IAN CHARLES FRANCIS JOINT AND SEVERAL ADMINISTRATORS WILUNA MINING CORPORATION LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT)

DANIEL HILLSTON WOODHOUSE JOINT AND SEVERAL ADMINISTRATORS WILUNA MINING CORPORATION LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT)

WILUNA MINING CORPORATION LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT)

WILUNA MINING CORPORATION LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 119 887 606)

WILUNA OPERATIONS PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 166 954 525)

WILUNA GOLD PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 153 919 549)

KIMBA RESOURCES PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 106 123 951)

ZANTHUS ENERGY PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 129 728 374)

LIGNITE PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 128 111 204)

SCADDAN ENERGY PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 128 388 634)

BETWEEN : AIM MINING CORPORATION LIMITED (ACN 006 640 553)

DANIEL HILLSTON WOODHOUSE AS JOINT AND SEVERAL ADMINISTRATORS OF WILUNA OPERATIONS PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 166 954 525) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

IAN CHARLES FRANCIS AS JOINT AND SEVERAL ADMINISTRATORS OF OF WILUNA MINING CORPORATION LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 119 887 606) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

IAN CHARLES FRANCIS AS JOINT AND SEVERAL ADMINISTRATORS OF WILUNA GOLD PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 153 919 549) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

MICHAEL JOSEPH RYAN AS JOINT AND SEVERAL ADMINISTRATORS OF ZANTHUS ENERGY PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 129 728 374) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

MICHAEL JOSEPH RYAN AS JOINT AND SEVERAL ADMINISTRATORS OF OF WILUNA MINING CORPORATION LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 119 887 606) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

MICHAEL JOSEPH RYAN AS JOINT AND SEVERAL ADMINISTRATORS OF LIGNITE PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 128 111 204) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

MICHAEL JOSEPH RYAN AS JOINT AND SEVERAL ADMINISTRATORS OF WILUNA GOLD PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 153 919 549) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

KATHRYN GUINIVERE WARWICK AS JOINT AND SEVERAL ADMINISTRATORS OF LIGNITE PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 128 111 204) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

KATHRYN GUINIVERE WARWICK AS JOINT AND SEVERAL ADMINISTRATORS OF SCADDAN ENERGY PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 128 388 634) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

DANIEL HILLSTON WOODHOUSE AS JOINT AND SEVERAL ADMINISTRATORS OF LIGNITE PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 128 111 204) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

MICHAEL JOSEPH RYAN AS JOINT AND SEVERAL ADMINISTRATORS OF SCADDAN ENERGY PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 128 388 634) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

KATHRYN GUINIVERE WARWICK AS JOINT AND SEVERAL ADMINISTRATORS OF ZANTHUS ENERGY PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 129 728 374) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

IAN CHARLES FRANCIS AS JOINT AND SEVERAL ADMINISTRATORS OF LIGNITE PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 128 111 204) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

IAN CHARLES FRANCIS AS JOINT AND SEVERAL ADMINISTRATORS OF ZANTHUS ENERGY PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 129 728 374) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

IAN CHARLES FRANCIS AS JOINT AND SEVERAL ADMINISTRATORS OF KIMBA RESOURCES PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 106 123 951) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

DANIEL HILLSTON WOODHOUSE AS JOINT AND SEVERAL ADMINISTRATORS OF KIMBA RESOURCES PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 106 123 951) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

KATHRYN GUINIVERE WARWICK AS JOINT AND SEVERAL ADMINISTRATORS OF KIMBA RESOURCES PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 106 123 951) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

IAN CHARLES FRANCIS AS JOINT AND SEVERAL ADMINISTRATORS OF SCADDAN ENERGY PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 128 388 634) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

DANIEL HILLSTON WOODHOUSE AS JOINT AND SEVERAL ADMINISTRATORS OF SCADDAN ENERGY PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 128 388 634) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

DANIEL HILLSTON WOODHOUSE AS JOINT AND SEVERAL ADMINISTRATORS OF OF WILUNA MINING CORPORATION LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 119 887 606) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

KATHRYN GUINIVERE WARWICK AS JOINT AND SEVERAL ADMINISTRATORS OF WILUNA OPERATIONS PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 166 954 525) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

MICHAEL JOSEPH RYAN AS JOINT AND SEVERAL ADMINISTRATORS OF KIMBA RESOURCES PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 106 123 951) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

DANIEL HILLSTON WOODHOUSE AS JOINT AND SEVERAL ADMINISTRATORS OF ZANTHUS ENERGY PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 129 728 374) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

KATHRYN GUINIVERE WARWICK AS JOINT AND SEVERAL ADMINISTRATORS OF OF WILUNA MINING CORPORATION LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 119 887 606) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

KATHRYN GUINIVERE WARWICK AS JOINT AND SEVERAL ADMINISTRATORS OF WILUNA GOLD PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 153 919 549) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

DANIEL HILLSTON WOODHOUSE AS JOINT AND SEVERAL ADMINISTRATORS OF WILUNA GOLD PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 153 919 549) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

IAN CHARLES FRANCIS AS JOINT AND SEVERAL ADMINISTRATORS OF WILUNA OPERATIONS PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 166 954 525) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

MICHAEL JOSEPH RYAN AS JOINT AND SEVERAL ADMINISTRATORS OF WILUNA OPERATIONS PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 166 954 525) AND AS TRUSTEES OF THE WILUNA CREDITORS' TRUST

KIMBA RESOURCES PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 106 123 951)

WILUNA OPERATIONS PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 166 954 525)

WILUNA GOLD PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 153 919 549)

WILUNA MINING CORPORATION LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 119 887 606)

ZANTHUS ENERGY PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 129 728 374)

LIGNITE PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 128 111 204)

SCADDAN ENERGY PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 128 388 634)

Practice and procedure - Costs applications for two Corporations Act matters - Deed Administrators' application for directions where Deed Administrators did not persist in seeking all directions and were not successful in obtaining all directions sought - Whether two interested parties given leave under r 2.13 should have their costs - Whether ordinary rule was displaced that interested parties should not have their costs - Application to terminate a DOCA without a breach - Application discontinued - Whether ordinary rule that discontinuing party should pay costs was displaced - Where in both actions special costs orders sought - Where in both actions special costs orders sought - Whether s 141(3) satisfied in respect of all of the special costs orders sought - Whether Court should deprive the Deed Administrators of their indemnity from companies' assets - Whether Court should initiate an enquiry into whether Deed Administrators should be so deprived

