Queensland Nickel Sales Pty Ltd v Park (Liquidators) of Queensland Nickel Pty Ltd (in liq) [2025] FCAFC 129
Appeal from:
Park, in the matter of Queensland Nickel Pty Ltd (in liq) (Statutory Interest) [2024] FCA 1300
File number:
QUD 574 of 2024 QUD 575 of 2024 QUD 715 of 2024
Judgment of:
MARKOVIC, HALLEY AND WHEATLEY JJ
Date of judgment:
11 September 2025
Catchwords:
PRACTICE AND PROCEDURE – whether leave to appeal required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) – whether judgment or order appealed from is final or interlocutory – where directions provided to liquidators by way of judicial advice – where judgment and orders were interlocutory – leave to appeal required
PRACTICE AND PROCEDURE – application for extension of time to appeal – application for leave to appeal from an interlocutory decision – whether decision to be appeal attended with sufficient doubt to warrant its reconsideration on appeal – whether, if decision is wrong, substantial injustice would result if leave were refused – application for extension of time to appeal granted – leave to appeal refused
PRACTICE AND PROCEDURE – where leave to appeal required – where leave to appeal not sought – appeal dismissed as incompetent
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Queensland Nickel Sales Pty Ltd v Park (Liquidators) of Quee...
Sign in free to access the full text
Details
AGLC
Queensland Nickel Sales Pty Ltd v Park (Liquidators) of Queensland Nickel Pty Ltd (in liq) [2025] FCAFC 129
Case
[2025] FCAFC 129
Decision Date
CaseChat Overview and Summary
In the case of Queensland Nickel Sales Pty Ltd v Park (Liquidators) of Queensland Nickel Pty Ltd (in liq), the Full Court of the Federal Court of Australia was called upon to address issues of appeal jurisdiction and procedure. The primary concern was whether the orders made by the primary judge in relation to the administration of a bankrupt estate constituted final or interlocutory judgments, and if leave to appeal was required. The liquidators of Queensland Nickel Pty Ltd sought directions to make certain payments to creditors from trust assets, which Prony Resources New Caledonia supported, while the Palmer Parties opposed the liquidators' application. The primary judge granted the liquidators' application, leading to an appeal by the Palmer Parties.
The court was required to determine whether the orders made by the primary judge were final or interlocutory, and if leave to appeal was necessary. Additionally, the court had to decide if the Palmer Parties' application for leave to appeal from the interlocutory decision should be granted, and if the refusal of leave would result in substantial injustice. The court considered these issues in light of the principles established in Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 268 CLR 524; [2019] HCA 20.
The Full Court found that the orders made by the primary judge were interlocutory in nature, as they did not finally determine the rights of the parties but rather provided directions for the liquidators to follow. Given that leave to appeal is required for interlocutory orders, the court examined whether the Palmer Parties' application for leave should be granted. The court concluded that while the decision was attended with doubt, the potential for substantial injustice if leave were refused was not sufficient to warrant an appeal. Consequently, the appeal was dismissed as incompetent, and the appellants were ordered to pay the costs of the third respondent.
The final orders of the court were that the appeal was dismissed as incompetent, and the appellants were to pay the costs of the third respondent. This outcome highlights the importance of correctly identifying the nature of orders in insolvency proceedings and the stringent requirements for appealing interlocutory decisions.
