DD Investment WA Pty Ltd v Infinite Green Energy Limited [No 3] - [2025] WASC 195

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   DD INVESTMENT WA PTY LTD -v- INFINITE GREEN ENERGY LIMITED [No 3] [2025] WASC 195
CORAM:   STRK J
HEARD:   19 MAY 2025
DETERMINED       :   19 MAY 2025
PUBLISHED           :   21 MAY 2025
FILE NO/S:   COR 26 of 2025
BETWEEN:   DD INVESTMENT WA PTY LTD
Plaintiff
AND
INFINITE GREEN ENERGY LIMITED (receivers and managers appointed) (administrators appointed)
Defendant
RICHARD SCOTT TUCKER and JARED TROY PALANDRI in their capacity as joint and several administrators of INFINITE GREEN ENERGY LIMITED (receivers and managers appointed) (administrators appointed)
First Interested Party
AXPO SERVIZI PRODUZIONE ITALIA S.p.A, a creditor of INFINITE GREEN ENERGY LIMITED (receivers and managers appointed) (administrators appointed)
Second Interested Party
AARON JOSEPH DOMINISH, CAMERON HUGH SHAW, RICHARD ALBARRAN and BRENT TREVOR-ALEX KIJURINA in their capacities as joint and several receivers and managers of INFINITE GREEN ENERGY LIMITED (receivers and managers appointed) (administrators appointed)
Third Interested Party

Catchwords:

Corporations - Application to wind up on the insolvency ground (s 459A and s 459P of the Corporations Act 2001 (Cth), relying upon s 459C(2)(a)) - Statutory demand and presumption of insolvency - Appointment of administrators before the hearing of the winding up application - Successful earlier application by the administrators for the adjournment of the winding up application - Further application by the administrators for adjournment - Application under s 440A(2) of the Corporations Act 2001 (Cth) - Whether the court is satisfied that it is in the interests of the company's creditors for the company to continue under administration rather than be wound up - Exercise of the court's inherent power to adjourn a winding up application even where the requirements of s 440(A)(2) of the Corporations Act 2001 (Cth) are not satisfied - Section 467(1)(b) of the Corporations Act 2001 (Cth) - Turns on own facts

Legislation:

Corporations Act 2001 (Cth) pt 5.3A, s 440A(2), s 459A, s 459C(2)(a), s 459P, s 467(1)(b)
Insolvency Practice Rules (Corporations) 2016 (Cth) s 75-140
Rules of the Supreme Court 1971 (WA) O 67B r 5(1)(b), O 67B r 5(3)

Result:

Application to wind up adjourned

Category: B

Representation:

Counsel:

Plaintiff	:	ML Bennett & N Ekanayake
Defendant	:	No appearance
First Interested Party	:	CK Pearce
Second Interested Party	:	C Breheny
Third Interested Party	:	RE Lennon

Solicitors:

Plaintiff	:	Bennett
Defendant	:	Edwards Mac Scovell Legal
First Interested Party	:	Blackwall Legal
Second Interested Party	:	JCL Law Partners
Third Interested Party	:	Dentons Australia

Case(s) referred to in decision(s):

Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers and Managers Appointed) (2011) 244 CLR 1
Commonwealth Bank of Australia v Begonia (1993) 11 ACLC 1075
DD Investment WA Pty Ltd v Infinite Green Energy Limited [2025] WASC 118
DD Investment WA Pty Ltd v Infinite Green Energy Limited [No 2] [2025] WASC 137
Deputy Commissioner of Taxation v JGQ Developments Pty Ltd [2018] FCA 2046
In the matter of First Netcom Pty Limited [2000] NSWSC 989
In the matter of Glenvine Pty Limited [2020] NSWSC 642
In the matter of i-Prosperity Capital Pty Ltd [2020] NSWSC 1116
IOC Australia Pty Ltd v Mobil Oil Australia Ltd (1975) 11 ALR 417
School Holdings Pty Ltd v Dayroll Pty Ltd (Administrators Apptd) [2008] NSWSC 670
TCS Management Pty Ltd v CTTI Solutions Pty Ltd [2001] NSWSC 830

STRK J:

Overview

On 17 April 2025 the application made by DD Investment WA Pty Ltd to wind up Infinite Green Energy Limited (receivers and managers appointed) (administrators appointed), was adjourned to 19 May 2025 on the application of Richard Scott Tucker and Jared Troy Palandri, who had been appointed under s 436A of the Corporations Act2001 (Cth) as joint and several voluntary administrators of Infinite Green Energy, and of its Australian subsidiaries (together, the IGE Group). For the reasons then delivered, the court was satisfied that its discretion ought be exercised to adjourn the application to wind up Infinite Green Energy to a date after the report to creditors was issued but before the second meeting of its creditors: DD Investment WA Pty Ltd v Infinite Green Energy Limited [No 2] [2025] WASC 137.
The report to creditors was issued on 15 May 2025.[1] Among other things, the administrators recorded in their report to creditors that a group of shareholders had expressed interest in participating in the recapitalisation and restructure of the IGE Group through a deed of company arrangement, and that the objectives of those shareholders were to gain back control of the IGE Group; to preserve the IGE Group as a going concern; to secure capital expenditure to spend on the Northam Solar Farm which would improve the viability of the IGE Group; to replace the board; and to issue equity to investors bringing new money (including existing shareholders). The administrators also recorded that the shareholders had sought additional time to enter discussions with new investors and key stakeholders, including the secured creditor and larger creditors.[2]
[1] Fifth affidavit of JT Palandri sworn 15 May 2025 par 9, JTP16.
[2] Fifth affidavit of JT Palandri sworn 15 May 2025, JTP16 (page 20).
The administrators also recorded in their report that as no acceptable deed of company arrangement proposal had yet been received, and due to the insolvency of the IGE Group, the administrations could not come to an end. The administrators informed creditors that in the circumstances, they proposed to utilise their statutory power (under s 75‑140 of the Insolvency Practice Rules (Corporations) 2016 (Cth)) to adjourn the second meeting of creditors unilaterally, so as to allow time for the administrators to consider and finalise negotiations and the documentation of any deed of company arrangement proposal, which they understood would take into consideration the IGE Group continuing as a going concern and provide the best return to creditors.[3]
[3] Fifth affidavit of JT Palandri sworn 15 May 2025, JTP16 (page 22).
At the adjourned hearing on 19 May 2025 the administrators sought a further adjournment of the application to wind up Infinite Green Energy to 22 July 2025, in order to allow for the voluntary administration of Infinite Green Energy to be completed in accordance with pt 5.3A of the Corporations Act, in the interests of its creditors.
As had occurred on the last occasion, the legal representative of Axpo Servizi Produzione Italia S.p.A. (a creditor of Infinite Green Energy) was granted leave to appear and was heard in support of the further adjournment. Further, leave was granted to the legal representative of Aaron Joseph Dominish, Cameron Hugh Shaw, Richard Albarran, and Brent Trevor-Alex Kijurina in their capacities as joint and several receivers and managers of Infinite Green Energy, to appear and to also be heard in support of the further adjournment.
In the end, the further adjournment was not opposed by DD Investment, however the confidentiality order sought by the administrators with respect to one of the affidavits read by counsel for the administrators in support of further adjournment was opposed. The question of what may in the end be the appropriate costs order with respect to the action was reserved, to be determined at the conclusion of the application to wind up Infinite Green Energy.
These reasons concern the application to further adjourn the application to wind up Infinite Green Energy, and the application to restrict access to an affidavit read in support of the application. These reasons need to be read with my earlier reasons in DD Investment WA Pty Ltd v Infinite Green Energy Limited [No 2].

Evidence

Affidavits previously read by DD Investment

At the hearing on 17 April 2025, in support of its application to wind up Infinite Green Energy, counsel for DD Investment had read and relied upon various affidavits. I had summarised those affidavits in DD Investment WA Pty Ltd v Infinite Green Energy Limited [2025] WASC 118 at [14] to [39].
At the hearing on 17 April 2025 counsel for DD Investment had also read a further affidavit made by Pragya Srivastava, which was affirmed on 14 April 2025 and to which Ms Srivastava attached documents marked PS‑1 to PS‑2. I summarised that affidavit in DD Investment WA Pty Ltd v Infinite Green Energy Limited [No 2] at [15] to [20]. I had regard to those affidavits and adopt the summaries contained in my earlier reasons in these reasons as if reproduced here in full.

Affidavits read by the administrators in support of further adjournment

At the hearing on 17 April 2025, in support of the first adjournment of the application to wind up Infinite Green Energy (so as to let the administration continue), counsel for the administrators read and sought to rely upon various affidavits which were summarised in DD Investment WA Pty Ltd v Infinite Green Energy Limited [No 2] at [22] to [71]. On 19 May 2025 the same affidavits were read in support of a further adjournment, and I adopt the summary of those affidavits contained in my earlier reasons in these reasons as if reproduced here in full.
In support of a further adjournment, counsel for the administrators also read two additional affidavits made by Mr Palandri, which are summarised below.

Fifth Palandri affidavit

Counsel for the administrators read the fifth affidavit made by Mr Palandri on 15 May 2025.