Corporations Act 2001 (Cth) sch 2 s 90-5, sch 2 s 90‑15

Legal Profession Uniform Law Application Act 2022 (WA) s 141

Legal Profession (Supreme and District Courts) (contentious Business) Costs Determination Table A, Item 11(a) of Table B

Supreme Court (Corporations) (WA) Rules 2004 (WA) r 2.13

Defendants' costs to be paid by plaintiff in COR 175

1. On 5 December 2025, I delivered my reasons on the issues remaining to be determined in COR 169 of 2025: Wiluna Mining Corporation Ltd [No 2] [2025] WASC 515 (primary judgment).
2. These reasons concern the costs of that and AIM's application in COR 175 of 2025. They are to be read with the primary judgment. I have continued to use the defined terms from the primary judgment.
3. The originating process in COR 169 filed on 27 October 2025 had originally sought, materially, Orders 2 - 5 and 7; not all of which were quoted in the primary judgment. I have annexed as Annexure A to these reasons, those sought orders extracted from the originating process.[1]
4. I have annexed as Annexure B to these reasons the substantive relief which was sought in the AIM application.

Applications by Deed Administrators and Companies

1. In relation to the rectification orders in COR 169 - namely Orders 2 and 2A of the amended originating process[2] - Mr Dundas deposed that the Deed Administrators' and Companies' costs of those rectification orders in COR 169 'are being met by KWM'.[3]
2. As to the balance of the action, the Deed Administrators do not now seek any order to the effect that they are entitled to recover their own costs in COR 169 out of the Companies' assets.[4] This may be contrasted with proposed Order 7 originally sought in the originating process in COR 169.
3. So, the Deed Administrators and Companies make no application in respect of their costs in COR 169 and submit that, in the circumstances, there should be no costs orders made in COR 169.
4. In relation to the AIM application, the Deed Administrators and Companies seek an order that AIM, as the discontinuing party, should pay their costs.
5. Further, they seek special costs orders against AIM in the AIM application, namely:

1. Pursuant to s 141 of the Legal Profession Uniform Law Application Act 2022 (WA), any taxation of the defendants' costs in COR 175 of 2025 is to be undertaken such that:

(a) the defendants' costs be taxed without regard to the limits fixed by Item 11(a) of Table B of the Legal Profession (Supreme and District Courts) (Contentious Business) Costs Determination 2024 (Determination);
>
> (b) the defendants' costs be taxed: > > > (i) without regard to the limits on maximum hourly and daily rates for senior practitioners fixed by Table A in the Determination; and
> >
> > (ii) allowing for a 50% uplift in the maximum hourly and daily rates for senior counsel fixed by Table A in the Determination; > >
>
> (c) there be reasonable allowances for work undertaken by senior counsel, junior counsel, senior practitioners and/or junior practitioners in respect of reviewing the plaintiff's affidavit evidence and preparing the defendants' affidavit evidence, considering and dealing with subpoenas issued or sought to be issued by the plaintiff, and considering and preparing to respond to the plaintiff's notice to produce. (original emphasis)[5]

1. In relation to the AIM application, AIM seeks for there to be no order as to costs.
2. In COR 169, AIM seeks the Deed Administrators pay its and Mr Jerkovic's costs or, in the alternative, that the Deed Administrators and the Companies pay those costs.
3. Further, AIM seeks a special costs order, namely:
   1. Pursuant to 141 of the Legal Profession Uniform Law Application Act 2022 (WA), any taxation of AIM Mining Corporation Limited's and Mr Milan Jerkovic's costs in COR 169 of 2025 is to be undertaken such that the those costs be taxed without regard to the limits fixed by Item 11(a) of Table B of the Legal Profession (Supreme and District Courts) (Contentious Business) Costs Determination 2024. (original emphasis)[6]
4. Although not apparent from AIM's proposed orders (by its Minute filed on 19 January 2026), AIM submits that the Court ought make orders such that the Deed Administrators' fees and costs of COR 169 should be paid by the Deed Administrators personally;[7] or, at the least, that the Court ought conduct an enquiry into whether the Deed Administrators ought be deprived of their recourse to the Companies' assets.[8]

1. In both COR 169 and the AIM application, Mr Jerkovic seeks the same orders as sought by AIM, and essentially adopted AIM's submissions as his own. Because of that, with no disrespect intended, I have tended to refer to the submissions put by AIM as being its alone, but I am mindful that they were adopted by Mr Jerkovic.

1. The Deed Administrators and the Companies read the affidavit of Mr Dundas made and filed on 19 December 2025 (second Dundas affidavit).
2. AIM objected to paragraphs [16] - [19] of the second Dundas affidavit.[9] In those paragraphs Mr Dundas set out a process by which he sought to assess the time 'charged' to the Deed Administrators and Companies by his firm and counsel between COR 169 and the AIM application. Mr Dundas deposed to the necessity of apportioning between the two matters some time spent on tasks where it appeared that the particular task went across the two actions.
3. As I understood the objection, AIM said that Mr Dundas had put forward conclusions without an appropriate basis being disclosed,[10] or that he had arbitrarily allocated time and costs which might have been thought to be common to the two matters.[11]
4. Mr Dundas' evidence was that he had sought to capture the time and fees charged in the AIM application,[12] and then deposed to the process which he had undertaken or caused to be undertaken to come to that assessment.
5. Mr Dundas deposed to his experience, which was not challenged and which I accept. I accept he followed a process and arrived at time divisions and fee estimates which, while perhaps arbitrary in some respects, are nonetheless reasonably based in my view.
6. As I noted in the debate about the objection, the process of the allocation of costs between COR 169 and the AIM application, while it may be necessary, was complicated to some degree by the orders I made by consent on 11 November 2025 that any evidence adduced in COR 169 or in the AIM application would be evidence in the other. I have borne that matter in mind, and it has informed the conclusion I have reached as to the reasonableness of the exercise undertaken by Mr Dundas.
7. For those reasons, I overruled that objection.[13]
8. AIM read without objection the affidavit of one of its solicitors, Joseph Gregory Abberton, made and filed on 19 January 2026.
9. Mr Jerkovic read without objection the affidavit of one of his solicitors, Luke Vincent, made and filed on 19 January 2026.

