In the Matter of Globaltech Corporation Pty Ltd (Subject To Deed of Company Arrangement) [No 3]
[2024] WASC 390
•22 OCTOBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: IN THE MATTER OF GLOBALTECH CORPORATION PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) [No 3] [2024] WASC 390
CORAM: STRK J
HEARD: 8 OCTOBER 2024
DELIVERED : 8 OCTOBER 2024
PUBLISHED : 22 OCTOBER 2024
FILE NO/S: COR 75 of 2024
MATTER: IN THE MATTER OF GLOBALTECH CORPORATION PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT)
BETWEEN: ROBERT CONRY BRAUER as joint and several administrator of GLOBALTECH CORPORATION PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT)
Applicant/First named First Plaintiff
SHAUN ROBERT FRASER as joint and several administrator of GLOBALTECH CORPORATION PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT)
Applicant/Second named First Plaintiff
GLOBALTECH CORPORATION PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT)
Applicant/Second Plaintiff
IMDEX LTD
Interested Party
Catchwords:
Corporations - Deed administrators - Application for leave under s 444GA(1)(b) of the Corporations Act 2001 (Cth) for the transfer of shares to effect a deed of company arrangement - Whether transfer would unfairly prejudice the interests of members of the company - Turns on own facts
Legislation:
Corporations Act 2001 (Cth)
Result:
Application granted
Category: B
Representation:
Counsel:
| Applicant/First named First Plaintiff | : | KM deKerloy & A Parvez |
| Applicant/Second named First Plaintiff | : | KM deKerloy & A Parvez |
| Applicant/Second Plaintiff | : | KM deKerloy & A Parvez |
| Interested Party | : | PJ Tydde |
Solicitors:
| Applicant/First named First Plaintiff | : | Clayton Utz |
| Applicant/Second named First Plaintiff | : | Clayton Utz |
| Applicant/Second Plaintiff | : | Clayton Utz |
| Interested Party | : | Gilbert & Tobin |
Cases referred to in decision:
Anderson, in the matter of NT Port and Marine Pty Ltd (subject to deed of company arrangement) (No 3) [2024] FCA 905
Australasian Memory Pty Ltd v Brien [2000] HCA 30; (2000) 200 CLR 270
Brash Holdings Ltd (Administrator Appointed) v Katile Pty Ltd [1996] 1 VR 24
Cawthorn v Keira Constructions Pty Ltd (1994) 13 ACSR 337
Chalmsbury Nominees Pty Ltd v Alita Resources Limited (receivers and managers appointed) (subject to deed of company arrangement) [2023] WASC 97
Forth v R Developments Pty Ltd [2019] FCA 1004
In the matter of BCD Resources NL (subject to deed of company arrangement) [2018] NSWSC 1605
In the matter of Globaltech Corporation Pty Ltd (administrators appointed) [2024] WASC 196
In the matter of Globaltech Corporation Pty Ltd (administrators appointed) [No 2] [2024] WASC 259
In the matter of Oroton Group Ltd (Subject to Deed of Company Arrangement); Application of Strawbridge and Kanevsky [2018] NSWSC 1213
In the matter of Paladin Energy Ltd (Subject to Deed of Company Arrangement) [2018] NSWSC 11
Lewis, in the matter of Diverse Barrel Solutions Pty Ltd [2014] FCA 53
Lombe, in the matter of Bosnjak Holdings Pty Ltd [2005] FCA 275; (2005) 53 ACSR 8
Park, in the matter of Collection House Ltd (Subject to a Deed of Company Arrangement) [2022] FCA 1244
Re Centennial Mining Limited (subject to deed of company arrangement) [2019] WASC 441
Re Smith (as joint and several administrators of Catalano Seafood Ltd) (subject to a deed of company arrangement) (administrators appointed) [2024] WASC 99
Strawbridge, Re Virgin Australia Holdings Ltd (administrators appointed) (No 9) [2020] FCA 1652; (2020) 148 ACSR 648
Tucker, in the matter of Black Oak Minerals Ltd (Subject to a Deed of Company Arrangement) (in liq) [2019] FCA 293; (2019) 134 ACSR 472
STRK J:
Introduction
Robert Conry Brauer and Shaun Robert Fraser are the joint and several deed administrators of Globaltech Corporation Pty Ltd (subject to deed of company arrangement). The deed of company arrangement (DOCA) was executed on 31 July 2024 in substantively the terms of a revised DOCA proposal that was promoted by Imdex Ltd. The DOCA requires the deed administrators to obtain court orders securing the grant of leave to transfer Globaltech Corporation's shares to Imdex Ltd (or its nominee) pursuant to s 444GA(1)(b) of the Corporations Act 2001 (Cth).
The proceeding known as COR 75 of 2024 has been the vehicle for the determination of a number of questions that have arisen in the course of the external administration of Globaltech Corporation. By an application made by interlocutory process filed on 2 September 2024, the deed administrators sought leave pursuant to s 444GA(1)(b) of the Corporations Act to transfer all of the existing shares in Globaltech Corporation to Imdex Ltd in satisfaction of a condition of the DOCA.
A number of directions were made on 4 September 2024 which included a direction that the deed administrators were to provide to all members (as defined in the Corporations Act) of Globaltech Corporation; creditors of Globaltech Corporation; and the Australian Securities and Investments Commission (ASIC), notice of the interlocutory process and the final hearing, together with a copy of the interlocutory process in the manner prescribed.
A direction was also made that any person who wished to be heard in relation to the interlocutory process was to file and serve a notice of appearance (Form 4) by no later than 19 September 2024.
Imdex Ltd filed a notice of appearance, and was heard in support of the orders promoted on behalf of the deed administrators.
After hearing counsel, I was satisfied that it was appropriate to grant the leave sought. These are my reasons.
Evidence relied upon
At the hearing of the application, counsel for the deed administrators read seven affidavits that had been filed in the proceeding.
The first was the affidavit of Mr Brauer sworn on 8 May 2024, at a time when Mr Brauer and Mr Fraser were the joint and several administrators of Globaltech Corporation. Mr Brauer's first affidavit was made in support of the originating process filed on 8 May 2024 by which the administrators had applied to extend the convening period as defined in s 439A(5)(b) of the Corporations Act as it applied to Globaltech Corporation. Mr Brauer attached to his first affidavit documents marked RCB1 to RCB6.
