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[2024] FCA 184
Federal Court of Australia
2024-03-05
Collier J, Richard J
Original judgment source is linked above.
Counsel for the Applicant: Mr C Johnstone
Solicitor for the Applicant: White & Case
Counsel for the First and Second Respondents: Mr S Maiden KC with Ms B Chen
Solicitor for the First and Second Respondents: Gilbert + Tobin
ORDERS QUD 541 of 2023 IN THE MATTER OF IG POWER (CALLIDE) LTD (ADMINISTRATORS APPOINTED) ACN 082 413 885 BETWEEN: SEV.EN GAMMA A.S. Plaintiff
AND: IG POWER (CALLIDE) LTD (ADMINISTRATORS APPOINTED) ACN 082 413 885 First Defendant
RICHARD J HUGHES IN HIS CAPACITY AS JOINT AND SEVERAL ADMINISTRATOR OF IG POWER (CALLIDE) PTY LTD (ADMINISTRATORS APPOINTED) ACN 082 413 885 Second Defendant
GRANT D SPARKS IN HIS CAPACITY AS JOINT AND SEVERAL ADMINISTRATOR OF IG POWER (CALLIDE) PTY LTD (ADMINISTRATORS APPOINTED) ACN 082 413 885 Third Defendant
BETWEEN: JOHN RICHARD PARK AND BENJAMIN PETER CAMPBELL IN THEIR CAPACITY AS JOINT AND SEVERAL SPECIAL PURPOSE ADMINISTRATORS OF IG POWER (CALLIDE) PTY LTD (ADMINISTRATORS APPOINTED) (SPECIAL PURPOSE ADMINISTRATORS APPOINTED) ACN 082 413 885 Applicant
AND: RICHARD J HUGHES IN HIS CAPACITY AS JOINT AND SEVERAL ADMINISTRATOR OF IG POWER (CALLIDE) PTY LTD (ADMINISTRATORS APPOINTED) (SPECIAL PURPOSE ADMINISTRATORS APPOINTED) ACN 082 413 885 First Respondent
GRANT D SPARKS IN HIS CAPACITY AS JOINT AND SEVERAL ADMINISTRATOR OF IG POWER (CALLIDE) PTY LTD (ADMINISTRATORS APPOINTED) (SPECIAL PURPOSE ADMINISTRATORS APPOINTED) ACN 082 413 885 Second Respondent
order made by: COLLIER J DATE OF ORDER: 5 March 2024
Introduction 1 In Sev.en Gamma a.s. v IG Power (Callide) Pty Ltd (Administrators Appointed) [2024] FCA 30 (primary judgment) on 29 January 2024, Derrington J made orders in respect of the corporation IG Power (Callide) Ltd (administrators appointed) (ACN 082 413 885) (IGPC). Materially, those orders included the appointment of John Richard Park and Benjamin Peter Campbell of FTI Consulting as Special Purpose Administrators to IGPC. General Purpose Administrators had been appointed to IGPC on 24 March 2023. 2 On 19 February 2024 the Special Purpose Administrators filed the interlocutory application now before the Court. The Special Purpose Administrators sought the following orders: 1. Pursuant to section 447A of the Corporations Act and/or section 90-15 of the IPS, that the Applicants on their own behalf as the joint and several special purpose administrators of IG Power (Callide) Ltd (administrators appointed) (special purpose administrators appointed) (ACN 082 413 885) (the Company), and on behalf of the Company, be justified in entering into a Deed of Funding and Indemnity in the same, or substantially the same, form as the document exhibited as "Confidential Exhibit JRP-3" to the Park Affidavit (Deed of Funding and Indemnity). 2. Pursuant to section 37AF of the Federal Court of Australia Act 1976 (Cth) that the Park Affidavit and exhibit JRP-3 be redacted to supress the funding limits contained in the Deed of Funding and Indemnity until further order of the Court. 3. Pursuant to sections 60-10(1)(c) and 60-10(3)(a) of the Insolvency Practice Schedule that, subject to further order, the Special Purpose Administrators' remuneration charged in conducting their "Investigations" as defined in the Deed of Funding and Indemnity, be: a. determined on a time-cost basis in accordance with the schedule of rates contained in Exhibit JRP-4 exhibited to the affidavit of John Richard Park affirmed 19 February 2024; and b. approved up to the "Funding Limit" as defined in the Deed of Funding and Indemnity. 4. An order that in respect of Order 3 above, compliance with rule 9.2 of the Federal Court (Corporations) Rules 2000 be dispensed with. 5. Such further or other orders that the Court considers necessary. 3 At the hearing before me both the Special Purpose Administrators and the General Purpose Administrators were represented by Counsel. Although the General Purpose Administrators did not oppose the draft orders sought by the Special Purpose Administrators, the General Purpose Administrators sought that qualifications be made to those draft orders. The General Purpose Administrators sought that orders be made in the following terms: 1. Pursuant to section 447A of the Corporations Act and/or section 90-15 of the IPS, and subject to the terms of the order made in paragraph 2 below, that the Applicants on their own behalf as the joint and several special purpose administrators of IG Power (Callide) Ltd (administrators appointed) (special purpose administrators appointed) (ACN 082 413 885) (the Company), and on behalf of the Company, be justified in entering into a Deed of Funding and Indemnity in the same, or substantially the same, form as the document exhibited as "Confidential Exhibit JRP-3" to the Park Affidavit (Deed of Funding and Indemnity). 