Ford, in the matter of Ten Sixty Four Limited

The Administrators of Ten Sixty Four Limited applied to the Federal Court for an extension of the convening period for the second meeting of creditors under section 439A of the Corporations Act 2001 (Cth). The Company, incorporated in 2002 and listed on the ASX, is part of a larger group of companies engaged in gold mining and exploration across Australia and South East Asia. The dispute primarily revolves around the ownership of shares in certain subsidiaries and the value of these shares, particularly those in the Philippines, which are subject to a contentious dispute in the Filipino courts. The Administrators argued that an extension was necessary to explore potential sales or restructures, investigate the Company's rights in its offshore subsidiaries, and formulate final opinions to report to creditors.

The court was required to determine whether the extension was warranted based on the realistic prospect of a transaction that avoids liquidation, the need for further investigation of the Company’s rights in its offshore subsidiaries, the potential necessity of taking further steps overseas to enforce those rights, the timeframe required for exploring potential sales or restructures, and whether third parties would be prejudiced by the extension. The court also needed to consider whether the proposed six-month extension was realistic and if there were any objections from creditors.

The court found that the extension was justified on the basis that there was a realistic prospect of a transaction that avoids liquidation. The Company’s interests in its subsidiaries had value, and the Administrators had preliminary inquiries suggesting genuine interest in sales, restructures, and recapitalisations. The Administrators needed additional time to obtain foreign legal advice and potentially seek cross-border recognition or foreign court assistance. Exploring potential sales or restructures, particularly given the complexity and overseas nature of the Company’s assets, would take several months. The Administrators also needed more time to formulate their report to creditors, given the recent replacement of the board of directors and the complexity of the Group’s intercompany affairs. The court accepted that third parties would not be prejudiced by the extension, and no objections had been raised.

The court made orders extending the convening period for the second meeting of creditors to 29 January 2024. The Administrators were required to notify creditors of the extension and these orders. The court also permitted notices to creditors to be given electronically where possible, in line with common practice to save costs and time. The Administrators’ costs of the application were declared costs in the administration of the Company, and liberty to apply to discharge or modify these orders was granted to any person with a sufficient interest.