The second was the affidavit of Mr Brauer sworn on 16 May 2024, also at a time when Mr Brauer and Mr Fraser were the joint and several administrators of Globaltech Corporation. Mr Brauer's second affidavit was made in support of an interlocutory process filed on 17 May 2024 in the proceeding known as COR 75 of 2024 by which the administrators sought various orders. In particular, they sought to limit their personal liability under a funding deed dated 14 May 2024 between Veracio Ltd as lender and the administrators as borrowers, such that any liability be solely limited to the assets of Globaltech Corporation without recourse to the administrators personally beyond those assets. Mr Brauer attached to his second affidavit one document marked RCB7 (which was a copy of the relevant funding deed).
The third and fourth affidavits were those sworn by Mr Fraser on 3 July 2024 in Mr Fraser's capacity as a joint and several administrator of Globaltech Corporation. Mr Fraser attached documents marked SRF‑1 to SRF‑15 to his first affidavit, and documents marked SRF‑C1 and SRF‑C2 to his second affidavit.
Mr Fraser's affidavits were filed in opposition to an application made in COR 75 of 2024 on an urgent basis by Gordon Henderson Stewart and Rhoda Stewart as trustees of The Grampian Trust. While not their only complaint, Gordon and Rhoda Stewart complained that the administrators are not free from apprehended bias and sought from the court their removal.
These affidavits, prepared for use in support of earlier applications, were read at the hearing of this application to provide context.[1]
[1] ts 227 - 229 (8 October 2024).
At the time Mr Fraser's second affidavit was filed, the administrators applied for an order restricting access to it pursuant to the Rules of the Supreme Court 1971 (WA) O 67B r 5(1)(b) on the basis that the affidavit contained information and documents that were commercially sensitive and subject to confidentiality obligations. I was satisfied that Mr Fraser's second affidavit contained confidential information, and it was appropriate to restrict access to it. An order was made restricting access to Mr Fraser's second affidavit subject to the terms of that order.[2] These reasons have been prepared so as to not disclose the substance of the confidential information before the court.
[2] Orders 1 - 3 of the orders made on 5 July 2024 pursuant to the Rules of the Supreme Court O 67B r 5, as was recorded in In the matter of Globaltech Corporation Pty Ltd (administrators appointed) [No 2] [2024] WASC 259 [32] - [33].
The fifth affidavit read was the affidavit of Mr Brauer sworn on 2 September 2024 in his capacity as a joint and several deed administrator of Globaltech Corporation in support of this application. Mr Brauer attached to his affidavit documents marked RCB8 to RCB19.
The sixth affidavit was the affidavit of Mr Brauer sworn on 4 October 2024, also made in support of this application and to which Mr Brauer attached documents marked RCB20 to RCB29.
The seventh was the affidavit of Adam Anthony Myers sworn on 4 October 2024, to which Mr Myers attached one document marked AAM1. Mr Myers is a partner of BDO Australia. He deposed that on 2 September 2024 he was briefed by Clayton Utz, the deed administrators' solicitors, to prepare an independent expert report for use in this application. The document attached to his affidavit was the expert report dated 3 October 2024.
There was no interested party that required any of the deponents to submit themselves to cross‑examination on the content of their respective affidavits.
At the hearing of the application, counsel for the deed administrators also relied upon a written outline of submissions filed in support of the application on 4 October 2024, and I had regard to the same.
Background to the application
Set out below is an overview of the background to the application. It draws from the summary contained in the written outline of submissions filed in support of the application and ought be read with the reasons for decision that were delivered in the course of the external administration of Globaltech Corporation: In the matter of Globaltech Corporation Pty Ltd (administrators appointed); and In the matter of Globaltech Corporation Pty Ltd (administrators appointed) [No 2].[3]
[3] In the matter of Globaltech Corporation Pty Ltd (administrators appointed) [2024] WASC 196; and In the matter of Globaltech Corporation Pty Ltd (administrators appointed) [No 2].
Globaltech Corporation was incorporated in Western Australia on 23 April 1999 and designs, develops and manufactures exploration instruments, analysis software, real-time remote monitoring systems and data analytics for global mining and exploration operations. Its primary asset is the intellectual property in mining technology that it developed. For the year ending 30 June 2022 Globaltech reported revenue of $8 million, and for the year ending 30 June 2023 revenue of $4.4 million.[4]
[4] First affidavit of RC Brauer sworn 8 May 2024, RCB-6 (page 62).
On or about 31 October 2013 Globaltech Corporation entered into an equipment distribution agreement with Boart Longyear Australia Pty Ltd, pursuant to which that entity agreed to purchase certain products and services from Globaltech Corporation.[5] Boart Longyear Australia Pty Ltd was a wholly owned subsidiary of Boart Longyear Limited.
[5] In the matter of Globaltech Corporation Pty Ltd (administrators appointed) [No 2] [77].
In 2015 Votraint No 1609 Pty Ltd (a wholly owned subsidiary of Boart Longyear Limited) acquired 35% of the issued capital of, and became the principal shareholder in, Globaltech Corporation. From about that time, entities controlled by Boart Longyear Limited became Globaltech Corporation's principal customers.[6]
[6] In the matter of Globaltech Corporation Pty Ltd (administrators appointed) [No 2] [78].
On 1 January 2016 the equipment distribution agreement was amended when the parties entered into the 'Amended and Restated Equipment Distribution Agreement'.[7]
[7] In the matter of Globaltech Corporation Pty Ltd (administrators appointed) [No 2] [79].
On 1 July 2018 Votraint No 1609 Pty Ltd acquired an additional 11.9% of the issued share capital in Globaltech Corporation, increasing its shareholding to 51.7% and obtaining control of Globaltech Corporation.[8]
[8] In the matter of Globaltech Corporation Pty Ltd (administrators appointed) [No 2] [84].
On 30 September 2021 Boart Longyear Group Ltd (Ontario Corporation No. 2854330 and ARBN 652 848 103) acquired all of the issued shares in Boart Longyear Limited (ACN 123 052 728) and replaced Boart Longyear Limited as the holding company of the Boart Longyear corporate group listed on the ASX.[9]
[9] In the matter of Globaltech Corporation Pty Ltd (administrators appointed) [No 2] [94].
Veracio Ltd is another wholly owned subsidiary of Boart Longyear Group Ltd.[10]
[10] In the matter of Globaltech Corporation Pty Ltd (administrators appointed) [No 2] [106].