2. If any document or information satisfies any of the criteria set out in paragraph 3 of these orders, the Applicants must not disclose that document or information to the Funder (as defined in the Deed of Funding and Indemnity) without first consulting with the voluntary administrators of the Company in good faith as to whether the disclosure is of a kind that ought not be made having regard to the terms of clause 7.3(c) of the Deed of Funding and Indemnity and the interests of the Company and its creditors as a whole. 3. For the purposes of paragraph 2 of this order, the criteria are: a. the document or information is confidential to the Company; and b. the Company or any other person has a claim to privilege over the document or information. 4. Pursuant to section 37AF of the Federal Court of Australia Act 1976 (Cth) that the Park Affidavit and exhibit JRP-3 be redacted to supress the funding limits contained in the Deed of Funding and Indemnity until further order of the Court. 5. Subject to paragraph 6 of this order, Pursuant pursuant to sections 60-10(1)(c) and 60-10(3)(a) of the Insolvency Practice Schedule that, subject to further order, the Special Purpose Administrators' remuneration charged in conducting their "Investigations" as defined in the Deed of Funding and Indemnity, be: a. determined on a time-cost basis in accordance with the schedule of rates contained in Exhibit JRP-4 exhibited to the affidavit of John Richard Park affirmed 19 February 2024; and b. approved up to the "Funding Limit" as defined in the Deed of Funding and Indemnity. 6. Pursuant to s 90-15(1) of the Insolvency Practice Schedule: a. before any payment is made under cl 6.1(b)(ii) or 6.1(d) of the Deed of Funding and Indemnity (the Funder Payment), the Applicants must provide a report to the Company's creditors which complies with s 70-45(3) of the Insolvency Practice rules (Corporations); and b. any creditor of the Company may, within 14 days after receipt of the report under paragraph 6(a) above, apply in this proceeding for a re-determination of any part of the remuneration the subject of the Funder Payment; and c. the determination made under paragraph 5 of this order is subject to any further re-determination made in accordance with this paragraph. 7. Alternatively to paragraph 6, an order pursuant to s 447A of the Act to the effect that Part 5.3A of the Act is to operate in relation to the Company as if it included a section to the effect set out at paragraph 6 above. 8. An order that in respect of Order 5 above, compliance with rule 9.2 of the Federal Court (Corporations) Rules 2000 be dispensed with. 9. Such further or other orders that the Court considers necessary. (tracking as per original)
Background 4 Relevant background facts were summarised by Derrington J in the primary judgment as follows: 1 The Callide Power Station, located at Biloela, is one of Queensland's major power stations. It is a coal-powered electricity generator comprised of two power plants, Callide B and Callide C, each of which has two generating units. At Callide C, those units are referred to as units C3 and C4. On 25 May 2021, the turbine of unit C4 suffered a kinetic disintegration that resulted in an explosion. Following that, unit C4 went offline and ceased exporting power to the grid. It has remained offline since. About 18 months later, on 31 October 2022, part of the unit C3 cooling tower suffered a significant structural failure. As a result, it went offline as well. It also has not yet resumed electricity production. 2 Callide C is operated by an unincorporated joint venture between the first defendant, IG Power (Callide) Ltd (IGPC), and Callide Energy Pty Ltd (CEPL). CEPL is wholly owned by CS Energy Limited (CSEL), which is ultimately owned by the Queensland Government. Pursuant to a Joint Venture Agreement dated 11 May 1998 (as amended over time), IGPC and CEPL each had a 50% interest in the business operations. Needless to say, the cessation of the two power units has caused substantial loss to both. 5 The appointment of the Special Purpose Administrators was sought by Sev.en Gamma a.s. (Sev.en) by way of originating application filed on 29 November 2023. Sev.en sought the appointment pursuant to s 447A of the Corporations Act 2001 (Cth) (the Corporations Act) for the special purpose of conducting investigations into the cause or causes of the two catastrophic incidents at the Callide C power station. 6 The Special Purpose Administrators were appointed on 29 January 2024 solely for the purpose of carrying out the following functions: 1. Conduct investigations into the cause or causes of the two catastrophic incidents at the Callide C power station, specifically, the explosion of the unit C4 turbine on 25 May 2021 and the partial collapse of the unit C3 cooling tower on or around 31 October 2022 (the Incidents), and any claims available to the first defendant against any party arising out of, relating to or in any way connected with the Incidents. 