Orders
Orders of the court
1. The appeal is dismissed as incompetent.
2. The appellants are to pay the third respondent’s costs of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the following reasons, we have concluded that both of the Orders were interlocutory, leave to appeal is required and, insofar as leave was sought, leave to appeal should be refused.BACKGROUNDInsolvency of QNI On 18 January 2016, QNI entered into voluntary administration. On 20 April 2016, Prony submitted a proof of debt dated 18 April 2016 (Prony proof of debt) in the amount of USD 4,953,649.04 which stated that the debt was due pursuant to a sale agreement between Prony and QNI dated 13 February 2013 (Supply Agreement), which was secured by a Security Deed entered into on 13 July 2015 between QNI and Prony. On 22 April 2016, at a creditors’ meeting of QNI, the creditors resolved that QNI be wound up. On 11 December 2019, QNI, Prony and the Liquidators entered into an agreement headed Settlement Deed and Release (Prony Settlement Deed). On 19 February 2024, the Liquidators admitted the Prony proof of debt in an amount of AUD 4,150,139.40. Application by Liquidators for directions and orders On 29 May 2024, the Liquidators filed an originating process under s 480 of the Act and s 90-15 and s 90-20(1)(d) of the Insolvency Practice Schedule (Corporations) (IPSC) seeking certain directions and orders (May Application). Relevantly, the Liquidators sought directions that they were or would be justified:(a)in making payments from specified trust assets to identified creditors for their admitted proofs of debt, including Prony; and(b)subject to a surplus of those trust assets being available, in paying interest pursuant to s 563B of the Act to those identified creditors (in respect of admitted amounts), including Prony. The term Trust Assets was defined in the May Application and in the Orders as:…the balance of the Judgment Sum that continues to be held by the Second Plaintiff and all assets of the Second Plaintiff held by it as trustee for QNIM and QNIR.” The term Judgment Sum was also defined in the May Application and in the Orders as:…the sum of $102,884,346.26 paid by Mineralogy Pty Ltd to the Second Plaintiff in satisfaction of the judgment of the Queensland Court of Appeal delivered on 25 June 2021, any further payment made in respect of that sum, and any interest earned by the Second Plaintiff on that sum. On 13 June 2024 and 8 July 2024, the primary judge conducted case management hearings in relation to the May Application. Determination of the May Application On 9 August 2024, the May Application was again before the primary judge for a case management hearing. On that occasion, the Liquidators sought a direction that they were justified in making certain payments to admitted creditors, including Prony. Prony (without objection) was granted leave to appear and supported the orders sought by the Liquidators. The Palmer Parties opposed the orders sought by the Liquidators. They submitted that (a) on a proper construction of the Prony Settlement Deed, a new charter of rights was created which replaced the rights that had existed under the Supply Agreement and the Security Deed and therefore, the debt the subject of the Prony proof of debt was not a trust debt, and (b) it was a question of construction of the Prony Settlement Deed, but not one which ought to be determined at a case management hearing.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The term Judgment Sum was also defined in the May Application and in the Orders as:…the sum of $102,884,346.26 paid by Mineralogy Pty Ltd to the Second Plaintiff in satisfaction of the judgment of the Queensland Court of Appeal delivered on 25 June 2021, any further payment made in respect of that sum, and any interest earned by the Second Plaintiff on that sum. On 13 June 2024 and 8 July 2024, the primary judge conducted case management hearings in relation to the May Application. Determination of the May Application On 9 August 2024, the May Application was again before the primary judge for a case management hearing. On that occasion, the Liquidators sought a direction that they were justified in making certain payments to admitted creditors, including Prony. Prony (without objection) was granted leave to appear and supported the orders sought by the Liquidators. The Palmer Parties opposed the orders sought by the Liquidators. They submitted that (a) on a proper construction of the Prony Settlement Deed, a new charter of rights was created which replaced the rights that had existed under the Supply Agreement and the Security Deed and therefore, the debt the subject of the Prony proof of debt was not a trust debt, and (b) it was a question of construction of the Prony Settlement Deed, but not one which ought to be determined at a case management hearing. On the basis of the principles distilled in Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 268 CLR 524; [2019] HCA 20 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ), the Palmer Parties submitted that the Court would not give the direction sought that the Liquidators would be justified in paying the amount of Prony’s admitted proof from Trust Assets if the amount to be paid was not a “trust debt”. The Liquidators submitted that the Prony Settlement Deed did not change the characterisation of the debt owed to Prony but rather that it remained a trust debt and the Prony Settlement Deed did not create a new debt. Prony supported that position. Both the Liquidators and Prony submitted that the amount of the Prony proof of debt was reduced to the amount identified in the Prony Settlement Deed, and the Prony proof of debt should be admitted for that reduced amount. The primary judge observed that given the historical position of the Palmer Parties, it was understandable that the Liquidators sought an order that they were justified in paying the amount to Prony from the Trust Assets: PJ [23]. Her Honour observed at PJ [29] that cl 3.2 of the Prony Settlement Deed:… therefore reduces and quantifies the value of the existing debt, which debt was incurred when QNI was trustee of the Trust Assets, for the purposes of admission of the proof of debt in the liquidation; for this reason, it is plain that the Settlement Deed does not create a “new” debt. There was no need for the proper construction of the Settlement Deed to be deferred to another day. The primary judge considered that there was no genuine dispute raised by the Palmer Parties that would justify delaying the consideration of the issue and therefore made the Payment Order at the case management hearing on 9 August 2024: PJ [33]. The Payment Order was made in the following terms:The Plaintiffs are justified in paying from the Trust Assets the amount of $4,150,139.40 to Prony Resources New Caledonia (formerly Vale Nouvelle-Calédonie SAS), being the amount admitted by the First Plaintiffs in respect of the proof of debt lodged by Prony Resources New Caledonia (formerly Vale Nouvelle-Calédonie SAS) in the liquidation of the Second Plaintiff. on 9 August 2024.