Votraint No 1609 Pty Ltd gradually increased its shareholding in Globaltech Corporation to approximately 58%, and then transferred its shareholding in Globaltech Corporation to Veracio Ltd.[11]
Proceedings involving Globaltech Corporation
[11] In the matter of Globaltech Corporation Pty Ltd (administrators appointed) [No 2] [107].
Globaltech Corporation had been involved in a number of legal proceedings (either as plaintiff or defendant), in Australia and Canada, with various members of the Imdex group of companies.[12]
[12] First affidavit of RC Brauer sworn 8 May 2024 par 15; third affidavit of RC Brauer sworn 2 September 2024 par 18.
On 26 May 2023 a freezing order was made in relation to the assets of Globaltech Corporation on the application of Australian Mud Company Pty Ltd,[13] and on 7 March 2024, judgment was entered in the Federal Court of Australia in favour of Australian Mud Company Pty Ltd and Reflex Instruments Asia Pacific Pty Ltd (both members of the Imdex group of companies), against Globaltech Corporation in the amount of about $10.3 million.[14] There was also an additional claim awarded in favour of Australian Mud Company Pty Ltd and Reflex Instruments Asia Pacific Pty Ltd which was subject to an appeal and where a decision had been reserved.[15]
[13] First affidavit of RC Brauer sworn 8 May 2024 par 16, RCB4; second affidavit of RC Brauer sworn 16 May 2024 par 7(f).
[14] First affidavit of RC Brauer sworn 8 May 2024 pars 14(a), 15 - 16.
[15] Third affidavit of RC Brauer sworn 2 September 2024, RCB10 (page 141).
After the judgment debt was awarded against Globaltech Corporation, Australian Mud Company Pty Ltd and Reflex Instruments Asia Pacific Pty Ltd issued a statutory demand to Globaltech Corporation seeking payment on 25 March 2024, which Globaltech Corporation was unable to pay. The joint and several administrators recorded in their report to creditors that they understood that, as a result, the directors of Globaltech Corporation resolved to appoint administrators.[16]
[16] Third affidavit of RC Brauer sworn 2 September 2024, RCB10 (page 141).
On 1 April 2024 Gordon Henderson Stewart and Rhoda Stewart as trustees of The Grampian Trust (among others) commenced an oppression proceeding in the Federal Court of Australia against Veracio Ltd. Globaltech Corporation was named as the second defendant to that proceeding.[17]
Appointment of external administrators
[17] In the matter of Globaltech Corporation Pty Ltd (administrators appointed) [No 2] [109].
After forming the opinion that Globaltech Corporation was, or was likely to become, insolvent, on 12 April 2024 the directors of Globaltech Corporation resolved to appoint Mr Brauer and Mr Fraser as the joint and several administrators of Globaltech Corporation.[18]
Extension of convening period & application for removal of the external administrators
[18] First affidavit of RC Brauer sworn 8 May 2024 par 2.
By an order made by the Master on 10 May 2024, the convening period of the second meeting of creditors as defined in s 439A(5)(b) of the Corporations Act as it applied to Globaltech Corporation was extended by a period of eight weeks to 8 July 2024 (which was further extended to 18 July 2024 by an order made on 5 July 2024).
The further extension was necessitated by the urgent application filed by Gordon and Rhoda Stewart as trustees of The Grampian Trust on 27 June 2024, through which they sought the removal of Mr Brauer and Mr Fraser as the joint and several administrators of Globaltech Corporation on the basis that they were not free from apprehended bias. The application was ultimately dismissed.[19]
Second meeting of creditors
[19] Order 1 of the orders made on 17 July 2024, for the reasons published in In the matter of Globaltech Corporation Pty Ltd (administrators appointed) [No 2].
The notice of meeting and the administrators' report to creditors for the purposes of the second meeting were issued on 18 July 2024.[20]
[20] Third affidavit of RC Brauer sworn 2 September 2024 par 8, RCB10.
In that report, the administrators recorded that as at the date of their appointment, Globaltech Corporation had recorded total assets on its balance sheet of $14.3 million which was comprised of cash, trade receivables, inventory and intangibles (largely product patents and knowhow); whereas the book value of liabilities recorded on its balance sheet as at April 2024 was about $19.9 million. It was also recorded that based on the information available to the administrators, creditor claims could increase to about $28.5 million subject to the receipt of proofs of claim from creditors.[21]
[21] Third affidavit of RC Brauer sworn 2 September 2024, RCB10 (page 141).
Before the second meeting of creditors, the administrators received two separate and competing DOCA proposals from Veracio Ltd (the holder of approximately 58% of the shares in Globaltech Corporation) and Imdex Ltd (Globaltech Corporation's main competitor and the parent company of Australian Mud Company Pty Ltd and Reflex Instruments Asia Pacific Pty Ltd). Both proposals were presented to creditors in the administrators' report. For the reasons set out in their report, the administrators recommended Veracio Ltd's DOCA proposal and did not recommend the DOCA proposal of Imdex Ltd. Further, the administrators recorded that if Veracio Ltd's DOCA proposal was not accepted, they recommenced that Globaltech Corporation be placed into liquidation in preference to accepting the DOCA proposal of Imdex Ltd, which proposal was not considered to be capable of completion.[22]
[22] Third affidavit of RC Brauer sworn 2 September 2024, RCB10 (pages 181 - 188).
On 22 July 2024 Imdex Ltd submitted a revised DOCA proposal, and the next day the administrators issued a supplementary report to creditors providing information to creditors with respect to the same. In the supplementary report, the administrators set out the reasons why their recommendation to creditors to accept Veracio Ltd's DOCA proposal remained unchanged.[23]
[23] Third affidavit of RC Brauer sworn 2 September 2024 pars 9 - 10, RCB11.
Before the second meeting of creditors was held, the administrators were required to adjudicate various proofs of debts in respect of creditor claims for voting purposes, which included the proofs of debt submitted on behalf of the Boart Longyear group of companies and the Imdex group of companies. Mr Brauer deposed that his adjudication of these claims, and therefore his view of the likely liability owed to each of these parties, varied materially from the proofs of debt and the books and records of Globaltech Corporation.[24]
[24] Third affidavit of RC Brauer sworn 2 September 2024 par 12.
The second meeting of creditors was held on 25 July 2024, at which the administrators admitted the proofs of debt of the Boart Longyear group of companies for a total of $3.2 million; and the proof of debt of Australian Mud Company Pty Ltd and Reflex Instruments Asia Pacific Pty Ltd (jointly) for one vote in the amount of $13.5 million.[25]
[25] Third affidavit of RC Brauer sworn 2 September 2024 par 29, RCB17.