2. Prepare, make an application for, and conduct with the assistance of legal representatives of their choosing, such examinations under ss 596A and 596B of the Act and obtain such orders for production pursuant to s 579(9) of the Act as are necessary or desirable for the purposes of the investigations referred to herein. 3. Engage a suitably qualified technical expert or experts to assess the cause or causes of the Incidents to the extent that it is necessary or desirable to do so for the purposes of the investigations referred to herein. 4. Give consideration to the claims available to the first defendant or its administrators in relation to the Incidents arising from the investigations and examinations referred to in this Annexure, and from examination of the books and records of the first defendant, including obtaining and considering legal advice in respect of any such claims. 5. Commence and prosecute any legal proceedings in the name of the first defendant or as administrator of the first defendant arising from the investigations and examinations referred to herein, and from the examination of the books and records of the first defendant. 6. Commence and/or defend any legal proceedings in the name of the first defendant or as administrator of the first defendant that concern a third party seeking to acquire IGPC's Interest in the joint venture, as that term is defined in the Joint Venture Agreement dated 11 May 1998. 7. Take possession of such books and records of the first defendant as the Special Purpose Administrators deem necessary for the purpose of the investigations and examinations referred to herein, subject to the proviso that the Special Purpose Administrators will provide the second and third defendants all reasonable access to those books and records and the second and third defendants are permitted to make such copies of them as they see fit. 8. Undertake such further or other matters in relation to the administration and affairs of the first defendant as the Court considers appropriate and so orders. This includes, for the avoidance of doubt, making an application to extend the administration of the first defendant. 9. Make an application pursuant to ss 442A and/or 447A of the Act, and/or s 90-15 of Sch 2 to the Act, that they be justified in executing, on their own behalf as Special Purpose Administrators and on behalf of the first defendant, a funding and indemnity deed. (Annexure A of Orders of Derrington J dated 29 January 2024). 7 Relevantly, Item 9 of Annexure A provides that the Special Purpose Administrators may make an application before the Court seeking that they be justified in executing a funding and indemnity deed. The interlocutory application presently before the Court is an application of this nature. 8 Order 6 of his Honour's Orders dated 29 January 2024 provided that the Special Purpose Administrators were not entitled to any indemnification out of IGPC's property. 9 In the primary judgment, Derrington J noted that Sev.en proposed funding the costs of the Special Purpose Administrators: 177 On the other hand, there is no risk that IGPC will be burdened with additional costs or that the appointment of special purpose administrators will negatively impact its creditors: see Shangri-La Construction Pty Ltd v GVE Hampton Pty Ltd (in liq) (2021) 152 ACSR 19, 34 [87]. Sev.en is prepared to fund the investigation and any recovery action on the condition that the special purpose administrators are appointed. It has produced a funding agreement, which it is prepared to enter with the special purpose administrators as is appropriate. It shows that the special purpose administrators' costs will be met by Sev.en so as to avoid any duplication of costs with the administrators. The funding will be available for the remuneration of the special purpose administrators and for their legal expenses. If the initial limit of funds is reached, a request can be made for additional funding and the parties will consult in good faith, and the same applies in relation to subsequent limits. The actual amounts that will be payable have been redacted, but there is nothing sinister in that. That is necessarily confidential information. It can be assumed that the amounts will be adequate, given Sev.en's commercial interest in the matter. The special purpose administrators' obligation to repay Sev.en is limited to the recoveries received by IGPC in connection with the investigation, subsequent proceedings, or any appeal. 10 The relationship between Sev.en and IGPC was relevantly summarised by his Honour in the primary judgment as: 3 The plaintiff, Sev.en Gamma a.s. (which, for convenience, will be referred to as Sev.en), has an economic interest in IGPC, albeit one derived from sequential shareholdings through a number of companies. Broadly speaking, it has a 25% economic interest in IGPC. It also has an economic interest as a creditor of one of its subsidiaries which is, in turn, a substantial creditor of IGPC. There was no dispute between the parties that Sev.en held these interests, though a question was raised as to whether they were sufficient to accord Sev.en standing to make the present application.