1. AIM submits that since the primary judgment and the filing of the submissions on the part of the Deed Administrators and the Companies on 19 December 2025, the Deed Administrators have ceased to hold office (on the effectuation of the DOCA) and no longer have standing to make the submissions they do to this Court.[14]
2. I do not accept that submission. To the extent that the Deed Administrators no longer control the Companies, I was told, and accept, that the Companies under their new boards of directors support the submissions made on the Companies' behalf in these applications.
3. As recorded in the primary judgment at paragraph [19], the Deed Administrators only sought at trial orders in terms of their Orders 2, (the newly added) 2A and 5.
4. Orders 2 and 2A were described as rectification orders in the primary judgment and were not opposed by AIM or Mr Jerkovic. I made orders materially in terms of the proposed Orders 2 and 2A.
5. A day before the trial, the Deed Administrators gave notice to the Court that they would not move for the directions contained in Orders 3 and 4: primary judgment at paragraph [13].
6. Order 5 was opposed by AIM and Mr Jerkovic. In the result, I declined to make orders in terms of Order 5.
7. In the primary judgment, I granted leave to both AIM and Mr Jerkovic to be heard in COR 169 on the basis that they were contributories of WMC.[15]
8. I also stated that AIM and Mr Jerkovic had played a role in COR 169 which supported the grant of leave.[16]
9. It was common ground between the parties that a party seeking to be heard under r 2.13 of the Supreme Court (Corporations) (WA) Rules 2004 (WA) will not usually be entitled to their costs unless there are 'exceptional' or 'special' factors outside the ordinary and expected course of events.[17]
10. As I understand it, the factors relied upon by AIM for this Court to depart from the usual orders were:
    1. COR 169 was effectively adversarial in nature;[18]
    2. the changes made to the form and orders pressed in COR 169 meant that much attention was directed to addressing matters which fell away;[19]
    3. Order 2 by itself was ineffective which was raised by AIM before the application was amended to introduce Order 2A;[20]
    4. Orders 3 and 4 were always inutile because of the availability of the cash sweep mechanism;[21] and
    5. as to Order 5, AIM was successful in relation to this issue and the Deed Administrators were unable to persuade the Court that Order 5 should be made.[22]
11. In short, for the reasons which follow, I do not consider that there is anything relevantly exceptional or special which would take the costs of AIM and Mr Jerkovic being heard in COR 169 out of the ordinary rule.
12. While it may be the case that the tone of the proceedings was adversarial, I do not think the proceedings had that character relevantly for costs purposes.
13. It is important to bear in mind that the originating process and the amended originating process in COR 169 were seeking directions from the Court; even if some of them were not persisted with at trial.
14. While AIM and Mr Jerkovic may have taken particular exception to Orders 3, 4 and 5, the directions sought were not particular to them but affected all persons bound by the DOCA and the Creditors' Trust. Proceedings for such directions are less likely to be relevantly 'adversarial' as I understand the authorities: see, in particular, Preston, in the matter of Sandalwood Property Ltd (No 2) [2018] FCA 816 (Preston) (Colvin J), which was a case relied upon by AIM.
15. In that case, receivers sought judicial advice and a grower intervened to oppose the making of the directions. The directions sought were to the effect that the receivers of the company could ignore notices given by a grower which purported to terminate the company's appointment as a manager of a scheme and that it would be entitled to remain as manager.
16. Colvin J gave, broadly, the directions sought by the receivers and then considered the appropriate costs orders to be made. His Honour set out what he considered to be 'settled principles' in respect of the costs of judicial advice applications: see [15] and following.
17. With respect, I do not consider that I could improve on his Honour's summary of the cases he cited and the parties accepted the correctness of the approach taken by Colvin J, even if they contended it had different consequences in this case.
18. In that case, Colvin J ordered that the grower should pay the receivers' costs: [13]. The grower had sought an order that its costs (with the receivers) ought to be paid out of the company's funds.
19. Colvin J assessed the proceedings before him as 'adversarial' as:
    1. Further, this was not a case where the Receivers sought directions in respect of an issue that was present at the time of their appointment and therefore necessarily a part of the issues to be addressed in the receivership. Rather, it arose from steps taken by Growers in agitating a right to remove SPL as manager under the agreements.
    2. In those circumstances, the proceedings were adversarial. They concerned the competing positions as between the Receivers and the Growers in respect of the ongoing management of the schemes based on the notices and the meetings. SGCL submitted that there should be no directions because the dispute should be resolved by proceedings between the relevant parties. Indeed, a submission was advanced that any direction should be made on condition that the Receivers cause SPL to commence proceedings seeking appropriate relief as to the position that it maintained in relation to the notices and the meetings of Growers. Further, as I have already stated, SGCL advanced contentions based on the commercial interests of the parties rather than what was best for the administration of the receivership. Its case was not confined to the merits of the issue of interpretation of the relevant provisions of the agreements.
    3. For those reasons, the present case is to be contrasted with one where parties with an interest in a trust or fund that is being administered intervene to assist the court in resolving complex legal issues as to the administration of the trust or fund.

1. For reasons I have given, in my view the proceedings in the case were adversarial in nature. They involved a contest between competing positions that arose from actions taken by the Growers through SGCL to assert that the appointment of SPL as manager under the agreements had been terminated in the course of the receivership. Further, the submissions advanced by SGCL were substantially to the effect that no directions should be made because the matter should be allowed to proceed solely on the basis of contested proceedings which SGCL urged the court to require the Receivers to commence.
2. This is not a case where all parties were each doing there bit to bring before the court an issue that had arisen in the course of the receivership and independently of the actions of the parties so that judicial advice might be provided to guide the administration. The intervention by SGCL was to raise an adversarial position.
3. For those reasons, SGCL is to be viewed as an unsuccessful party and the usual order as to costs should follow.
4. As may be seen, I have assessed COR 169 as being materially different from Preston in the material respect.
5. As to Orders 2 and 2A, once the Deed Administrators sought both rectification orders AIM and Mr Jerkovic did not oppose those orders being made.
6. It may well be the case that AIM's opposition to Order 2, by itself, played a role in Order 2A being added.
7. However, it is not clear to me that if Order 2 had been the only order sought and granted that it would not have effectively amended the operation of the Creditors' Trust Deed. I alluded to this possibility in the primary judgment at paragraph [28].
8. Further, of course, it was open to AIM to identify the potential problem if Order 2 was made by itself as it saw it, and to indicate that as a matter of prudence an order in terms of Order 2A ought also to be made. That was an alternative course which may have reduced the costs of the participants rather than, perhaps, the full‑blooded attack which was made on Order 2 at some length before Order 2A was added.
9. It is correct that both AIM and Mr Jerkovic identified the difficulty with Order 5 which ultimately led to its not being granted: namely, that the direction related to the making of a business or commercial decision.
10. However, and with great respect, it might be thought that the question would always have been raised by the Court with the plaintiffs, if it was not otherwise raised by AIM and Mr Jerkovic at the outset.
11. For those reasons, I consider that the usual rule should apply and there should be no order as to costs in COR 169.