The creditors voted, in both number and value, in favour of Globaltech Corporation entering into a DOCA in substantially the same terms as the revised DOCA proposal received from Imdex Ltd.[26] On 31 July 2024 the DOCA was executed, substantively in the same terms as the revised DOCA proposal received from Imdex Ltd.[27]
Application to appeal adjudications / termination of the DOCA
[26] Third affidavit of RC Brauer sworn 2 September 2024 par 14, RCB12.
[27] Third affidavit of RC Brauer sworn 2 September 2024 par 15.
By an interlocutory application filed on 31 July 2024 in the proceeding known as COR 75 of 2024, the Boart Longyear group of companies, among other things, sought to appeal the adjudication of their proofs of debt for the purposes of voting at the second meeting of creditors, and alternatively to terminate the DOCA. That application was discontinued on 20 August 2024 by the consent of all parties to it.[28]
[28] Order 1 of the orders made on 20 August 2024.
The discontinuance followed the agreement of a global settlement of the various legal proceedings as between Globaltech Corporation and various entities related to Imdex Ltd.[29] In an announcement released by Imdex Ltd on the ASX on 16 August 2024, it was recorded that:[30]
The parties have now agreed to settle all of their global disputes and have entered into a binding settlement agreement which includes transfer of certain intellectual property to IMDEX; new supply agreements between the parties; and a AUD $10m payment to IMDEX. As a result, all global proceedings commenced by either party, including those in Canada, Australia and South Africa will be discontinued or brought to a final determination without any order for compensation and Boart Longyear will drop the challenge to, and agree to support, IMDEX's DOCA for Globaltech.
In addition to the above, and subject to IMDEX's DOCA for Globaltech being finalised, all of Globaltech's patents and trademarks will be incorporated as part of IMDEX's intellectual property portfolio and Boart Longyear will receive a licence for some of its tools.
OLART Claim
[29] Third affidavit of RC Brauer sworn 2 September 2024 pars 18 - 20, RCB13.
[30] Third affidavit of RC Brauer sworn 2 September 2024, RCB13.
Prior to the external administration, Globaltech Corporation had commenced a proceeding against Reflex Instruments Asia Pacific Pty Ltd for the infringement of Australian patent number 2012297654 (described by Mr Brauer as the OLART Claim), the costs of which had been funded by Boart Longyear Australia Pty Ltd.[31] Mr Brauer deposed to his understanding that by the funding agreement, Globaltech Corporation had assigned 75% of all rights, title and interest of any and all proceeds attributable to the OLART Claim to Boart Longyear Australia Pty Ltd.[32]
[31] Third affidavit of RC Brauer sworn 2 September 2024 pars 20(b), 22(f), RCB15.
[32] Third affidavit of RC Brauer sworn 2 September 2024 par 22(f).
In July 2022 judgment as to liability only was awarded in favour of Globaltech Corporation, and in September 2023 an appeal of that judgment was dismissed. However, as at the date of the appointment of the external administrators, damages had not yet been assessed.[33]
[33] Third affidavit of RC Brauer sworn 2 September 2024 par 22(f).
In their report to creditors, the administrators set out their reasoning for their view as to the likely value of the OLART Claim, which ranged from $600,000 (in a low scenario) to $4 million (in a high scenario). On that basis, the view was formed that the value of the remaining 25% interest held by Globaltech Corporation was between $150,000 and $1 million.[34]
[34] Third affidavit of RC Brauer sworn 2 September 2024 par 22(f), RCB10 (page 161).
Pursuant to the global settlement of the various legal proceedings as between Globaltech Corporation and the various entities related to Imdex Ltd (referred to at [43] above), the OLART Claim was discontinued by consent.[35]
The application
[35] Fourth affidavit of RC Brauer sworn 4 October 2024 par 10, RCB27.
As noted above, the DOCA required the deed administrators to obtain court orders granting them leave to transfer Globaltech Corporation's shares to Imdex Ltd (or its nominee) pursuant to s 444GA(1)(b) of the Corporations Act.[36] The DOCA further provided that in the event that the deed administrators were unable to obtain leave pursuant to s 444GA(1)(b) of the Corporations Act, or the condition was not otherwise waived in accordance with cl 11.3 of the DOCA, the completion of the DOCA was conditional upon the sale of Globaltech Corporation's assets to Imdex Ltd (or its nominee), in substantially the same terms as set out in sch 1 of appendix 2 of the DOCA (described in the DOCA as the 'Asset Sale Alternative Transaction').[37]
[36] Third affidavit of RC Brauer sworn 2 September 2024, RCB9 (page 53).
[37] Third affidavit of RC Brauer sworn 2 September 2024, RCB9 (page 54).
Counsel for the deed administrators noted that in circumstances where the OLART Claim had been settled after the DOCA had been executed, it was no longer an asset that might be the sold as part of the Asset Sale Alternative Transaction.[38]
[38] Outline of submissions par 19; fourth affidavit of RC Brauer sworn 4 October 2024 par 11.
It was also noted on behalf of the deed administrators that if leave under s 444GA(1)(b) of the Corporations Act was not secured (or the condition waived) and, in the alternative, the Asset Sale Alternative Transaction did not occur within three months after the date of the DOCA, the conditions for completion under the terms of the DOCA would not be met and the DOCA would automatically terminate. It was further noted that Globaltech Corporation's only viable alternative to the DOCA would be liquidation.[39]
Communications with shareholders between 27 August 2024 and 14 September 2024
[39] Outline of submissions pars 21 - 22.
Mr Brauer deposed that on 27 August 2024, he wrote to each shareholder of Globaltech Corporation. In the document titled 'Update to Shareholders', among other things, Mr Brauer informed the shareholders of the following:[40]
[40] Fourth affidavit of RC Brauer sworn 4 October 2024 par 6, RCB24.
Under the terms of the DOCA, Imdex is entitled to acquire 100% of the issued share capital of Globaltech, by way of application to the court under Section 444GA of the Corporations Act 2001 (Act).
The assets of Globaltech are insufficient to repay its creditors meaning the shares of Globaltech hold no value. Therefore, the Deed Administrators' view is that if the Court were to make an order under s444GA for the transfer of the shares to Imdex, shareholders would not receive any consideration for the transfer of their shares.