Report to creditors

In his fifth affidavit Mr Palandri deposed that on 15 May 2025 the administrators finalised and sent to creditors a notice convening second meetings of creditors of Infinite Green Energy and its subsidiaries, and a report prepared as required by s 75-225 of the Insolvency Practice Rules (Corporations). Mr Palandri attached to his fifth affidavit a copy of the report to creditors (which includes a copy of the notice to creditors).[4]

Progress of the administration

[4] Fifth affidavit of JT Palandri sworn 15 May 2025 par 9, JTP16.

Mr Palandri described in his fifth affidavit the progress of the administration since 17 April 2025 (when the application to wind up Infinite Green Energy was last before the court). At par 12, Mr Palandri provided an overview of the administration in the following terms:
(a)discussions are ongoing with some shareholder representatives about the key terms of a potential Shareholder DOCA Proposal;
(b)neither the Shareholder DOCA Proposal nor any other proposal for a DOCA have been put to the Administrators in final form at the date of the Report (that is, [15 May 2025]);
(c)based on our discussions with shareholder representatives, I consider that it is more likely than not that:
(i)the Shareholder DOCA Proposal will be able to be finalised and put to the Administrators so that the proposal can be put to creditors within the next three weeks; and
(ii)the Shareholder DOCA Proposal will result in the continuation of the Defendant's business as a going concern and provide a better return to creditors of the Defendant than a liquidation.
In his fifth affidavit, Mr Palandri described the discussions with shareholders and other stakeholders which he deposed grounded the opinion reproduced above.[5] In this regard, Mr Palandri deposed that during the course of the administration, he had continued to hold discussions with representatives of shareholder groups, secured creditors, and their advisors about finalising a shareholder deed of company arrangement proposal, and that the main shareholder representatives who had taken part in those discussions had all previously been involved with the business of Infinite Green Energy, but not for some time.[6]
[5] Fifth affidavit of JT Palandri sworn 15 May 2025 pars 23 - 30.
[6] Fifth affidavit of JT Palandri sworn 15 May 2025 par 25.
He further deposed that on the basis of those discussions it was his view and understanding that those shareholder representatives were still considering the structure and amount of a proposed capital raise; were still considering the best treatment of major unsecured creditors, and considered it preferable to hold those conversations and come to at least preliminary arrangements before finalising a shareholder deed of company arrangement proposal in order to avoid the risk that one or more creditors might seek to use particular leverage to obtain any better deal; and were looking to finalise those and other matters in a shareholder deed of company arrangement proposal as soon as practicable.[7]

Further adjournment

[7] Fifth affidavit of JT Palandri sworn 15 May 2025 par 29.

Further, Mr Palandri deposed that in light of the above, he had determined that:[8]
(a)the Administrators should seek a further adjournment of these proceedings, to allow the administration of the Defendant to continue; and
(b)if such an adjournment is granted, [he intended] (as chair of the Second Meetings of Creditors) to utilise [the administrators'] power under the Insolvency Practice Rules (Corporations) 2016 (Cth) (Rules) to adjourn the meetings unilaterally in order to allow additional time for the Shareholder DOCA Proposal (or any other proposal) to be finalised.
[8] Fifth affidavit of JT Palandri sworn 15 May 2025 par 14.
As to the length of the requested further adjournment, Mr Palandri in his fifth affidavit acknowledged that the administrators may not require the full additional 45 business days allowed under s 75‑140 of the Insolvency Practice Rules (Corporations) in order to reconvene the second meetings of creditors. If the shareholder deed of company arrangement proposal were to be finalised earlier, or if it were to become clear that no such proposal or other proposal would be made, he acknowledged that it would be appropriate for the administrators to reconvene the second meetings of creditors sooner. While acknowledging the same, Mr Palandri noted that in order to avoid the additional costs of potentially reconvening meetings a number of times, he intended to adjourn the meeting for up to 45 business days under s 75‑140, that is, to a date on or before 25 July 2025.