Deed Administrators' indemnity as to their costs from the Companies

1. As noted above, differently from Order 7 originally sought in the originating process, the Deed Administrators now take the position that they do not require any order to be indemnified from the Companies' assets.
2. It was common ground that the Deed Administrators generally had a right of indemnity from the assets of the Companies under administration.
3. AIM says that the Court may, and should, make an order in COR 169 limiting the Deed Administrators' ability to rely on their indemnity.[23]
4. AIM accepted that it had no standing to seek such an order[24] but was seeking to raise the issue so that the Court 'should not be deaf' to the issue which AIM sought to agitate and submitted that the Court should act on its own initiative under either s 90-5 or s 90‑15(2) of the Insolvency Practice Schedule.[25]
5. It was common ground that there was no inherent power in the Court to make the sort of order which AIM submitted should be made; rather the source of power was entirely statutory[26]: Arena Management Pty Ltd (Receiver & Manager Appointed) v Campbell Street Theatre Pty Ltd [2011] NSWCA 128, (2011) 80 NSWLR 652 [35] ‑ [43], [64] ‑ [70] and [101] (Campbell JA; with McColl & Macfarlan JJA agreeing).
6. AIM submits that s 90-15 of the Insolvency Practice Schedule gives the Court power to determine the application of the indemnity against the assets of the Companies[27]; or to order an enquiry under s 90‑5 as to whether the indemnity should be available.[28] This latter submission was not the subject of AIM's written submissions.
7. In the course of the hearing, counsel for AIM identified two suggested courses which the Court might adopt if it were minded to seek further information, including pursuant to s 90-5 of the Insolvency Practice Schedule.[29]
8. The Deed Administrators accepted that the Court may deprive the Deed Administrators of their indemnity,[30] but submitted that this was not an appropriate case for such an order[31] and, in any event, the Court did not yet have sufficient information and had not made sufficient findings to support such an order.[32] The Deed Administrators sought to distinguish the decision made by Besanko J (and heavily relied upon by AIM) in Adelaide Brighton Cement Limited v Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement) (No 6) [2020] FCA 928 on this basis. In that case, Besanko J, because of the findings which he had made in the substantive matters and reasons, had an evidential basis to consider and make orders as to whether the administrators ought be deprived of their normal indemnity.
9. AIM submitted that an order under s 90-5 or s 90-15 of the Insolvency Practice Schedule did not require a finding or concern about impropriety on the part of the Deed Administrators as such. Rather, it would be sufficient if the Court came to the view that, or was concerned that, the fees or costs had not been reasonably or properly incurred such that they should not be visited on the Companies.[33]
10. I was told, without objection, by counsel who appeared for both the Deed Administrators and the Companies, that the new boards of directors of the Companies did not support the Deed Administrators being deprived of their indemnity against the Companies' assets.[34]
11. Senior counsel for AIM sought to have the Court, in effect, go behind that statement of the Companies' position on the basis that their solicitors had a material conflict of interest.[35]
12. However, in circumstances where the Companies now have independent boards, I consider that, in the absence of something more, I should accept the position put on behalf of the Companies. I have proceeded on the basis, in the absence of anything apparent to the contrary, that any conflict of interest, perceived or real, has been appropriately dealt with between the Companies and their legal representatives. I have no reason to suspect that the legal representatives and the directors have not performed their separate, independent duties. Senior counsel for AIM accepted there was no material which suggested to the contrary.[36]
13. Also, as I understood it, AIM submitted that there was an inherent conflict on, at least, this application between the Deed Administrators' position and that of the Companies.
14. For the reasons I gave above as to the asserted conflict, I would not accept this submission as either depriving the Deed Administrators of their right to the indemnity or as giving the Court cause to order an enquiry.
15. From there, I further consider it is appropriate to place some weight on the fact that the Companies are now under independent directors and have joined with the Deed Administrators, and do not seek to have the indemnity from the Companies' assets taken away. That is, I place some weight on the basis that the Companies did not seek to agitate any issue with the Deed Administrators' conduct of COR 169 which ought lead to the removal of the indemnity.
16. AIM (and Mr Jerkovic to similar effect) submitted that the Deed Administrators should not have their costs and expenses paid from the Companies' assets because:
    1. the rectification relief (Orders 2 and 2A) was necessary only because of their solicitors' failure to properly draft the DOCA and their failure to identify the error before its execution;[37]
    2. in relation to the directions which were not pressed as to the use of funds (namely Orders 3 and 4), the directions sought were unnecessary[38]; were not adequately explained in evidence[39]; and, further, could not have been granted because they would have had the effect of varying the trust[40]; and
    3. the hearing on Order 5 was unnecessary and unsupported by the evidence and ultimately unsuccessful.[41]
17. I think the submissions of AIM on Orders 2 and 2A fall away as Mr Dundas has stated plainly that the Deed Administrators will have no need to rely upon the indemnity in relation to these orders,[42] as noted above.
18. I continue to have a little difficulty in understanding, in all of the circumstances, why the Deed Administrators embarked on the course they did and on which they sought the Court's directions by Orders 3 and 4.
19. However, even if I were to go so far as to characterise that course as being an error of judgement or as being misguided, on the material before the Court I do not come to a finding that the conduct of the Deed Administrators has been such that they ought be deprived of the indemnity.
20. Further, I do not think that the concerns raised in this respect to date by AIM and Mr Jerkovic have persuaded me that there ought to be an enquiry under s 90-5 of the Insolvency Practice Schedule ordered on the Court's initiative.
21. As to the seeking of Order 5, it is true that the Court did not give the direction sought. However, again, the unsuccessful seeking of that direction was not such that I consider that the Deed Administrators' costs were not reasonably or properly incurred such that they ought be deprived of the indemnity.
22. Particularly in respect of the costs associated with Orders 3 and 4, I am also conscious that they may yet be sought to be agitated by Mr Jerkovic by some amendment to his application in COR 158 of 2025. I am not presently determining the likelihood of that occurring or of the Court's willingness to accede to such an application.
23. At the hearing, AIM also submitted that, at the least, there was a reason to enquire into the Deed Administrators' costs because it was submitted that the material they had filed in COR 169 was directed, in part, to answering or heading off Mr Jerkovic's application and that such a 'personal' defence ought not be paid out of the Companies' funds.[43]
24. That submission must be assessed against the background where, in my view, it was entirely appropriate on the part of the Deed Administrators to put to the Court all matters which may be relevant to the exercise of the Court's discretion as, on commencement of COR 169, it was (initially) entirely possible that the matter may proceed ex parte.
25. While the submission might be made that the material filed in COR 169 was relevant to, and may even head off, the matters sought to be agitated in Mr Jerkovic's application, the underlying conduct of the administration under the DOCA could not be said to be irrelevant to the exercise of the Court's discretion on whether to grant the directions sought in COR 169.
26. Reasonable minds may well have differed about how much information or material needed to be put before the Court. Senior counsel for AIM, fairly, accepted both that proposition and that the history of commercial dealings between AIM and the Deed Administrators provided explanatory context for the materials put on by the latter in COR 169.[44]
27. The Deed Administrators may be open to a criticism that they were not discriminating enough in the breadth of the material which they put before the Court in COR 169. I am not necessarily endorsing such a criticism. It is trite to observe that all parties must seek to keep their matters within manageable bounds and not to put irrelevant or extraneous material before the Court.
28. But even if that criticism could be made and sustained, I do not accept the submission that the Deed Administrators should be taken as effectively defending themselves by the material in COR 169 from the matters raised in Mr Jerkovic's application such that they have mounted a personal defence on the Companies' coin.
29. Rather, I am of the view that even if perhaps mistaken in degree, it was not so unreasonable for the Deed Administrators to file the material in COR 169 they did, such that they should be deprived of the indemnity.