Pursuant to the DOCA, (i) all employee creditors and unsecured creditors (excluding Imdex and its related party creditors) will receive a dividend of 100 c/$. Related party creditors of Globaltech (i.e the Boart Longyear Group entities) will receive a fixed dividend of $300k. The DOCA does not provide for shareholders to receive any consideration for the transfer of the shares to Imdex.
You may also be aware of the ASX announcement dated 16 August 2024 which confirmed that Imdex and Boart Longyear had entered into a binding global settlement between them which resolves all intellectual property disputes between the two groups and provides Boart Longyear's support for the DOCA.
The purpose of this letter is to provide you with details of the DOCA, and to request that you execute and return the enclosed Share Transfer Deed by Friday, 30 August 2024.
Once the Share Transfer Deed is signed and the DOCA is completed, you will no longer own your shares in Globaltech or have any rights in relation to Globaltech.
If any one of the 12 shareholders do not voluntarily sign the Share Transfer Deed, the Deed Administrators will be required to make an application to the court under section 444GA of the Act (444GA Application) seeking the Courts approval for the transfer of all of the shares in Globaltech to Imdex compulsorily.
The court may only grant orders to transfer shares if it is satisfied that the transfer would not unfairly prejudice the interests of shareholders. The Courts have held that where the value of the shares is such that there is no residual value to shareholders or there is unlikely to be any prospect of the shares obtaining such value (which the Deed Administrators consider is the case for Globaltech), shareholders are generally unlikely to be unfairly prejudiced. Accordingly, based on the current asset and liability position of Globaltech and the global settlement of all claims between Imdex and Boart Longyear, the Deed Administrators consider it likely that Orders would be granted by the Court transferring all shares in Globaltech to Imdex. Notwithstanding, we wish to avoid the costs of a court application if possible and are therefore seeking each shareholder's voluntary consent to transfer these shares instead.
We seek your support for this outcome because the benefit of having each shareholder voluntarily consent to the transfer of the shares issued means that the terms of the DOCA can be effected quickly and efficiently. The ultimate outcome for the Globaltech entity is the same, but by shareholders agreeing to the share transfer, creditors will be able to be paid sooner than would otherwise be expected by following the Court process.
By that communication, the shareholders were asked to execute and return the enclosed share transfer deed by 30 August 2024.
Mr Brauer deposed that between 27 August 2024 and 14 September 2024, he received executed share transfer deeds and share transfer forms from 11 shareholders, with respect to 99.5% of the shares on issue.[41] Only one shareholder did not agree to execute a share transfer deed and share transfer form, and a copy of the communications with that shareholder was before the court.[42]
[41] Fourth affidavit of RC Brauer sworn 4 October 2024 par 7, RCB25.
[42] Fourth affidavit of RC Brauer sworn 4 October 2024 par 7, RCB26 (pages 108 - 114).
On 16 September 2024 the deed administrators notified the shareholders of their intention to proceed with the application to the court as not all shareholders had agreed to the share transfer.[43]
Expert evidence - residual value of the shares in Globaltech Corporation
[43] Fourth affidavit of RC Brauer sworn 4 October 2024, RCB26 (pages 86, 100, 108).
On 2 September 2024 the deed administrators engaged Adam Myers and Sherif Andrawes of BDO Australia (together the experts) to provide an independent expert report in relation to the residual value of the shares in Globaltech Corporation.[44] That report was received by the deed administrators on 4 October 2024, and was attached to Mr Myers' affidavit.[45]
[44] Third affidavit of RC Brauer sworn 2 September 2024 par 31, RCB18.
[45] Affidavit of AA Myers sworn 4 October 2024, AAM1.
In arriving at their opinion, the experts assessed the assets and liabilities of Globaltech Corporation to determine the residual equity value. The experts opined upon the residual value of the shares in two scenarios, in an asset sale by the deed administrators; and alternatively, in a liquidation scenario.
At pt 8 of the report, the experts noted that different methodologies may be appropriate in valuing particular companies, based on the individual circumstances of that company and available information. They also noted that it is possible for a combination of different methodologies to be used together to determine an overall value, where separate assets and liabilities are valued using different methodologies. When such a combination of methodologies is used, it is referred to as a 'sum‑of‑parts' valuation.[46]
[46] Affidavit of AA Myers sworn 4 October 2024, AAM1 (page 21).
The experts employed the 'sum-of-parts' valuation methodology when estimating the fair market value of Globaltech Corporation, by aggregating the estimated fair market values of Globaltech Corporation's underlying assets and liabilities, having had regard to following.
First, the value of Globaltech Corporation's patents, applying the discounted cash flow methodology and considering a cost-based valuation as a crosscheck. Secondly, the value of Globaltech Corporation's other assets and liabilities. The experts also recorded that they did not consider that the capitalised development or goodwill balances had a value that would be realised, as the nature of such assets would require Globaltech Corporation to continue its previous operations, but there were no employees with the required knowledge and skills to recommence operations in their previous form.[47]
[47] Affidavit of AA Myers sworn 4 October 2024, AAM1 (page 24).
In summary, on an asset sale basis, having had regard to the value of Globaltech Corporation's patents; the adjusted value range of Globaltech Corporation's other assets; the adjusted value range of Globaltech Corporation's liabilities; and the adjusted net value range of Globaltech Corporation's assets, the experts opined that the value of Globaltech Corporation lay within the range set out in the table reproduced below:[48]
[48] Affidavit of AA Myers sworn 4 October 2024, AAM1 (page 24); outline of submissions pars 25 - 26.
In summary, on a liquidation basis, having had regard to the value of Globaltech Corporation's patents; the adjusted value range of Globaltech Corporation's other assets; the adjusted value range of Globaltech Corporation's liabilities; and the adjusted net value range of Globaltech Corporation's assets, the experts opined that the value of Globaltech Corporation lay within the range set out in the table reproduced below:[49]
[49] Affidavit of AA Myers sworn 4 October 2024, AAM1 (page 24); outline of submissions pars 27 - 28.
The experts noted that they had estimated realisation costs based on a review of the report to creditors and the experts' observations of historical transactions.[50]
[50] Affidavit of AA Myers sworn 4 October 2024, AAM1 (page 24).