Funding arrangements

As to funding, among other things, Mr Palandri in his third affidavit had deposed to the basis of his belief that on 14 April 2025, the amounts committed by interested shareholders had reached the target amount for the funding of the administration; that as a result, the administrators intended to proceed with the proposed facility to secure funding in the amount of $750,000; and that after the finance documentation was finalised, the administrators expected that a court application would promptly be filed seeking to limit the administrators' personal liability pursuant to s 447A of the Corporations Act.[9]
[9] DD Investment WA Pty Ltd v Infinite Green Energy Limited [No 2] [64].
In his fifth affidavit, Mr Palandri described the loan documentation prepared to effect the proposed funding arrangement, noting that the funds were being advanced by a number of different shareholders, and that the lenders had appointed Tim Lester and Peter Coleman as lender representatives to manage their positions as lenders under the loans.[10]
[10] Fifth affidavit of JT Palandri sworn 15 May 2025 par 17.
As to the status of the funding arrangement, Mr Palandri deposed that:[11]
(a)the lenders have signed the loan application forms and advanced funds into Ethica Capital's trust account, in order to make the funds available to the Administrators;
(b)the loan arrangements do not become effective until the Administrators sign the loan application forms and accept the terms, and the conditions precedent set out in the common terms deed are satisfied or waived (including a condition precedent that the Administrators obtain orders under section 447A of the Corporations Act limiting their personal liability for repayment of the loan); and
(c)the funds are not to be drawn upon until the Administrators sign those loan application forms and the conditions precedent are satisfied or waived.
[11] Fifth affidavit of JT Palandri sworn 15 May 2025 par 19.
As to the current status of the funding arrangement, Mr Palandri deposed to his belief that Ethica Capital holds $705,000 in trust advanced under the loan application forms; that the administrators had not signed the loan application forms or drawn upon any of the funds; and that the administrators had not applied for orders under s 447A of the Corporations Act.[12]
[12] Fifth affidavit of JT Palandri sworn 15 May 2025 par 20.
As to the reason why the funds had not been drawn, Mr Palandri deposed that the receivers and managers (Messrs Dominish, Shaw, Albarran and Kijurina) had continued to operate the businesses of the IGE Group over which they had been appointed, such that the administrators had not incurred material trading costs since the appointment of the receivers and managers; that the other external costs of the administration had not required the administrators to draw upon those funds; and that while the administrators had accrued fees and external legal costs, the administrators had not yet paid any of those fees or costs and it was possible there may be alternative funding sources made available in either a deed of company arrangement or liquidation to cover those costs.[13]

The views of creditors

[13] Fifth affidavit of JT Palandri sworn 15 May 2025 par 21.

Mr Palandri deposed to having raised with the committee of inspection the possibility of an extension to the administration, and that support for the continuation of the administration and a deed of company arrangement had been expressed.[14] He further noted that the creditors who expressed support represented 57.67% of the creditor pool by value of Infinite Green Energy on the administrators' preliminary assessment (based on proofs of debt at the first meetings of creditors);[15] that Jonathon Chiam representing Samsung C&T Corporation had indicated that he would require further instructions but anticipated that Samsung would support a deed of company arrangement;[16] and that with the addition of Samsung, the creditors who had expressed support for a deed of company arrangement would represent 64.24% of the creditor pool by value of Infinite Green Energy on the basis described above.[17]

Sixth confidential Palandri affidavit

[14] Fifth affidavit of JT Palandri sworn 15 May 2025 par 32.

[15] Fifth affidavit of JT Palandri sworn 15 May 2025 par 34.

[16] Fifth affidavit of JT Palandri sworn 15 May 2025 par 35.

[17] Fifth affidavit of JT Palandri sworn 15 May 2025 par 35.

Counsel for the administrators read the sixth affidavit made by Mr Palandri on 19 May 2025 which was marked confidential.
In that affidavit Mr Palandri deposed to matters which the administrators maintained were confidential and commercially sensitive relating to discussions with shareholder representatives with a view to finalising a shareholder proposal for a deed of company arrangement. He also set out in more detail discussions with shareholders and other stakeholders which grounded the view he expressed at par 12(c) of his fifth affidavit (reproduced at [14] above). These reasons have been prepared so as to not disclose the substance of the confidential information before the court.
In support of a further adjournment, counsel for the administrators also relied upon the supplementary outline of submissions dated 17 May 2025 and filed on 19 May 2025.

Affidavit read by the receivers and managers

In support of a further adjournment, counsel for the receivers and managers of Infinite Green Energy read the affidavit of Mr Dominish sworn on 19 May 2025, to which Mr Dominish attached two documents marked AJD1 and AJD2.
Among other things, in his affidavit Mr Dominish deposed to the appointment of Messrs Dominish, Shaw, Albarran and Kijurina to the assets of Infinite Green Energy on 8 April 2025 by Legal Mortgage Holdings Pty Ltd, a secured creditor of Infinite Green Energy; to the significant restructuring and insolvency experience of the receivers and managers; that Legal Mortgage Holdings has an admitted claim in the administration of Infinite Green Energy for $8,555,713.39; and to his belief that Legal Mortgage Holdings was supportive of Infinite Green Energy entering into a deed of company arrangement.[18]
[18] Affidavit of AJ Dominish sworn 19 May 2025 pars 5 - 9.