Parties' submissions on costs in the AIM application

1. As recorded, AIM effectively discontinued the AIM application prior to the trial and so it was not the subject of the primary judgment: primary judgment at paragraph [12]. AIM told the Deed Administrators and the Companies at 5.20 pm on 24 November 2025 that it would discontinue the action,[45] and told the Court of the same on 26 November 2025.[46]
2. The parties were generally in agreement as to the principles to be applied to the discontinuance of the AIM application.[47]
3. A convenient summary was provided in AIM's submissions by quoting from Robert Michael Kirman and Robert Conry Brauer as joint and several Administrators of Tiger Resources Ltd (Subject to Deed of Company Arrangement) [2021] WASC 273 (Tiger Resources) [30] where Hill J summarised them as follows:

(a) the underlying policy in the Rules of the Supreme Court 1971 (WA) in relation to a discontinuance of an application is that the discontinuing party should be liable for the other party's costs unless the court orders otherwise;

(b) the conduct of the parties and the reasons for discontinuing the case can bear heavily on exercise of the discretion;

(c) in determining whether the costs should be borne by the discontinuing party, the court is not to try a hypothetical action between the parties;

(d) if 'it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings';

(e) however, where the discontinuance 'can be said to be an acknowledgement by an applicant of likely defeat or where no objective circumstance provides reason for the discontinuance, a costs order in favour of the other party will ordinarily be made';

(f) in some cases the court may be able to form the view, with confidence, that although both parties had acted reasonably, one party was almost certain to have succeeded if the matter had been heard;

(g) the reasonableness of the plaintiff's conduct in commencing and discontinuing the proceedings is relevant and must be considered in the context of the policy in (a); and

(h) it is relevant to consider whether there has been a supervening act which has rendered the application futile. (citations omitted)