For the reasons explained in the expert report and having regard to the conclusions summarised above, the experts assessed the residual equity value of Globaltech Corporation on an asset sale basis and a liquidation basis to be $nil.[51]
Remaining steps - effectuation of the DOCA
[51] Affidavit of AA Myers sworn 4 October 2024, AAM1 (pages 7, 24, 30); outline of submissions par 29.
In his third affidavit, Mr Brauer deposed that on 2 September 2024, the only two remaining steps required for the DOCA to be effectuated were:
(a) the obtaining of leave as sought by this application and, if the orders were made, transferring all the shares in Globaltech Corporation to Imdex Ltd; or
(b) if leave was refused, entering into an asset sale agreement so as to complete the Asset Sale Alternative Transaction.[52]
[52] Third affidavit of RC Brauer sworn 2 September 2024 par 33.
Applicable principles - s 444GA of the Corporations Act
Section 444GA(1) of the Corporations Act provides that an administrator of a deed of company arrangement may transfer shares in the company either with the written consent of the shareholders, or with the leave of the court.
Section 444GA(3) provides that the court may only grant leave pursuant to s 444GA(1) if it is satisfied that the transfer would not unfairly prejudice the interests of members of the company.
The legal principles with respect to the assessment of unfair prejudice for the purposes of s 444GA are well established, and in determining the application I was cognisant of the following.
The purpose of s 444GA is to grant deed administrators the ability to compulsorily sell company shares where necessary for the purposes of implementing a deed of company arrangement under which payment of creditors' debts is dependent upon such a transfer occurring, or where such a transfer is necessary for the success of the deed.[53]
[53] In the matter of Paladin Energy Ltd (Subject to Deed of Company Arrangement) [2018] NSWSC 11 [28].
The court may only grant leave if it is satisfied that the sale will not unfairly prejudice the interests of shareholders, and the court therefore will consider the impact of a compulsory sale of shares where there may be some residual value in the company.[54] The question of unfairness only arises if prejudice is established.[55] Furthermore:[56]
(a) whether a transfer is unfairly prejudicial is to be determined having regard to all the circumstances of the case and the policy of the legislation;
(b) the fact that a transfer of shares is to occur without compensation to members is not sufficient, in itself, to establish unfair prejudice;
(c) where the equity in the company has no residual value the members are unlikely to suffer prejudice, and certainly not unfair prejudice, by reason only of the absence of consideration; and
(d) orders may be made under s 447A of the Corporations Act to put into effect the proposed transfer of shares.
[54] In the matter of Paladin Energy Ltd (Subject to Deed of Company Arrangement) [28].
[55] Re Centennial Mining Limited (subject to deed of company arrangement) [2019] WASC 441 [18].
[56] Park, in the matter of Collection House Ltd (subject to a deed of company arrangement) [2022] FCA 1244 [4] ‑ [7]. See also In the matter of Paladin Energy Ltd (Subject to Deed of Company Arrangement) [28] ‑ [35]; Tucker, in the matter of Black Oak Minerals Ltd (Subject to a Deed of Company Arrangement) (in liq) [2019] FCA 293; (2019) 134 ACSR 472 [31] ‑ [37]; Strawbridge, Re Virgin Australia Holdings Ltd (administrators appointed) (No 9) [2020] FCA 1652; (2020) 148 ACSR 648 [29] ‑ [35]; and Re Centennial Mining Limited (subject to deed of company arrangement) [18] ‑ [22].
If liquidation is the only realistic alternative to a proposed transfer of shares and the shares would have no value in a liquidation, there is no prejudice, or no unfair prejudice, to the interests of members if the transfer occurs without consideration. Of course, this assumes that winding up is the only practicable alternative to the DOCA proposal of which the transfer is an aspect.[57]
[57] Strawbridge, Re Virgin Australia Holdings Ltd (administrators appointed) (No 9) [34], citing with approval In the matter of Oroton Group Ltd (Subject to Deed of Company Arrangement); Application of Strawbridge and Kanevsky [2018] NSWSC 1213 [37], cited in Chalmsbury Nominees Pty Ltd v Alita Resources Limited (receivers and managers appointed) (subject to deed of company arrangement) [2023] WASC 97 [57]. See also Re Centennial Mining Limited (subject to deed of company arrangement) [18].
As was noted by Vaughan J in Re Centennial Mining Limited (subject to deed of company arrangement),[58] in the exercise of the power it is relevant to consider whether a full and accurate description of the proposal has been given to shareholders, and whether shareholders have been given a full opportunity to appear in opposition to the application. Further, while there is an evidentiary onus on the shareholders to raise any consideration telling against the exercise of the discretion, the ultimate onus of satisfying the court that the discretion should be exercised remains on the deed administrator. This requires the deed administrator to satisfy the court that the transfer would not unfairly prejudice the interests of members of the company.
[58] Re Centennial Mining Limited (subject to deed of company arrangement) [18] - [19].
The application also requires the court necessarily to consider whether there is a prospect of the shares obtaining value within a reasonable time.[59]
[59] Lewis, in the matter of Diverse Barrel Solutions Pty Ltd [2014] FCA 53 [19], cited with approval in Tucker, in the matter of Black Oak Minerals Ltd (Subject to a Deed of Company Arrangement) (in liq) [34]; and Chalmsbury Nominees Pty Ltd v Alita Resources Limited (receivers and managers appointed) (subject to deed of company arrangement) [57].
It has been observed that an assessment that there is no residual value and there will be no return to shareholders might not, in every case, be sufficient to allay concerns about unfair prejudice to members.[60] As was noted by Vaughan J, there may, for example, be a potential benefit to shareholders from further investigation being carried out by a liquidator.[61]
[60] Tucker, in the matter of Black Oak Minerals Ltd (Subject to a Deed of Company Arrangement) (in liq) [64], [67], referred to by Vaughan J in Re Centennial Mining Limited (subject to deed of company arrangement) [22].
[61] Re Centennial Mining Limited (subject to deed of company arrangement) [22].
Counsel for the deed administrators also noted that a deed of company arrangement may include a back-up asset sale agreement as an alternative to a s 444GA share transfer.[62] It was submitted that in such a circumstance, if the consequence of the asset sale is a shortfall in the remaining assets of the company such that it is unable to meet its debts, then the residual value of the shares would still be nil;[63] and accordingly, the shareholders would be in no worse position in the event that a s 444GA share transfer were to take effect or the backup asset sale was to become enforceable. That is, unfair prejudice would not be established.[64]
[62] Outline of submissions par 37, referring to Re Smith (as joint and several administrators of Catalano Seafood Ltd) (subject to a deed of company arrangement) (administrators appointed) [2024] WASC 99 and Anderson, in the matter of NT Port and Marine Pty Ltd (subject to deed of company arrangement) (No 3) [2024] FCA 905.