Mr Dominish also described the various investigations undertaken since the appointment of the receivers and managers so as to determine the assets held and business conducted by Infinite Green Energy, and deposed that those investigations were ongoing.[19] He further deposed that since their appointment, the receivers and managers had engaged with the administrators of Infinite Green Energy to ensure its business was carried on with a view to Infinite Green Energy entering into a deed of company arrangement.[20]
[19] Affidavit of AJ Dominish sworn 19 May 2025 par 10.
[20] Affidavit of AJ Dominish sworn 19 May 2025 par 11.
At par 12 of his affidavit, Mr Dominish deposed that based upon the investigations that had been undertaken, it was his professional opinion that:
(a)if a Liquidator is appointed to the Defendant there will be a diminution in the realisable value of the Defendant's assets in comparison to the Administration of the Company continuing in accordance with Part 5.3A of the Act; and
(b)it is in the best interests of the Defendant's creditor's that the Voluntary Administration of the Defendant continue with view to the Defendant entering into a Deed of Company Arrangement.
Finally, he deposed that he was supportive of the voluntary administration of Infinite Green Energy continuing, in accordance with pt 5.3A of the Corporations Act with a view to Infinite Green Energy entering into a deed of company arrangement.[21]
[21] Affidavit of AJ Dominish sworn 19 May 2025 par 13.

Summary of relevant legal principles

In DD Investment WA Pty Ltd v Infinite Green Energy Limited [No 2] at [73] to [93], I set out an overview of the power and principles applicable to:
(a)an application to wind up a company in insolvency under s 459A of the Corporations Act; and
(b)an application to adjourn the hearing of an application to wind up a company made under s 440A(2) of the Corporations Act, or made by invoking the exercise of the court's general power inherent in its own jurisdiction to control its own processes to adjourn such a hearing, in light of the source of power under s 467(1)(b) of the Corporations Act.
I adopt that summary as if set out here in full.

Disposition

Confidentiality

The administrators applied for an order restricting access to the sixth affidavit of Mr Palandri pursuant to O 67B r 5(1)(b) of the Rules of the Supreme Court 1971 (WA) on the basis that the affidavit contained information which was confidential and commercially sensitive relating to Infinite Green Energy and its potential restructure (which was subject to negotiation, remained confidential and disclosure of which could undermine the sales process intended to be conducted in respect of Infinite Green Energy and its assets); which identified the parties who had expressed interest in acquiring certain assets of Infinite Green Energy who had not consented to being identified; and which contained details of a potential proposal for a deed of company arrangement (which was subject to negotiation and remained confidential).[22]
[22] Memorandum pursuant to O 67A r 13(2) of the Rules of the Supreme Court filed by the administrators on 19 May 2025.
Mr Palandri in his sixth affidavit deposed to the reasons why he considered the information contained in his affidavit to be confidential, commercially sensitive and appropriately restricted. Counsel for the administrators moved for an order restricting access to that affidavit in the terms of their minute of proposed orders dated 16 May 2025, which contemplated restriction on the basis that access would be limited to the court, to the administrators and their solicitors, and subject to the provision of an undertaking in the form promoted, to counsel for and solicitors for DD Investment and potentially to other interested parties.
Counsel for DD Investment opposed the making of a restriction order as to the sixth affidavit of Mr Palandri. In short, it was submitted that restriction of access to that affidavit would reduce the possibility of Infinite Green Energy being restructured on the best possible terms for creditors (that is, by a transparent process promoting competitive bids that would potentially improve creditor outcomes); and in any event, details of the potential proposal for a deed of company arrangement appeared to have already been provided to DD Investment.[23]
[23] ts 183 - 184 (19 May 2025).
After hearing counsel, and having considered Mr Palandri's sixth affidavit, I was satisfied that it contained what appeared to be confidential and commercially sensitive information, including Mr Palandri's preliminary observations and assessment as to potential restructuring options. On balance, I considered that it was appropriate to restrict access to it.
I made an order pursuant to O 67B r 5(1)(b) and r 5(3) of the Rules of the Supreme Court restricting access to the sixth affidavit of Mr Palandri until further order, which affidavit was only to be accessed by the court, the administrators and their solicitors, subject to a redacted version of the affidavit being made available for inspection by DD Investment and its legal representatives.
Save for redacting certain names, the part of Mr Palandri's sixth affidavit in which he deposed to the reasons why he considered the information contained therein to be confidential, commercially sensitive and appropriately restricted, would be accessible to DD Investment.[24] If after considering the redacted document (including Mr Palandri's evidence as to commercial sensitivity), DD Investment maintains that access to Mr Palandri's sixth affidavit ought be unrestricted, the orders made contemplate there being liberty to apply.

Insolvency application

[24] Order 2 of the orders made on 19 May 2025, reproduced at sch A to these reasons.

