pt 5.3A of the Act.

Should directions be given for approval to enter in the Funding Deed?

1. The plaintiffs also seek orders, pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) (sch 2 to the Act) (IPS) that they are justified in entering into and drawing down on the Funding Deed.
2. Pursuant to s 90-15(1) of the IPS, the court may make 'such orders as it thinks fit in relation to the external administration of a company'. Courts have accepted that this power is broad and is at least as extensive as the powers formerly available to it, under s 479(3) and s 511 of the Act.
3. The principles which govern the exercise of this power are well known and can be summarised as follows:

(a) The power to give advice is intended to facilitate external administrators' performance of their functions and should be interpreted widely to give effect to this purpose.

(b) The court may give a direction where it is just and beneficial to do so.

(c) The function of the power is to give an external administrator advice as to the proper course of action to take in an external administration.

(d) The court will not give directions as to a matter of commercial or business judgment. There must be a legal issue of substance or procedure, including an issue of power, propriety or reasonableness.

(e) The power will generally not be used to determine substantive rights and make binding orders, although it is possible to do so if the necessary parties are before the court.

1. The directions sought by the plaintiffs go to the reasonableness, or propriety of the plaintiffs entering into the Funding Deed. For the reasons I have already given, I accept, in the circumstances of this case, it is appropriate to make the direction sought.

1. On the evidence before me, it is clear that creditors and other interested parties have only been given very short notice of this hearing and the application. While I accept that the application, at least in part, is urgent, I accept that the interests of creditors, insofar as the relief is sought in orders (1) and (3) of the originating process, can be adequately preserved through an order permitting creditors to apply to vary or discharge the orders.
2. For those reasons, I am prepared to make orders in terms of order (1), and (3) to (7) of the originating process.

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

[1] Affidavit of Robert Kirman filed 9 February 2026 [3].

[2] Affidavit of Robert Kirman filed 9 February 2026 [10] - [15].

[3] Affidavit of Robert Kirman filed 9 February 2026 [16] - [17], [23] - [26].

[4] Affidavit of Robert Kirman filed 9 February 2026 [20].

[5] Affidavit of Robert Kirman filed 9 February 2026 [22].

[6] Affidavit of Robert Kirman filed 9 February 2026 [29].

[7] Affidavit of Robert Kirman filed 9 February 2026 [42].

[8] Secatore, Re Fletcher Jones and Staff Pty Ltd (admin appt) [2011] FCA 1493.

[9] Mentha, Re Griffin Coal Mining Company Pty Ltd (admin appt) [2010] FCA 1469; (2010) 82 ACSR 142 [30].

[10] Affidavit of Robert Kirman filed 9 February 2026 [40] - [41].