Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 7)

Buurabalayji Thalanyji Aboriginal Corporation (BTAC) was subject to a special administration under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). Onslow Salt Pty Ltd (Onslow Salt) had commenced proceedings against BTAC. A special administrator was appointed to BTAC and initially consented to the continuation of the proceedings. However, the special administrator later withdrew that consent, leading to the current dispute. The central issues were whether the consent could be withdrawn and whether leave should be granted to continue the proceedings against BTAC.

The court addressed the issue of whether the special administrator's consent to the continuation of proceedings could be withdrawn. The court found that the Corporations Act 2001 (Cth) did not impose any limit on the time within which an administrator must make a decision regarding proceedings against the company. The court held that the withdrawal of consent would prejudice those with whom the corporation was engaged in litigation. Therefore, the withdrawal of consent was invalid, and the proceedings could continue. Additionally, the court considered the factors for granting leave to continue proceedings against an Aboriginal corporation under special administration, as outlined in Re Senvion GmbH (No 2) [2019] FCA 1732.

The court dismissed BTAC's application for a stay of proceedings and granted leave for the proceedings to continue. The court also noted that the cross-claims would be heard in the last quarter of the year, with costs reserved. The court concluded that the withdrawal of consent was invalid and that there should be leave to proceed with the cross-claims, but that costs should be reserved.

The court made the following orders: (1) The Buurabalayji Thalanyji Aboriginal Corporation’s application for a stay of proceedings be dismissed; (2) Leave is granted for the proceedings to continue pursuant to s 440D(1)(b) of the Corporations Act 2001 (Cth); (3) Within 14 days of the date of these orders, the parties are to provide the Court with their available dates for a five day hearing of the cross-claims for the months of September to November 2020; (4) The matter be listed for a case management hearing by telephone on a date to be advised by the Court, but not before Thursday, 14 May 2020; (5) Costs of the applications be reserved.