[63] See Re Smith (as joint and several administrators of Catalano Seafood Ltd) (subject to a deed of company arrangement) (administrators appointed) [24].
[64] Anderson, in the matter of NT Port and Marine Pty Ltd (subject to deed of company arrangement) (No 3) [24].
Disposition
Notice to shareholders, creditors and ASIC
As noted above, on 4 September 2024 the court made a number of directions, which included a direction that the deed administrators were to provide to all members of Globaltech Corporation; creditors of Globaltech Corporation; and ASIC, notice of the interlocutory process and the final hearing, together with a copy of the interlocutory process in the manner prescribed.
In his fourth affidavit, Mr Brauer deposed to the steps taken to comply with the direction given on 4 September 2024, and I was satisfied that notice had been given.[65]
[65] Fourth affidavit of RC Brauer sworn 4 October 2024 par 5, RCB20, RCB21, RCB22, RCB23.
Mr Brauer deposed that he did not receive a response from any creditors, nor from ASIC in relation to the communications sent in accordance with the direction made on 4 September 2024. Mr Brauer also deposed that upon receiving a copy of the expert report on 4 October 2024, on the same day he provided notice of receipt of that report and the opinions expressed therein to the shareholders of Globaltech Corporation. By that communication, the shareholders also received a copy of the expert report.[66]
[66] Fourth affidavit of RC Brauer sworn 4 October 2024 par 13, RCB28, RCB29.
While Mr Brauer had received executed share transfer deeds and share transfer forms from 11 shareholders who together comprised 99.5% of the shares on issue,[67] in the absence of the consent of all shareholders this application was necessary. It was appropriate in all of the circumstances that all shareholders be provided with a copy of the expert report, and I was satisfied that this was done.
[67] Fourth affidavit of RC Brauer sworn 4 October 2024 par 7, RCB25.
No shareholder filed a notice of appearance within the time prescribed, nor did any shareholder otherwise seek to be heard after receipt of the expert report.
Having regard to the affidavits read, I was satisfied that by the disclosure given by the deed administrators to the shareholders of Globaltech Corporation, they had received a full and accurate description of the proposal (within the context of the DOCA), and the opportunity to appear on the application.
Standing and power
Mr Brauer and Mr Fraser in their capacity as the deed administrators of Globaltech Corporation had standing to seek leave pursuant to s 444GA(1) of the Corporations Act to transfer shares in Globaltech Corporation; and provided that the court was satisfied that the transfer would not unfairly prejudice the interests of members of the company, I was satisfied that the grant of such leave would be within power.
No unfair prejudice to shareholders
By reference to the expert report, it was noted on behalf of the deed administrators that there would be a shortfall in the assets of Globaltech Corporation to satisfy its liabilities:
(a)on an asset sale basis, in the range of $15,357,000 (low) to $14,096,000 (high); and
(b)on a liquidation basis, in the range of $18,061,000 (low) to $16,631,000 (high).
It was noted that in light of the shortfall, there would be no residual value in the equity of Globaltech Corporation under either the Asset Sale Alternative Transaction or liquidation (the two available alternatives to the proposed transfer of shares contemplated by the DOCA).
In light of the expert evidence, I accepted that should the deed administrators' application for leave under s 444GA of the Corporations Act be refused, there would be no return to shareholders upon the completion of the Asset Sale Alternative Transaction nor liquidation, and therefore the court could be satisfied that the transfer of shares to Imdex Ltd (or its nominee) would not unfairly prejudice the interests of the shareholders of Globaltech Corporation.
As to why liquidation was the only alternative to a share transfer or the Asset Sale Alternative Transaction under the DOCA, counsel noted that if the DOCA terminated, Globaltech Corporation would not be released from the judgment debt entered against it in the Federal Court in the amount of about $10.3 million.[68] Given its financial position, it was submitted that Globaltech Corporation would be unable able to pay the judgment debt and its only viable alternative to the DOCA would be insolvent liquidation.[69]
[68] Discussed at [29] and [30] above.
[69] Outline of submissions par 32.
It was further submitted that accordingly, the possibility of unfair prejudice to the shareholders of Globaltech Corporation as it related to a potential loss of any real or perceived residual value would not arise in any circumstances where the application for leave pursuant to s 444GA of the Corporations Act was refused.[70] This submission was supported by the expert report and I was satisfied that the onus of satisfying the court that the transfer would not unfairly prejudice the interests of members of Globaltech Corporation had been satisfied.
[70] Outline of submissions pars 57 - 58.
I also considered whether there was evidence to suggest that there was a prospect of the Globaltech Corporation shares obtaining value within a reasonable time, or whether the position of the shareholders might be improved by the further investigations that might be carried on by a liquidator. When considering the same, I had regard to the matters described by Mr Brauer and Mr Fraser in their capacity as joint and several administrators of Globaltech Corporation in their report to creditors prepared for the second meeting of creditors. Among other things, the administrators there recorded that they had performed preliminary investigations into the activities of Globaltech Corporation in the months leading up to their appointment. By way of summary, the administrators recorded the following as to those potential claims:[71]
[71] Third affidavit of RC Brauer sworn 2 September 2024, RCB10 (page 144).
While further analysis would need to be undertaken by a liquidator, we note the following potential claims:
• Insolvent trading claims against directors for liabilities incurred from at least 7 March 2024 - such claims appear of limited value and might be challenging and costly to enforce against the majority of non-resident directors. We do not consider there would be a claim capable of pursuit based on a 7 March 2024 date of insolvency. If an earlier date of insolvency at 28 November 2023 was proven the gross insolvent trading claim might be c. $174k which is unlikely to be commercially viable to pursue;
•Preference claims have been identified with a total value between c. $157k and c. $257k depending on the date of insolvency.