1. I have gratefully adopted and applied those principles.
2. AIM submitted that:
   1. the AIM application was commenced to address its concerns as to the course of action proposed by the Deed Administrators in COR 169;[48]
   2. the AIM application was filed to deal with the inadequacies of the relief sought by the plaintiffs in Order 2;[49] and
   3. as a result of the shifting sands of the Deed Administrators' application in COR 169, the relief sought in the AIM application ultimately became unnecessary to pursue.[50]
3. I note that AIM did not seek to adduce any evidence as to its subjective intentions as to the commencement of the AIM application, nor as to its decision to discontinue it.
4. So, I am to assess AIM's submissions on the costs of its discontinuance from what might be reasonably inferred from the face of the documents against the history of the matter established in the primary judgment or from the other evidence before the Court.
5. With great respect, I do not accept the first two submissions advanced by AIM.
6. In the broad, I do not accept that the AIM application, on its face, was seeking to improve any aspect of the Deed Administrators' proposal/s within the then DOCA (as agitated in COR 169) as its first two submissions suggest. Rather, the substance of the AIM application sought to bring the then DOCA to an end (without effectuation or a breach) and put a fresh AIM inspired DOCA to the creditors.[51]
7. The AIM proposed DOCA was, in my assessment, a continuation of AIM's commercial position or positions that had been put to the Deed Administrators in relation to the Companies for a number of months prior to any of Mr Jerkovic's, COR 169 or the AIM applications.[52]
8. The AIM proposed DOCA (at the heart of the AIM application) was a furthering of AIM's commercial objectives and proposals which had been put previously to the Deed Administrators. That is not, of itself, to make a criticism of the AIM application, but rather to reject any submission that it was principally designed to correct or improve the then present DOCA as put by AIM's first two submissions.
9. As to the third submission made by AIM above, this was somewhat refined at the hearing to a submission that the waiver by Byrnecut Offshore on 6 November 2025[53] had pulled the rug out from under the AIM application.[54] That is, effectively events had moved on so that the AIM application was no longer of utility and so the appropriate order was that there be no order as to costs.
10. As noted, this submission falls to be determined without evidence as to the subjective intentions behind AIM's discontinuance.
11. As noted above, by the agreed chronology, AIM by its solicitors gave notice at 5.20 pm on 24 November 2025 to the Deed Administrators that it intended to discontinue its application.[55] That followed the Deed Administrators earlier that day (and by no later than the filing of the fifth Ryan affidavit at about 10.00 am) indicating that the cash sweep mechanism would be utilised so that the creditors would be paid in full through the Creditors' Trust Deed.[56]
12. If I was able to accept the character of the AIM application which is put in the first two submissions set out in [84] above, then the submission made by AIM that the events of 24 November 2025 (which required the waiver by Byrnecut Offshore) had overtaken the utility of the AIM application may well have force.
13. That is not, in my view, the character of the AIM application on its face. That leads me to not accept at face value that the matters contained in the relevant correspondence from AIM's solicitors at the end of 24 November 2025 necessarily reflected the whole of AIM's reasons.
14. A competing available inference, in my view, is that AIM reached a view as to its prospects of succeeding in its application and took the opportunity in light of the Deed Administrators' changes of position in COR 169 to give notice of discontinuing the AIM application.
15. I consider that competing inference is available as, on its face, the AIM application was bold and ambitious in that it sought by its Order 1.2 under the plenary power in s 447A that creditors may vote to terminate the then DOCA notwithstanding that there had been no breach of it.
16. As I read in to the matter in preparation for the trial (and obviously prior to the Court being informed that the AIM application would be discontinued), my impression (with the benefit of extensive submissions of over 40 pages but without the benefit of full argument) was that AIM was facing a very considerable challenge in persuading the Court to make the orders sought in the AIM application (irrespective of what the Court decided in COR 169).
17. In short, I consider that AIM has not displaced the ordinary rule or policy identified by Hill J in Tiger Resources quoted above.
18. For those reasons, I consider that AIM should pay the plaintiffs' costs of the AIM application.

1. As seen, the parties rely, albeit in different parts of their respective applications, on s 141 of the Legal Profession Uniform Law Application Act 2022 (WA) (LP Application Act) which relevantly provides as follows:
   1. Effect of costs determinations

(1) The following are regulated by an applicable costs determination -

(a) the taxation of bills of law practices;

(b) any other aspect of the costs charged by law practices.

...

(3) Despite subsection (1), if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do any or all of the following -

(a) order the payment of costs above those fixed by the determination;

(b) fix higher limits of costs than those fixed in the determination;

(c) remove limits on costs fixed in the determination;

(d) make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed.

(4) Subsection (1) does not limit the power of a court, a judicial officer or a taxing officer of a court to determine in any particular case before that court, judicial officer or taxing officer the amount of costs allowed.

1. I have set out above the form of special costs orders sought respectively.
2. It is obvious from the three solicitors' affidavits read, that each camp assembled very significant teams of solicitors and counsel to deal with COR 169 and the AIM application.
3. Certainly, both the Deed Administrators and Companies on the one hand, and AIM on the other hand, devoted very significant resources to the preparation of the matters, and one is put in mind of descriptors such as 'no stone left unturned' or a 'scorched earth approach'. Indicative of the resources devoted by the camps is the fact that the applications on costs, alone, generated about 50 pages of written submissions and more than three hours of Court time in argument. I should say that I fear these over‑long reasons may encourage parties (wrongly) to consider that this is a normal or routine way of dealing with costs in matters such as this.
4. Those resources were assembled and deployed in very expedited circumstances which, until just before the adjourned first day of the trial, was listed for a five-day hearing. The expedition of the matter, of itself in my view, made the matter, relevantly, unusually difficult.
5. Further, the volume of the material put before the Court was a significant contributor to the difficulty or complexity of the matter. That volume of material is not, in my view, attributable only to one party or camp.
6. Broadly, I accept that for the purposes of s 141(3) of the LP Application Act that the amount of costs allowable by Item 11(a) of Table B of the Determination would be inadequate because of the unusual difficulty or complexity of the matter. I would not find that, relevantly, there was any unusual or heightened importance of the matter.
7. If I had been minded to make a costs order in COR 169 (or I am wrong not to have done so), then I would have made an order in terms of Order 3 of AIM's minute filed on 19 January 2026.[57]
8. For the above reasons, I would also make orders in terms of Orders 2(a) and (c) of the Deed Administrators' and Companies' minute filed on 19 December 2025.
9. As may be seen from above,[58] Order 2(b) seeks an uplift, effectively, of the rates for senior practitioners and senior counsel from those allowed in Table A of the Determination.
10. The Deed Administrators and Companies submit that the uplifts should be ordered because:
    1. a large commercial law firm with significant resources was retained with senior practitioners with particular expertise who charge above the scale maximum;[59]
    2. senior counsel with significant experience in complex commercial insolvency law matters was briefed who charged a rate exceeding the scale maximum;[60] and
    3. it was fairly arguable that it was appropriate to engage such solicitors and senior counsel who would be expected to charge such above scale rates having regard to the complexity of the matter.[61]
11. It is unclear to me, having regard to s 141(3) of the LP Application Act, why the unusual difficulty or complexity which I have found has the result that the hourly rates in Table A need to be lifted.
12. Of course, I understand and accept that it is usual for practitioners, including counsel, to charge above scale rates in commercial matters. Whether or not clients accept such above scale rates is a matter for them in the ordinary course.[62]
13. As I read the 'gateway' in s 141(3) of the LP Application Act, something more is required to be made apparent to the Court than the mere fact that the senior practitioners retained by the particular party charge more than the scale rate.
14. I do not understand why the unusual difficulty or complexity here has the result that the scale rates are inadequate, especially in circumstances where the Court has ordered an uplift of Item 11(a) of Table B.
15. I am not sure whether there is an unstated assumption in the submission made that only practitioners who charge above scale can do difficult or complex matters. If that is the implicit assumption, then I would not accept it.
16. In this respect, the plaintiffs (in COR 169) relied on the decisions in Aquila Steel Pty Ltd v BHP Minerals Pty Ltd [2022] WASC 121 (S) [14], [17] (Allanson J) and North West Pilots Pty Ltd as trustee for the Port Hedland Pilots Unit Trust trading as Port Hedland Pilots v Daniel [2023] WASC 73 (S) [22] (Hill J).[63] I accept in those cases that there was an uplift ordered on the rates of senior practitioners (including for senior counsel). I, in no way, seek to doubt those decisions. No doubt there were good reasons for each of Allanson J and Hill J to make the orders they did based on their assessment of the matters before them.
17. However, in this matter, I am not satisfied that the necessary connection mandated in s 141(3) of the LP Application Act has been made out between the inadequacy of the scale being caused by the unusual difficulty or complexity.
18. For those reasons, I will not make an order in terms of Order 2(b) as sought by the Deed Administrators and Companies in COR 169.