Deed of Funding 11 The Special Purpose Administrators sought orders that they be justified in entering into a Deed of Funding and Indemnity (Deed) in the same, or substantially the same, form as "Confidential Exhibit JRP-3" to the Park Affidavit. The application is brought pursuant to s 447A of the Corporations Act which empowers the Court to make such order as it thinks appropriate about how Part 5.3A of the Corporations Act is to operate in relation to a particular company. 12 Relevantly, the Deed contained the following terms: 1. Interpretation 1.1 Definitions …… Funder means Sev.en Gamma a.s. and includes any nominee of that entity. ……. Recovery Proceeding means any proceeding commenced by the Special Purpose Administrators in accordance with this Deed as a result of the Investigations. ……. 5. Recovery Proceedings 5.1 Commencement of Recovery Proceedings (a) Once the Special Purpose Administrators form the view that the Investigations are sufficiently progressed and/or completed, the Special Purpose Administrators and Funder will consult in good faith concerning the availability and commencement of any Recovery Proceeding and the funding that is required in respect of the commencement of any Recovery Proceeding. (b) The Funder has no liability under this Deed (including in respect of any Advances previously provided under this Deed or to provide any further funding) to the Special Purpose Administrators in respect of, the commencement of a Recovery Proceeding, unless the Special Purpose Administrators obtains the written agreement of the Funder (in its absolute discretion) to the commencement of the Recovery Proceeding. (c) If such consent is provided, the parties agree to negotiate in good faith to agree a Funding Limit and further funding agreement for the Recovery Proceeding. (d) For the avoidance of doubt, the Special Purpose Administrators are under no obligation to commence any Recovery Proceeding unless they determine that it is appropriate to do so in their absolute discretion. 6. Repayment and Uplift 6.1 Repayment of Amount Owing (a) In respect of any Investigations or Recovery Proceedings, and subject to clauses 6.2 (Limited recourse) and 11 (Limitation of Special Purpose Administrators' liability), the Amount Owing shall be repayable in accordance with this clause 6.1. (b) Subject to clause 3.3 (Payment of Remuneration and Expenses) above and clause 6.3 below (Uplift application) and any inconsistent law, any amount received by the Special Purpose Administrators from a defendant or respondent (whether as a result of judgment or settlement) arising from any Investigations or Recovery Proceeding must be applied as follows: (i) first, in payment of any other debts incurred or any claims, obligations, demands, actions, costs, charges, expenses or liabilities properly incurred by the Special Purpose Administrators in relation to the Company; (ii) second, in repayment of the Amount Owing; and (iii) finally, in accordance with the law, including the Corporations Act. (c) For the avoidance of doubt and notwithstanding any contrary provision of this Deed, no amount is payable by the Special Purpose Administrators to the Funder under or in relation to this Deed unless and until the Special Purpose Administrators have access to proceeds which they are able to use to make that payment and, in the absence of such available proceeds, there is no obligation on the Special Purpose Administrators to make any payment and, if no such proceeds ever become available, no obligation to make any payment to the Funder. (d) The Special Purpose Administrators may, in their absolute discretion, repay part or all of the Amount Owing at any time. (e) The Special Purpose Administrators must repay any amount payable under this clause or deed in cleared funds without set off, deduction or counterclaim. 6.2 Limited recourse Notwithstanding any contrary provision of this Deed, the liability of the Company to pay or repay to the Funder the Amount Owing or any other amount under or in relation to this Deed, is at all times limited to any available proceeds which the Company has received in or in connection with a Proceeding or Appeal (whether as a result of judgment, settlement or costs order in favour of the Special Purpose Administrators). 6.3 Uplift application (a) If the Special Purpose Administrators recover an amount (whether as a result of judgment or settlement) from any person m relation to any Investigations or Recovery Proceeding for which funding has been provided under this Deed, then the Funder may apply to the Court to compensate, or pay a premium to, the Funder from the recovered amount ahead of a dividend payment being made to the Company's creditors or shareholders or any other person. (b) If the Funder makes such an application, the Special Purpose Administrators will, subject to their duties under the Corporations Act and at law, support the application. 7. Information 7.1 Notifications and copies of correspondence The Special Purpose Administrators must: (a) notify the Funder as soon as reasonably practicable after being notified of any judgment, hearing, appearance or other procedural step in connection with a Proceeding or any Appeal; and (b) provide to the Funder as soon as reasonably practicable following receipt, a copy of any document received by the Special Purpose Administrators from any party to a Proceeding or any Appeal or from the Court. 7.2 Engaging and instructing the Solicitors (a) The Special Purpose Administrators agree to engage Solicitors. (b) The Special Purpose Administrators agree, on a common interest privilege basis, to keep the Funder apprised of instructions to the Solicitors. 7.3 Access to documents (a) Subject to (c), following any reasonable request received from the Funder, the Special Purpose Administrators will, on a common interest privilege basis, deliver to the Funder a copy of all documents it holds under or in connection with the Investigations or Recovery Proceeding, including all pleadings, evidence, expert reports, correspondence and advices from the Solicitors and Counsel. (b) The Funder will treat all such documents as strictly confidential and privileged and, unless already in the public domain, will not disclose them to any person without the Special Purpose Administrators' prior written consent (not to be unreasonably withheld), and will otherwise comply with any implied undertaking that may apply to such documents. (c) The Special Purpose Administrators are not obliged under this clause or otherwise to provide the Funder with any document or information if doing so would constitute a waiver of legal professional privilege, or where the Special Purpose Administrators consider, acting reasonably, that it would not be in the interests of the Investigation to do so. 7.4 Reporting and consultation with Funder (a) Following any reasonable request by the Funder, the Special Purpose Administrators will meet with the Funder and provide it with any reasonably requested information concerning the Investigations or Recovery Proceeding. (b) The Special Purpose Administrators will provide regular reporting to the Funder concerning the Investigations or Recovery Proceeding.