• There are allegations from stakeholders which may give rise to breach of duty claims against the [Boart Longyear] Directors, the majority shareholders and other [Boart Longyear] Group entities in relation to the following provisions of the Act:
-Sections 180 - Failure to act with care and diligence
-Section 181 - Not acting with good faith in the interests of the Company
-Section 182 - Improper use of position
-Section 183 - Improper use of information
-Section 588V - Holding company liability for insolvent trading
These types of claims are serious. The allegations are not well advanced, appear do not appear to be substantiated by evidence at this time. None of the [Boart Longyear] Directors, Veracio or [Boart Longyear] Group have had an opportunity to respond to such allegations. Forming views on the value and merits of such claims would require a liquidator to (i) engage in a forensic examination of the claims, (ii) perform interviews and/or Public Examinations of parties of interest, including directors, officers, employees and potentially parties associated with Veracio and [Boart Longyear] Group, and (iii) take legal advice on the merits of potential claims. Ultimately, claims of this nature would involve complex litigation and a liquidator would require funding to progress the investigations, and if appropriate, instigate recovery actions. These would be steps a liquidator would take, should Globaltech be placed in liquidation, because these steps could not be completed by the Administrators within the statutory time constraints of the voluntary administration process.
It was in circumstances which included the administrators' observations above, that the administrators had recommended that the creditors of Globaltech Corporation vote in favour of Veracio Ltd's DOCA proposal. In the disposition of this application I gave weight to the opinions expressed by experienced insolvency practitioners, including that expressed at par 15 of Mr Bauer's affidavit sworn on 4 October 2024. In doing so I did not ignore the different roles of administrators and liquidators, and the level of investigation required of an administrator.[72] However, it was by no means apparent on the evidence that the shareholders would be denied value capable of being realised if investigations by a liquidator were not undertaken. Further, I took comfort that Mr Brauer had received executed share transfer deeds and share transfer forms from 11 shareholders who together comprised 99.5% of the shares on issue, and that no shareholder sought to be heard in opposition to the relief sought.
[72] As discussed in Forth v R Developments Pty Ltd [2019] FCA 1004 [16] ‑ [21].
When regard was had to all of the evidence before the court, including the matters recorded in the report to creditors, there was not a compelling basis to be concerned that Globaltech Corporation shares might obtain value within a reasonable time, or that the shareholders would be unfairly prejudiced if further investigations by a liquidator were not pursued.
Discretion enlivened
In these circumstances, I was satisfied that the deed administrators had discharged their burden of establishing that transfer of the entire shareholding of Globaltech Corporation to Imdex Ltd (or its nominee), as contemplated in the DOCA, would not result in any 'unfair prejudice', and therefore I was satisfied that the court's discretionary power to grant leave under s 444GA(1)(b) of the Corporations Act had been enlivened. Further, in all of the circumstances, it was appropriate that the enlivened discretion be exercised.
Ancillary order pursuant to s 447A of the Corporations Act
An ancillary order was also sought pursuant to s 447A of the Corporations Act, which section empowers the court to make such orders as it thinks appropriate about how pt 5.3A is to operate in relation to a particular company. Section 447A gives the court broad powers, including the power to alter what would otherwise be the operation of pt 5.3A in relation to a particular company, even where the provision would on its separate construction exclude such an order.[73]
[73] Brash Holdings Ltd (Administrator Appointed) v Katile Pty Ltd [1996] 1 VR 24, 26 ‑ 27; Australasian Memory Pty Ltd v Brien [2000] HCA 30; (2000) 200 CLR 270; Lombe, in the matter of Bosnjak Holdings Pty Ltd [2005] FCA 275; (2005) 53 ACSR 8 [9].
The court's power to amend by operation of s 447A has been described as plenary, to be exercised as the court thinks just in all of the circumstances with regard to the rights of those affected by the exercise of power.[74]
[74] Outline of submissions par 39, citing Cawthorn v Keira Constructions Pty Ltd (1994) 13 ACSR 337, 341.
The DOCA contemplates that the shares of Globaltech Corporation will be transferred to Imdex Ltd, the deed proponent, on completion of the steps in cl 12.1 of the DOCA.[75] The deed administrators moved for an order under s 447A(1) that they may, jointly or severally, in their capacity as deed administrators, execute share transfer forms and any other documents ancillary or incidental to effecting the transfer of Globaltech Corporation shares; and enter or procure the entry of the name of Imdex Ltd (or its nominee) into the share register of Globaltech Corporation in respect of all shares transferred to Imdex Ltd in accordance with the court's order pursuant to s 444GA(1).
[75] Third affidavit of RC Brauer sworn 2 September 2024, RCB9 (pages 56 - 57, 73, repeated in the counterpart to the DOCA at 104 ‑ 105, 121).
It was submitted on behalf of the deed administrators that the ancillary order promoted was within power, and it was noted that orders in the nature of the order sought by the deed administrators by this application had previously been made pursuant to s 447A(1).[76]
[76] Outline of submissions par 65, citing In the matter of Oroton Group Ltd (Subject to Deed of Company Arrangement); Application of Strawbridge and Kanevsky [44], In the matter of BCD Resources NL (subject to deed of company arrangement) [2018] NSWSC 1605 [20]; Tucker, in the matter of Black Oak Minerals Ltd (Subject to a Deed of Company Arrangement) (in liq) [83]; and Re Centennial Mining Limited (subject to deed of company arrangement) [45].
I accepted that by operation of s 447A(4)(d) of the Corporations Act, the deed administrators had standing to apply for an order pursuant to s 447A(1), and that the court had the power to make an order pursuant to s 447A as to the manner in which a transfer of shares in Globaltech Corporation, approved in accordance with s 444GA(1)(b), was to take place and to facilitate such transfer.
I was also satisfied that the exercise of discretion to make such an order in all of the circumstances of this case was justified, facilitating the completion of a DOCA that had been approved at the second meeting of the creditors of Globaltech Corporation. The same relief was sought pursuant to s 90‑15 of the Insolvency Practice Schedule (Corporations) (which is sch 2 to the Corporations Act). While it was not necessary for the deed administrators to also seek the ancillary order pursuant to s 90‑15, the application was within the power of that section and I was content to so proceed.
Costs of the application
The deed administrators moved for an order that the costs of and incidental to this application be costs and expenses in the deed administration of Globaltech Corporation. None of the evidence read suggested that this was not an appropriate order with respect to the deed administrators' costs.
Imdex Ltd did not seek any order as to its costs of appearance in support of the application, and the final orders reflected the same.
Conclusion and orders
For these reasons, the relief sought on behalf of the deed administrators was granted. The orders made on 8 October 2024 are reproduced at sch A to these reasons.
Sch A - Orders made on 8 October 2024
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SE
Associate to the Honourable Justice Strk
22 OCTOBER 2024
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