1. Counsel for the Deed Administrators and Companies foreshadowed seeking to be heard on the costs of these costs applications.[64]
2. In my present, preliminary view, the starting point on such costs would be that AIM and Mr Jerkovic jointly and severally pay the costs of the costs applications of the Deed Administrators and Companies in both matters.
3. Presently, without argument, I do not consider that there is a reason to depart from the general rule that costs follow the event. And, I note, that AIM and Mr Jerkovic have been unsuccessful in displacing what they accepted to be the ordinary or usual orders as set out above.
4. I am not determining the issue of the costs of the costs applications now but I indicate my preliminary views to try and assist the parties and to avoid yet more satellite litigation the kind of which was deprecated, for example, by the Court of Appeal in Kidd v The State of Western Australia [2015] WASCA 62 (S) [2] (Martin CJ, Newnes & Murphy JJA).

1. I will make no costs orders in COR 169.
2. AIM should pay the Deed Administrators' and Companies' costs of the AIM application, and I would also make the orders sought in Orders 2(a) and (c) of the minute filed on 19 December 2025.
3. I will hear the parties, as needs be, as to the final form of the orders to be made including as to further costs if needs be.

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

1. Pursuant to section 447A of the Corporations Act 2001 (Cth) (Corporations Act), Part 5.3A of the Corporations Act is to operate in relation to Wiluna Mining Corporation Limited (subject to deed of company arrangement) (ACN 119 887 606) (WMC) and the other companies identified in the Schedule (together, the Companies) as if the deed of company arrangement executed on 28 July 2023 in respect of the Companies (DOCA) had always contained the following definition of "Non‑Participating Creditors" in clause 1.1 (in replacement for any other such definition appearing on the face of the DOCA):

Non-Participating Creditors are the following Creditors:

(a) employee creditors of the Companies who are retained and have not been terminated as at the Effective Date;

1. Pursuant to section 90-15 of Schedule 2 to the Corporations Act, it is directed that the first plaintiffs, as deed administrators of the Companies under the DOCA, will be acting properly and are justified in causing WMC to pay to the trustees (Trustees) of the trust (Wiluna Creditors' Trust) established by the creditors' trust deed executed on 28 July 2023 (Creditors' Trust Deed) the total sum of $37.2 million received from Byrnecut Australia Pty Ltd, Deutsche Balaton Aktiengesellschaft and Sparta Invest AG pursuant to the convertible note deeds dated 20 October 2025 so as to:

(a) meet the debt owed by the Companies under clause 5.1(a) of the Creditors' Trust Deed; and

(b) reduce the Total Trustee Debt (as that term is defined in clause 1.1 of the Creditors' Trust Deed) and so that the sum may form part of the Trust Fund (as that term is defined in clause 1.1 of the Creditors' Trust Deed).

1. Pursuant to section 92 of the Trustees Act 1962 (WA), it is directed that the Trustees will be acting properly and are justified:

(a) in treating the sum received from WMC, as contemplated by the direction in paragraph 3 above, as a contribution to the Trust Fund (as that term is defined in clause 1.1 of the Creditors' Trust Deed); and

(b) in carrying out the Wiluna Creditors' Trust and performing their functions and duties under the Creditors' Trust Deed by reference to that state of affairs.

1. Pursuant to section 90-15 of Schedule 2 to the Corporations Act, it is directed that the first plaintiffs, as deed administrators of the Companies, following the appointment of one or more suitably qualified and experienced directors to the boards of directors of the Companies, will be acting properly and are justified:

(a) in waiving, and in giving notice to the creditors of the Companies of the waiver of, the remaining unfulfilled conditions precedent under clauses 12.1(h) [Member approvals], 12.1(i) [Regulatory approvals] and 12.1(j) [Capital Raising] of the DOCA;

(b) in certifying in writing that the components of the DOCA have been fully effectuated, in lodging with the Australian Securities and Investments Commission (ASIC) ASIC Form 5056 (or such other relevant form as is required by ASIC) in relation to the effectuation of the DOCA for each of the Companies, and in giving notice of the termination of the DOCA to each of the Companies' creditors; and

(c) upon the taking of the steps referred to in order 5(a) and order 5(b) above, in otherwise resigning as the deed administrators of the Companies.

1. The costs of the application are costs properly incurred in the administration of the DOCA, to be paid out of the assets of the Companies.

1. Upon the undertaking of the plaintiff that it will propose a Deed of Company Arrangement in terms at least as favourable as the DOCA annexed to the affidavit of Jing Yun Soh sworn and filed in proceedings numbered COR 169 of 2025 on 5 November 2025 and marked "JYS-30" (AIM DOCA):

1.1. an order pursuant to section 90-15 of the IPS that it is directed that the first defendants, as deed administrators of the Companies under the deed of company arrangement executed on 28 July 2023 (DOCA) in respect of Wiluna Mining Corporation Limited (Subject to Deed of Company Arrangement) (ACN 119 887 606) (Wiluna) and the other companies identified in the Schedule (together, the Companies) (DOCA), convene a meeting of creditors of the Companies within 10 business days from the making of these orders to consider a resolution to terminate the DOCA and a resolution that the Companies execute the AIM DOCA (the New Creditors' Meeting);

1.2. an order pursuant to section 447A of the Corporations Act that Part 5.3A of the Corporations Act is to operate in relation to the Companies as if section 445CA does not have effect, such that creditors may vote to terminate the DOCA notwithstanding that there has been no breach of the DOCA; and

1.3. an order pursuant to section 447A of the Corporations Act that Part 5.3A of the Corporations Act is to operate in relation to the Companies as if any person who was entitled to vote at the meeting of creditors of the Companies convened pursuant to s439A of the Corporations Act and held on 7 July 2023 is a creditor of the Companies and entitled to vote at the New Creditors' Meeting, (which for the avoidance of doubt does not include the Companies which shall not be permitted to vote at the New Creditors' Meeting).