Submissions of the Special Purpose Administrators 13 In relation to orders sought, the Special Purpose Administrators submitted, in summary, the following: The Special Purpose Administrators have no funding or entitlement to any indemnification out of IGPC's property and to any lien over IGPC's property; The funding proposed under the Deed would be sufficient to enable the Special Purpose Administrators to undertake the investigations contemplated in the proposed orders. Without the funds under the Deed, the Special Purpose Administrators would not be able to undertake any of those investigations; A draft of the proposed Deed was previously before Derrington J, and it was foreshadowed that such Deed would be in place. The same grounds of opposition were raised before Derrington J in relation to confidentiality and his Honour said that was not a justifiable concern; Both the Special Purpose Administrators and the General Purpose Administrators each have the same duties and obligations to IGPC under the Corporations Act; The orders sought by the General Purpose Administrators constituted an attempt to have some control of the Special Purpose Administrators, and to create a brake on the Special Purpose Administrators' ability to undertake their tasks. This would likely cause delay, additional expenses, and the risk of additional appearances before the Court; Materially, the Deed did not create any liability for IGPC as funding was provided, at the initial stage, for the purposes of determining whether there were any available claims which might be capable of being commenced for the benefit of IGPC. If so, separate funding for those claims might be provided. Sev.en had no entitlement to recover any of the funding it provided unless, ultimately, a recovery was made by IGPC in a proceeding brought by it (through the Special Purpose Administrators); It is unlikely that the application of funds will be relevant under the Deed as the Deed contemplates only investigations, not Recovery Proceedings. If Recovery Proceedings are to be commenced then pursuant to clause 5 an additional funding arrangement will be entered into. There is no need for an additional condition to be made at this point in time; The Special Purpose Administrators sought orders in a "usual" form that they were justified in entering into the Deed to provide them with funds sufficient to fulfil their obligations. Orders of this type are frequently made by the Court; Order 6 of the orders proposed by the General Purpose Administrators requires a report to be produced whether or not any payment made to Sev.en constitutes remuneration; Clause 7.3 of the Deed sets out qualifications for the provision of documents to Sev.en which protects confidentiality. Rather than imposing the orders sought, it would be a lesser administrative burden for the General Purpose Administrators to notify the Special Purpose Administrators, on production of documents, which documents are (or are likely to be) the subject of legal professional privilege; and The factors set out in paragraph 60-12 are not a set list. They are matters to which the Court must have regard if they are before the Court. If those matters are not available to the Court then the Court is equally entitled to disregard them. Further, relevant matters had already been considered by Derrington J at [177] of the primary judgment.
Submissions of the General Purpose Administrators 14 At the hearing, the General Purpose Administrators submitted that they did not oppose, but rather sought that qualifications be imposed on the relief sought by the Special Purpose Administrators. 15 In the event that those qualifications were not implemented, the General Purpose Administrators nonetheless did not seek to oppose the relief sought. 16 The reasons the General Purpose Administrators sought the orders they proposed included the following: In relation to confidentiality, the Special Purpose Administrators, in carrying out their functions, will obtain documents that have been provided to the General Purpose Administrators which will attract, at least, claims for privilege. There is a contractual obligation that the Special Purpose Administrators disclose documents to Sev.en as the funder. This will result in Sev.en, as a third party to the administration, having access to documents that it ordinarily would not; The General Purpose Administrators sought the ability to confer in good faith with the Special Purpose Administrators to attempt to prevent the destruction of the privilege over such documents. The General Purpose Administrators noted that the outcome of such consultation would not place any obligation on the Special Purpose Administrators; The proposed approach would give the creditors comfort that the General Purpose Administrators would have some oversight and the capacity to intervene in the disclosure of confidential documents to Sev.en which might prejudice the interests of IGPC as a whole; During the course of administration, IGPC may be sold. Currently an expression of interest process is being undertaken. Sev.en is one of the interested bidders. As a result there is a real concern around the transparency of these sale processes, because if Sev.en had access to information via its funding arrangement with the Special Purpose Administrators, there may be a view taken by other potential bidders that Sev.en has received an advantage over those other potential bidders; In relation to remuneration, the orders proposed by the General Purpose Administrators did not seek to interfere with the relationship between the Special Purpose Administrators and Sev.en, for so long as the Special Purpose Administrators were only utilising the funds of Sev.en. The orders sought by Sev.en enliven only at the point where Sev.en would be reimbursed out of the creditors' funds; The effect of a remuneration determination under paragraph 60-10 of the Insolvency Practice Schedule (Corporations), being Schedule 2 of the Corporations Act (Insolvency Practice Schedule), as sought by the Special Purpose Administrators, was that under paragraph 60-11(5) the creditors of IGPC would not be permitted to apply for a re-determination of the Special Purpose Administrators' remuneration, in the event Sev.en was to be repaid under the Deed; The qualification sought by the General Purpose Administrators in relation to review of remuneration was to allow creditors to engage in an assessment of the Special Purpose Administrators' remuneration, in the event funds that would otherwise be available to creditors were to be used to pay for this remuneration. The purpose of the qualification was to bring the Special Purpose Administrators' remuneration determination process within the usual operation of the Corporations Act, which ordinarily includes a report to the decision-making body setting out the work done, the justification for that work and the amount charged, and allows an opportunity for the interrogation of that information; and Counsel for the General Purpose Administrators accepted that a remuneration determination made in advance was not unique, however submitted that the ability to review that determination was necessary to allow, if required, contemplation of the matters listed in para 60-12 as they were not available to the Court to consider at the time of determination.