For the reasons outlined in DD Investment WA Pty Ltd v Infinite Green Energy Limited [No 2] at [97] to [102], and while continuing to acknowledge that the court retains the discretion not to order a winding up,[25] I was satisfied that on the papers filed, DD Investment continued to have a strong case for the winding up of Infinite Green Energy.
[25] Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers and Managers Appointed) (2011) 244 CLR 1 [32], as was noted in DD Investment WA Pty Ltd v Infinite Green Energy Limited [No 2] [74].
As was noted in my earlier reasons, evidence must be adduced on behalf of a defendant company for it to rebut the presumption of insolvency, and in the absence of such evidence, the presumption of insolvency will not have been rebutted.[26]
[26] DD Investment WA Pty Ltd v Infinite Green Energy Limited [No 2] [77], [101]. See also Commonwealth Bank of Australia v Begonia (1993) 11 ACLC 1075, 1081.
The further evidence available to the court on 19 May 2025 as to the solvency of Infinite Green Energy was that contained in the administrators' report to creditors, a copy of which was attached to Mr Palandri's fifth affidavit.[27] The report makes plain that the administrators had formed the view that as Infinite Green Energy was insolvent, the administration could not come to an end without either Infinite Green Energy entering into a deed of company arrangement or liquidation.[28]
[27] Fifth affidavit of JT Palandri sworn 15 May 2025, JTP16.
[28] Fifth affidavit of JT Palandri sworn 15 May 2025, JTP16 (page 22).
As was noted at pt 7.1 of the report to creditors, the administrators' investigations had among other things focused upon determining the insolvency date of Infinite Green Energy. At pt 7.5.2 of the report to creditors, the administrators' expressed the their preliminary view in the following terms:[29]
Our preliminary view is that the Companies became insolvent on 24 January 2025 when the statutory demand was served on [Infinite Green Energy] by [DD Investment], as the judgement debt was due and payable at that time. However, given that the Companies may have breached section 286 of the Act as early as 31 December 2024, by not maintaining adequate books and records, a liquidator can rely on the presumption of insolvency from this date in accordance with Division 2 of Part 5.7B of the Act.
In addition to the above, we provide a summary of the key indicators which also attribute to the date of insolvency below:
·    Reliance on capital raisings and debt funding for working capital;
·    Negative EBITDA for the financial year ended 30 June 2022 and all subsequent financial years, and up to 31 October 2024 were $8.6 million, $25.3 million, $15.7 million and $0.6 million, respectively;
·    Current ratio was below 1 and negative working capital from financial year ending 30 June 2022 to the date of our appointment, indicating illiquidity;
·    Negative working capital position from financial years ended 30 June 2022 through to 30 June 2024.
·    Suffered poor cashflow from financial year ended 30 June 2024; and
·    Negative net asset position from financial year ended 30 June 2024.
[29] Fifth affidavit of JT Palandri sworn 15 May 2025, JTP16 (page 51).
In support of a further adjournment, counsel for the administrators had also drawn the court's attention to that part of the report to creditors where the administrators had estimated a liquidation return to unsecured creditors of between nil and 8.5c in the dollar, with any possibility of a return contingent on highly uncertain recovery proceedings against various parties, some of whom are located overseas.[30]

Application to adjourn

Section 440A(2) of the Corporations Act

[30] Administrators' supplementary outline of submissions filed 19 May 2025 par 14; fifth affidavit of JT Palandri sworn 15 May 2025, JTP16 (supporting analysis at pages 60 - 64).