2.1. an order that the DOCA be terminated pursuant to:

2.1.1. section 445D(1)(a), (b), (c), (e), (f) or (g) of the Corporations Act (each in the alternative);

2.1.2. in the alternative, section 447A(1) of the Corporations Act;

2.1.3. in the further alternative, section 90-15 of the Insolvency Practice Schedule (Corporations) (IPS) at Schedule 2 to the Corporations Act.

2.2. upon the order set out in paragraph 2.1 above taking effect, pursuant to section 447A of the Corporations Act, an order that Part 5.3A of the Corporations Act is to operate in relation to the Companies as if:

2.2.1. section 446AA(2) of the Corporations Act did not have the effect that the Companies were taken to have passed a special resolution under section 491 of the Corporations Act that the Companies be wound up voluntarily;

2.2.2. the creditors of the Companies were taken to have passed a resolution pursuant to 439A of the Corporations Act that the Companies execute the AIM DOCA;

2.3. in the alternative to paragraph 2.2, upon the order set out in paragraph 2.1 above taking effect,

2.3.1. pursuant to section 447A of the Corporations Act, an order that Part 5.3A of the Corporations Act is to operate in relation to the Companies as if section 446AA(2) of the Corporations Act did not have the effect that the Companies were taken to have passed a special resolution under section 491 of the Corporations Act that the Companies be wound up voluntarily;

2.3.2. an order pursuant to section 90-15 of the IPS that it is directed that the first defendants, as deed administrators of the Companies under the DOCA convene a meeting of creditors of the Companies within 10 business days from the making of these orders to consider a resolution that the Companies execute the AIM DOCA (the Alternate New Creditors' Meeting);

2.3.3. an order pursuant to section 447A of the Corporations Act that Part 5.3A of the Corporations Act is to operate in relation to the Companies as if any person who was entitled to vote at the meeting of creditors of the Companies convened pursuant to s439A of the Corporations Act and held on 7 July 2023 is a creditor of the Companies and entitled to vote at the Alternate New Creditors' Meeting, (which for the avoidance of doubt does not include the Companies which shall not be permitted to vote at the Alternate New Creditors' Meeting).

2.4. in the alternative to paragraphs 2.2 and 2.3, upon the order set out in paragraph 2.1 above taking effect, pursuant to section 447A of the Corporations Act, an order that Part 5.3A of the Corporations Act is to operate in relation to the Companies as if section 446AA of the Corporations Act provided for the appointment of Messrs Richard Scott Tucker and Jared Troy Palandri as Liquidators of the Companies upon termination of the DOCA.

[1] Order 2A as sought by the amended originating process filed on 18 November 2025 was quoted in the primary judgment at [19].

[2] Which are quoted in the primary judgment [19].

[3] Affidavit of Samuel Dundas made and filed on 19 December 2025 (second Dundas affidavit) [38].

[4] Plaintiffs' submissions on costs filed on 19 December 2025 (Plaintiffs' costs submissions) [9] - [10]; and second Dundas affidavit [36].

[5] Plaintiffs' minute of proposed orders filed on 19 December 2025.

[6] AIM's minute of proposed orders filed on 19 January 2026.

[7] AIM's submissions on costs filed on 19 January 2026 (AIM's costs submissions) [13].

[17] Plaintiffs' costs submissions [12]; AIM's costs submissions [63]; and Mr Jerkovic's submissions filed on 19 January 2026 [4].

[21] AIM's costs submissions [72], [73] and [74].

[22] AIM's costs submissions [77] and [78].

[23] AIM's costs submissions [79] and [80].

[25] Schedule 2 to the Corporations Act 2001 (Cth).

[27] AIM's costs submissions [81]. In this respect, Mr Jerkovic relied particularly, also, on Sino Group International Ltd v Toddler Kindy Gymbaroo Pty Ltd (in liq) [2023] FCAFC 119 (Farrell, Cheeseman & Feutrill JJ) [62] - [63].

[33] The Deed Administrators formulated the test to be applied differently by reference to Nolan v Collie [2003] VSCA 39; (2003) 7 VR 287 (Ormiston, Batt & Vincent JJA) [46], [55], [57] and [69] - [70]; ts 150 - 151. For present purposes, I have adopted the test put forward by AIM in the hearing: ts 168. I am not sure, in the result, that there is any material difference between the tests proposed or articulated by the Deed Administrators and AIM.

[37] AIM's costs submissions [83]; Mr Jerkovic's costs submissions [29(a)].

[38] AIM's costs submissions [91]; Mr Jerkovic's costs submissions [29(b)].

[39] AIM's costs submissions [92]; Mr Jerkovic's costs submissions [29(b)].

[41] AIM's costs submissions [88]; Mr Jerkovic's costs submissions [29(c)].

[45] Seventh Soh affidavit [6.6] and Attachment 'JYS-41' at page 21. The time comes from an agreed fact put to the Court by the parties by email on 3 February 2026.

[51] Senior counsel for AIM accepted, to some degree, that there was significant force in these propositions: ts 188.

[52] This was accepted, at least to some degree, by senior counsel for AIM: ts 175 and 196.

[55] Seventh Soh affidavit [6.6] and Attachment 'JYS-41' at page 21. The time comes from an agreed fact put to the Court by the parties by email on 3 February 2026.

[56] The time is taken from the agreed timeline given to the Court by email on 3 February 2026.

[57] Set out in paragraph [12] above.

[59] Plaintiffs' costs submissions [46].

[60] Plaintiffs' costs submissions [47].

[61] Plaintiffs' costs submissions [46] and [47].

[62] See the observations of Pullin J, as he then was, in Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 [22] as quoted by Hill J in North West Pilots Pty Ltd as trustee for the Port Hedland Pilots Unit Trust trading as Port Hedland Pilots v Daniel [2023] WASC 73 (S) [21].

[63] Plaintiffs' costs submissions [50].