Consideration 17 As I have already observed, the issue presently before the Court is the form of orders justifying the Special Purpose Administrators' entrance into the Deed with Sev.en. There is no issue as to the terms of the Deed itself, or the appropriateness of the Special Purpose Administrators entering into a funding arrangement with Sev.en. 18 The key issues are: (a) Whether the Special Purpose Administrators should be required to consult the General Purpose Administrators before providing confidential or privileged documents or information to Sev.en; and (b) Whether the creditors of IGPC should be permitted to apply to the Court for a re-determination of the remuneration of the Special Purpose Administrators, prior to and in the event of repayment to Sev.en under cl 6 of the Deed.
Disclosure of Documents 19 In the primary judgment, Derrington J explained in detail the power of the Court to make orders appointing the Special Purpose Administrators, and in particular that the appointment was to facilitate an investigation into and preservation and/or valuation of, any claims that IGPC may have against CSEL (at [130]). Later in the judgment his Honour said: The terms of the appointment 216 The defendants raised an objection to the terms of the appointment, being that the proposed funding deed not only permits but requires the special purpose administrators to "consult in good faith concerning the availability and commencement of any Recovery Proceeding" with Sev.en (see cl 5.1(a)) and to provide it with regular reports (see cl 7.4). This creates a situation in which Sev.en will receive information gathered in the administration of IGPC to which it would otherwise have no entitlement, as it is not a creditor of IGPC. 217 It was not explained why, given its obvious economic interest in the administration and the outcome of the investigation, and its preparedness to financially support any future litigation, Sev.en ought not to have access to the results. Necessarily, the administrators will have access to the report and will be able to disclose its contents as they see fit. The pursuit of any recovery action is likely to be in the interests of all creditors, and this complaint has no relevance to the Court's exercise of power. 218 The defendants' complaint that some delay will arise and extra expense will be incurred when the special purpose administrators seek approval of a funding agreement is unmeritorious. Even if there is such a delay and expense, it will be minimal in the scheme of this matter. It will likely be greatly outweighed by the benefits possibly to be derived from the appointment of the special purpose administrators. (emphasis added) 20 To the extent that the General Purpose Administrators have asked the Court to impose a limitation on the ability of the Special Purpose Administrators to disclose to Sev.en either documentation potentially subject to legal profession privilege, or documentation subject to confidentiality restrictions, I am ultimately not persuaded that that qualification should be imposed. I take this view because: The Special Purpose Administrators, like the General Purpose Administrators, are subject to obligations of directors and office holders of corporations under Part 2D.1 of the Corporations Act. Both sets of administrators are required to act in the interests of IGPC, and all the creditors. That the Special Purpose Administrators are being funded by Sev.en does not overcome these obligations, and would not automatically prevent the Special Purpose Administrators being in breach of their obligations under the Corporations Act should such disclosure of confidential material to Sev.en breach the Corporations Act. As was canvassed during the hearing, there is nothing to prevent the Special Purpose Administrators liaising with the General Purpose Administrators, in the ordinary course of their duties, to identify documents in the possession of the Special Purpose Administrators which are either confidential or potentially are subject to legal professional privilege. As is apparent from the paragraphs of the primary judgment set out above, possible complications arising from the disclosure of material to Sev.en by the Special Purpose Administrators were raised before Derrington J. While his Honour did not directly address the point presently before me, it does appear that his Honour considered the Special Purpose Administrators capable of assessing the confidentiality, or otherwise, of documentation. I accept the submissions by Counsel for the Special Purpose Administrators at the hearing that the administrative burden on the Special Purpose Administrators would be significantly increased by a requirement that they liaise with the General Purpose Administrators as contemplated by proposed draft orders 2 and 3 as advanced by the General Purpose Administrators. I further note that cl 7.3 of the Deed imposes limitations on the disclosure by the Special Purpose Administrators of documents to Sev.en, and the use of such documents by Sev.en.