As Infinite Green Energy remains in administration, s 440A(2) of the Corporations Act continues to have application.
I accepted that the administrators had continued to undertake a significant amount of work; without having conducted a formal vote, creditors representing a majority in value of the provable claims against Infinite Green Energy had provided their express support for the continuation of the administration; and there was evidence before the court which supported a finding that the continuation of the administration of Infinite Green Energy may result in a better outcome for creditors than liquidation.
Counsel for the administrators observed that while there is a significant volume of first instance authority as to s 440A(2) of the Corporations Act, there is a lack of consistency in those authorities about the extent of certainty needed in order to satisfy the requirements of s 440A(2) as to whether the administration would result in a better outcome for creditors than liquidation.[31]
[31] Administrators' supplementary outline of submissions filed 19 May 2025 par 18(a). In support of the first adjournment of the application, counsel for the administrators had particularly referred to the observations made in TCS Management Pty Ltd v CTTI Solutions Pty Ltd [2001] NSWSC 830; In the matter of First Netcom Pty Limited [2000] NSWSC 989 [9] ‑ [10]; In the matter of i-Prosperity Capital Pty Ltd [2020] NSWSC 1116; and In the matter of Glenvine Pty Limited [2020] NSWSC 642 [3].
I proceeded cognisant that considerations beyond mere quantum may be relevant to take into account in determining what is in the interests of the creditors and whether it is established that an adjournment may be said to be in the creditors' interests.[32] That said, as was the case when the earlier adjournment was pressed, when regard was had to all of the evidence filed, I did not consider the administrators to have discharged their onus so as to be entitled to an adjournment under s 440A(2) of the Corporations Act. Again, while I considered that there was no doubt that the administrators had acted with appropriate diligence and haste, had undertaken appropriate investigations within the time available, and having given weight to the opinions expressed by Mr Palandri and Mr Dominish in the context of their insolvency and restructuring experience, on the evidence available I did not consider it possible to be satisfied that it is in the interests of Infinite Green Energy's creditors for it to continue under administration, rather than be wound up, as distinct from satisfaction that it may be so.
[32] TCS Management Pty Ltd v CTTI Solutions Pty Ltd [18].
No proposal for a deed of company arrangement had been made in final form. The administrators recorded in their report to creditors that the shareholders had sought additional time to enter discussions with new investors and key stakeholders, including the secured creditor and larger creditors.[33] Counsel for the administrators properly acknowledged that there is no certainty about what would be provided for in a shareholder proposed deed of company arrangement, or other deed of company arrangement proposal.[34]
[33] Fifth affidavit of JT Palandri sworn 15 May 2025, JTP16 (page 20).
[34] Administrators' supplementary outline of submissions filed 19 May 2025 par 15.
Consistent with the approach adopted at [109] of DD Investment WA Pty Ltd v Infinite Green Energy Limited [No 2], I did not accept for the purposes of s 440A(2) that in all of the circumstances it is in the interests of Infinite Green Energy's creditors for it to continue under administration rather than be wound up, because the continuation of the administration preserved the prospect of a restructure which may result (or indeed, has a real prospect of resulting) in a better return to creditors than a liquidation.

The court's general power inherent in its own jurisdiction

While I again found that s 440A(2) of the Corporations Act was not enlivened, in all of the circumstances, I was persuaded that it was appropriate to exercise discretion so as to grant an adjournment of the application to wind up Infinite Green Energy.
I was cognisant that the administration was no longer at a very early phase, and that Infinite Green Energy was presumed to be insolvent by operation of the unanswered statutory demand. Further, the authorities show that as a general rule, a creditor who cannot obtain payment is, as between the creditor and the company that owes the debt, entitled to a winding up order as a matter of right.[35] Further, as described in my earlier reasons, there remain matters of concern which might properly be investigated by a liquidator.[36]
[35] DD Investment WA Pty Ltd v Infinite Green Energy Limited [No 2] [113], citing Deputy Commissioner of Taxation v JGQ Developments Pty Ltd [2018] FCA 2046 [24], and IOC Australia Pty Ltd v Mobil Oil Australia Ltd (1975) 11 ALR 417, 427.
[36] DD Investment WA Pty Ltd v Infinite Green Energy Limited [No 2] [115] - [117].
However, in contrast to the position taken on 17 April 2025, DD Investment did not oppose the further adjournment of the winding up application pressed on behalf of the administrators. The position adopted by DD Investment was a matter which weighed heavily in favour of the adjournment.
Further, I weighed in the balance the evidence of Mr Dominish, and that the receivers and managers were supportive of the voluntary administration of Infinite Green Energy continuing, in accordance with pt 5.3A of the Corporations Act with a view to Infinite Green Energy entering into a deed of company arrangement.[37] The continued co‑operation and co‑ordination with the receivers and managers and controllers appointed by Legal Mortgage Holdings, and the securing of funding for the purposes of the administration, remain matters key to the prospect of a better outcome for creditors through continued administration.
[37] Affidavit of AJ Dominish sworn 19 May 2025 par 13.
I also had regard to and weighed in the balance the further evidence of Mr Palandri as to the prospects of a restructure via a deed of company arrangement which might provide a better return to creditors.
As was highlighted on behalf of the administrators, before the court was the unchallenged evidence of the administrators that in their opinion, it is more likely than not that a shareholder proposal for a deed of company arrangement will be submitted; and that such a proposal will provide a better return for creditors than liquidation, and will allow Infinite Green Energy's business to continue as a going concern, satisfying the primary aim of pt 5.3A of the Corporations Act.
That opinion was supported by Mr Palandri's evidence as to discussions which were ongoing with certain shareholders as to a shareholder proposal for a deed of company arrangement.[38] I gave weight to Mr Palandri's evidence as to the extent and status of those discussions.[39]
[38] Administrators' supplementary outline of submissions filed 19 May 2025 par 15; fifth affidavit of JT Palandri sworn 15 May 2025 pars 12 - 15.
[39] Administrators' supplementary outline of submissions filed 19 May 2025 par 15(a); fifth affidavit of JT Palandri sworn 15 May 2025 pars 12 - 15.
Mr Palandri also deposed that based on the administrators' discussions with shareholder representatives, he considered that it was more likely than not that a shareholder deed of company arrangement proposal would be able to be finalised and put to the administrators so that it could be put to creditors within the next three weeks; and that such a proposal would result in the continuation of the business of Infinite Green Energy as a going concern and provide a better return to creditors than liquidation.[40] That evidence weighed heavily in favour of the exercise of discretion to adjourn.
[40] Fifth affidavit of JT Palandri sworn 15 May 2025 par 12.
As to the potential for a better return to creditors than a liquidation scenario, I also noted that the investor pack circulated by the administrators based on their discussions with the shareholder representatives, anticipated a 15 cents in the dollar return to unsecured creditors, well in excess of both the low‑end nil return and even the high‑end 8.5 cents in the dollar maximum expected return in liquidation.[41]
[41] Administrators' supplementary outline of submissions filed 19 May 2025 par 15(b); fifth affidavit of JT Palandri sworn 15 May 2025 par 26, JTP16 (page 213).
I also had regard to Mr Palandri's evidence as to the role the administrators would play in seeking to ensure the workability of a deed of company arrangement proposal (which, in order to gain the administrators' support and prevent the risk of a s 445D order, would require a better return to unsecured creditors than liquidation).[42] It was Mr Palandri's evidence that in his experience, the more complex the affairs of a company, the more involved administrators must be in discussions with potential proponents in respect of a possible deed of company arrangement proposal.[43] Mr Palandri is an experienced insolvency practitioner and his evidence in this regard carried considerable weight.
[42] Administrators' supplementary outline of submissions filed 19 May 2025 par 15(a); fifth affidavit of JT Palandri sworn 15 May 2025 par 23.
[43] Fifth affidavit of JT Palandri sworn 15 May 2025 par 23.
Counsel for the administrators also submitted that the cost to creditors of allowing the administration of Infinite Green Energy to continue for an additional period was unlikely to be a factor weighing against an adjournment, because the administrators were not incurring material trading costs (the key business assets being in the possession of the receivers and managers), and while it is possible the receivers may be incurring trading costs which will attach to the assets over which the receivers and managers were appointed, it was submitted that that was a continuing risk whether or not the court were to appoint a liquidator, because the receivers and managers would be entitled to continue to trade the business in any event.[44] I had regard to the same.
[44] Administrators' supplementary outline of submissions filed 19 May 2025 par 17.
Finally, as was emphasised by counsel for the administrators, I noted that without having conducted a formal vote, creditors representing a majority in value of the provable claims against Infinite Green Energy had provided their express support for the continuation of the administration.[45]
[45] Administrators' supplementary outline of submissions filed 19 May 2025 par 18(d); fifth affidavit of JT Palandri sworn 15 May 2025 pars 32 - 35.