Review of remuneration determination 21 The Insolvency Practice Schedule relevantly provides as follows: 60-5 External administrator's remuneration Remuneration in accordance with remuneration determinations (1) An external administrator of a company is entitled to receive remuneration for necessary work properly performed by the external administrator in relation to the external administration, in accordance with the remuneration determinations (if any) for the external administrator (see section 60-10). Remuneration for external administrators if no remuneration determination made (2) If no remuneration determination is made in relation to necessary work properly performed by the external administrator of a company in relation to the external administration, the administrator is entitled to receive reasonable remuneration for the work. However, that remuneration must not exceed the maximum default amount. 60-10 Remuneration determinations Remuneration determinations (1) A determination, specifying remuneration that an external administrator of a company (other than an external administrator in a members' voluntary winding up) is entitled to receive for necessary work properly performed by the external administrator in relation to the external administration, may be made: (a) by resolution of the creditors; or (b) if there is a committee of inspection and a determination is not made under paragraph (a)--by the committee of inspection; or (c) if a determination is not made under paragraph (a) or (b)--by the Court. Note: For determinations made by the Court, see also section 60-12 (matters to which the Court must have regard). (2) A determination, specifying remuneration that an external administrator of a company in a members' voluntary winding up is entitled to receive for necessary work properly performed by the external administrator in relation to the external administration, may be made: (a) by resolution of the company at a general meeting; or (b) if a determination is not made under paragraph (a)--by the Court. Note: For determinations made by the Court, see also section 60- 12 (matters to which the Court must have regard). (3) A determination under this section may specify remuneration that the external administrator is entitled to receive in either or both of the following ways: (a) by specifying an amount of remuneration; (b) by specifying a method for working out an amount of remuneration. Remuneration on a time-cost basis (4) If a determination under this section specifies that the external administrator is entitled to receive remuneration worked out wholly or partly on a time-cost basis, the determination must include a cap on the amount of remuneration worked out on a time-cost basis that the external administrator is entitled to receive. More than one remuneration determination may be made (5) To avoid doubt, more than one determination under this section may be made in relation to a particular external administrator of a company and a particular external administration of a company. 60-11 Review of remuneration determinations Review on application (1) Any of the following may apply to the Court for a review of a remuneration determination for an external administrator of a company: (a) ASIC; (b) a person with a financial interest in the external administration of the company; (c) an officer of the company. (2) Paragraph (1)(c) has effect despite section 198G. Note: Section 198G deals with powers of officers etc. while a company is under external administration. (3) On application under subsection (1), the Court may, if it considers it appropriate to do so, review the remuneration determination. Note: See also section 60- 12 (matters to which the Court must have regard). Court must affirm, vary or set aside remuneration determination (4) After reviewing the remuneration determination, the Court must: (a) affirm the remuneration determination; or (b) vary the remuneration determination; or (c) set aside the remuneration determination and substitute another remuneration determination. Exception (5) Subsection (1) does not apply to a remuneration determination made by the Court. 60-12 Matters to which the Court must have regard In making a remuneration determination under paragraph 60-10(1)(c) or (2)(b), or reviewing a remuneration determination under section 60-11, the Court must have regard to whether the remuneration is reasonable, taking into account any or all of the following matters: (a) the extent to which the work by the external administrator was necessary and properly performed; (b) the extent to which the work likely to be performed by the external administrator is likely to be necessary and properly performed; (c) the period during which the work was, or is likely to be, performed by the external administrator; (d) the quality of the work performed, or likely to be performed, by the external administrator; (e) the complexity (or otherwise) of the work performed, or likely to be performed, by the external administrator; (f) the extent (if any) to which the external administrator was, or is likely to be, required to deal with extraordinary issues; (g) the extent (if any) to which the external administrator was, or is likely to be, required to accept a higher level of risk or responsibility than is usually the case; (h) the value and nature of any property dealt with, or likely to be dealt with, by the external administrator; (i) the number, attributes and conduct, or the likely number, attributes and conduct, of the creditors; (j) if the remuneration is worked out wholly or partly on a time-cost basis--the time properly taken, or likely to be properly taken, by the external administrator in performing the work; (k) whether the external administrator was, or is likely to be, required to deal with one or more controllers, or one or more managing controllers; (l) if: (i) a review has been carried out under Subdivision C of Division 90 (review by another registered liquidator) into a matter that relates to the external administration; and (ii) the matter is, or includes, remuneration of the external administrator; the contents of the report on the review that relate to that matter; (m) any other relevant matters. 22 The General Purpose Administrators seek an order that, in summary, before any payment is made under cl 6.1(b)(ii) or cl 6.1(d) of the Deed, the Special Purpose Administrators must provide a report to IGPC's creditors, and the creditors be given 14 days to apply to the Court for a re-determination. 23 In my view this is a reasonable qualification to the orders proposed by the Special Purpose Administrators. 24 The Deed contemplates that Sev.en advance funds to the Special Purpose Administrators to conduct their investigations. The qualification sought by the General Purpose Administrators applies to circumstances prior to payment being made under cl 6.1(b)(ii) or cl 6.1(d) of the Deed. Clause 6.1(b) specifically applies to repayment where any amount is recovered by the Special Purpose Administrators from a defendant or a respondent arising from any investigations or recovery proceeding, and sets out the priority of application of those recovered funds. Clause 6.1(d) gives the Special Purpose Administrators absolute discretion to repay part of all of the "amount owing" at any time. 25 As Counsel for the General Purpose Administrators submitted, the ordinary course of approval of remuneration payable to voluntary administrators appointed under Part 5.3A of the Corporations Act is that a remuneration determination is made by either a resolution of the creditors or, if one is appointed, a committee of inspection: para 60-10 of the Insolvency Practice Schedule. A review of a remuneration determination for an administrator can be made on application by, inter alia, a creditor (para 60-11(1)(b)), however not if the remuneration determination is made by the Court: para 60-11(5). 26 Under the Deed, the funding of the Special Purpose Administrators is by Sev.en. In the event that the investigation gives rise to no Recovery Proceedings against defendant, that is the end of the matter insofar as concerns funding. However, in the event that the investigation does give rise to Recover Proceedings, and monies are recovered from one or more defendants for the benefit of IGPC and its creditors, the Deed contemplates that the monies advanced by Sev.en to the Special Purpose Administrators will be repaid to Sev.en. 27 In such circumstances, I consider that it is reasonable for any creditor to be allowed to seek review of the remuneration payable to the Special Purpose Administrators, where that remuneration is ultimately coming from monies recovered from proceedings against third parties, and where those monies would plainly be available to creditors. 28 As matters presently stand, the Special Purpose Administrators have requested the Court to make a remuneration determination prior to relevant investigative work being undertaken. There is nothing untoward about this request, noting that the Special Purpose Administrators have been appointed following orders of this Court. However, in circumstances where the monies are recovered from third parties by the Special Purpose Administrators for the benefit of IGPC, I consider it unreasonable for creditors to be excluded from the opportunity to seek review of any remuneration of the Special Purpose Administrators ultimately paid by IGPC. I particularly take that view in circumstances where matters listed in para 60-12 of the Insolvency Practice Schedule have not been available to the Court for consideration in approving the remuneration, as is the case here.
CONCLUSION 29 In conclusion, I consider the appropriate form of orders to be as follows: 1. Paragraph 1 of the Orders of 26 February 2024 be vacated. 2. Pursuant to section 447A of the Corporations Act 2001 (Cth) and/or para 90-15 of the Corporations Act 2001 - Schedule 2 Insolvency Practice Schedule (Corporations) (Insolvency Practice Schedule), the applicants to the interlocutory application filed on 19 February 2024 (Special Purpose Administrators) on their own behalf as the joint and several special purpose administrators of IG Power (Callide) Ltd (administrators appointed) (special purpose administrators appointed) (ACN 082 413 885) (IGPC), and on behalf of IGPC, be justified in entering into a Deed of Funding and Indemnity (Deed) in the same, or substantially the same, form as the document exhibited as "Confidential Exhibit JRP-3" to the Affidavit of John Richard Park filed 19 February 2024 (Park Affidavit). 3. Pursuant to section 37AF of the Federal Court of Australia Act 1976 (Cth), the Park Affidavit and Exhibit JRP-3 to the Park Affidavit be redacted to suppress the funding limits contained in the Deed until further order of the Court. 4. Subject to paragraph 5 of these Orders, pursuant to paragraphs 60-10(1)(c) and 60-10(3)(a) of the Insolvency Practice Schedule, and subject to further order, the Special Purpose Administrators' remuneration charged in conducting their "Investigations" as defined in the Deed, be: (a) determined on a time-cost basis in accordance with the schedule of rates contained in Exhibit JRP-4 exhibited to the Park Affidavit; and (b) approved up to the "Funding Limit" as defined in the Deed. 5. Pursuant to paragraph 90-15(1) of the Insolvency Practice Schedule: (a) before any payment is made in respect of remuneration under clause 6.1(b)(ii) or clause 6.1(d) of the Deed (the Funder Payment), the Special Purpose Administrators must provide a report to IGPC's creditors which complies with s 70-45(3) of the Insolvency Practice Rules (Corporations) 2016; and (b) any creditor of IGPC may, within 14 days after receipt of the report under paragraph 5(a) above, apply in this proceeding for a re-determination of any part of the remuneration the subject of the Funder Payment; and (c) the determination made under paragraph 4 of this Order is subject to any further re-determination made in accordance with this paragraph. 6. Compliance with r 9.2 of the Federal Court (Corporations) Rules 2000 (Cth) be dispensed with. 30 No submissions were made as to costs, and I make no such orders. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier.
Sev.en Gamma a.s
IG Power