Having regard to all of the matters outlined above, despite the administration no longer being in an early phase, I was satisfied that discretion ought be exercised to adjourn the hearing of the application to wind up Infinite Green Energy. The application was adjourned until after a supplementary report to creditors is to be issued but before the second meeting of creditors of Infinite Green Energy is resumed, which I considered to be an adjournment on grounds not extraneous to the scope and purpose of the Corporations Act, but rather, consistent with that scope and purpose. The further adjournment to such a date would permit a better informed analysis of the critical inquiry.[46] In this regard, although the administration was no longer at a very early phase, the exercise of discretion to adjourn fulfilled the same purpose as it did on 17 April 2025.
[46] DD Investment WA Pty Ltd v Infinite Green Energy Limited [No 2] [92]; School Holdings Pty Ltd v Dayroll Pty Ltd (Administrators Apptd) [2008] NSWSC 670 [6].

Orders and costs

The orders made on 19 May 2025 are reproduced at sch A to these reasons.
As to costs I note that on 8, 15 and 17 April 2025 I reserved the costs associated with those attendances before the court. The costs of the hearing on 19 May 2025 and the further adjournment were also reserved without objection.
For completeness I note that the position of the administrators as to the appropriate costs outcome was summarised in my previous reasons;[47] and in advance of the 19 May 2025 hearing, DD Investment foreshadowed that in the circumstances of how the voluntary administration came about, it will seek that its costs should be paid as a priority in any deed of company arrangement proposed to creditors or any subsequent liquidation.[48] For the benefit of creditors and stakeholders, I have recorded the respective positions adopted to date with respect to costs, but make no finding with respect to the same.

[47] DD Investment WA Pty Ltd v Infinite Green Energy Limited [No 2] [143] - [144].

[48] DD Investment's submissions in relation to the costs of the winding up application filed 19 May 2025 par 1.

Sch A - Orders made on 19 May 2025

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CR
Associate to the Honourable Justice Strk
21 MAY 2025