Re Aerison Group Ltd (Administrators Appointed) [No 2]
[2023] WASC 275
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE AERISON GROUP LTD (ADMINISTRATORS APPOINTED) [No 2] [2023] WASC 275
CORAM: STRK J
HEARD: 30 JUNE 2023
DELIVERED : 30 JUNE 2023
PUBLISHED : 26 JULY 2023
FILE NO/S: COR 92 of 2023
MATTER: IN THE MATTER OF RE AERISON GROUP LTD (ADMINISTRATORS APPOINTED) & ORS
EX PARTE
RICHARD SCOTT TUCKER, CRAIG PETER SHEPARD AND JOHN ALLAN BUMBAK IN THEIR CAPACITIES AS JOINT AND SEVERAL ADMINISTRATORS OF AERISON GROUP LTD (ACN 614 735 474) (ADMINISTRATORS APPOINTED), AERISON PTY LTD (ACN 060 786 656) (ADMINISTRATORS APPOINTED), AERISON ENERGY SERVICES PTY LTD (ACN 665 237 392) (ADMINISTRATORS APPOINTED), AERISON EPC PTY LTD (ACN 640 499 387) (ADMINISTRATORS APPOINTED), AERISON HOLDINGS PTY LTD (ACN 149 198 176) (ADMINISTRATORS APPOINTED), AERISON MECHANICAL AND ELECTRICAL TECHNOLOGY PTY LTD (ACN 620 639 974) (ADMINISTRATORS APPOINTED) AND AERISON SERVICES PTY LTD (ACN 617 466 529) (ADMINISTRATORS APPOINTED)
First Plaintiffs
AERISON GROUP LTD (ACN 614 735 474) (ADMINISTRATORS APPOINTED)
Second Plaintiff
AERISON PTY LTD (ACN 060 786 656) (ADMINISTRATORS APPOINTED)
Third Plaintiff
AERISON ENERGY SERVICES PTY LTD (ACN 665 237 392) (ADMINISTRATORS APPOINTED)
Fourth Plaintiff
AERISON EPC PTY LTD (ACN 640 499 387) (ADMINISTRATORS APPOINTED)
Fifth Plaintiff
AERISON HOLDINGS PTY LTD (ACN 149 198 176) (ADMINISTRATORS APPOINTED)
Sixth Plaintiff
AERISON MECHANICAL AND ELECTRICAL TECHNOLOGY PTY LTD (ACN 620 639 974) (ADMINISTRATORS APPOINTED)
Seventh Plaintiff
AERISON SERVICES PTY LTD (ACN 617 466 529) (ADMINISTRATORS APPOINTED)
Eighth Plaintiff
Catchwords:
Corporations law - Application to extend convening period - Turns on own facts
Legislation:
Corporations Act 2001 (Cth) s 439A(6), s 447A
Result:
Application granted
Category: B
Representation:
Counsel:
| First Plaintiffs | : | M Ferreira |
| Second Plaintiff | : | M Ferreira |
| Third Plaintiff | : | M Ferreira |
| Fourth Plaintiff | : | M Ferreira |
| Fifth Plaintiff | : | M Ferreira |
| Sixth Plaintiff | : | M Ferreira |
| Seventh Plaintiff | : | M Ferreira |
| Eighth Plaintiff | : | M Ferreira |
Solicitors:
| First Plaintiffs | : | Clayton Utz |
| Second Plaintiff | : | Clayton Utz |
| Third Plaintiff | : | Clayton Utz |
| Fourth Plaintiff | : | Clayton Utz |
| Fifth Plaintiff | : | Clayton Utz |
| Sixth Plaintiff | : | Clayton Utz |
| Seventh Plaintiff | : | Clayton Utz |
| Eighth Plaintiff | : | Clayton Utz |
Cases referred to in decision:
Cameron Shaw and Richard Albarran in their Capacity as Joint and Several Administrators of Home Art Building Group Pty Ltd (Administrators Appointed) v Home Art Building Group Pty Ltd (Administrators Appointed) [2016] WASC 274
Flynn v Theobold [2008] WASC 263
In the matter of Daisytek Australia Pty Ltd [2003] FCA 575
Mighty River International Ltd v Hughes [2017] WASCA 152; (2017) 52 WAR 1
Re Aerison Group Ltd (Administrators Appointed) [2023] WASC 274
Re Reid Group Pty Ltd (Administrators Appointed); Ex parte Kirman & Bauer [2017] WASC 219
Re Riviera Group Pty Ltd (Admins Apptd) (Recs and Mgs Apptd) [2009] NSWSC 585; (2009) 72 ACSR 352
Re Windimurra Vanadium Ltd & Midwest Vanadium Pty Ltd [2009] WASC 71
Table of Contents
Introduction
Evidence
Background and context in which the third application is made
Work undertaken and to be completed
Sale process
Report preparation
The extension sought
Disposition
Confidentiality
Costs
Orders
Sch A - Orders made on 30 June 2023
STRK J:
(This judgment was delivered extemporaneously on 30 June 2023 and has been edited from the transcript to correct infelicity of language, to include complete references to materials and evidence before the court, and to include complete citations of authorities relied upon in the disposition of the application.)
Introduction
Richard Scott Tucker, Craig Peter Shepard and John Allan Bumbak are the joint and several administrators of Aerison Group Ltd (administrators appointed), Aerison Pty Ltd (administrators appointed), Aerison Energy Services Pty Ltd (administrators appointed), Aerison EPC Pty Ltd (administrators appointed), Aerison Holdings Pty Ltd (administrators appointed), Aerison Mechanical and Electrical Technology Pty Ltd (administrators appointed), and Aerison Services Pty Ltd (administrators appointed) (together the Group Companies). They were appointed on 6 June 2023 pursuant to s 436A of the Corporations Act 2001 (Cth) and written resolutions of the boards of the Group Companies dated 6 June 2023.
The administrators are named as the first plaintiffs in this proceeding and the Group Companies are named as the second to eighth plaintiffs, respectively.
The plaintiffs press for orders in terms of the interlocutory process filed in this proceeding on 29 June 2023. The hearing of the application was listed to be heard ex parte on 30 June 2023, being the last sitting day before the recess.
In broad outline, the plaintiffs seek orders extending the convening period for the second meeting of creditors of the Group Companies. Unless extended, the convening period for the second meeting of creditors for each of the Group Companies will end on 4 July 2023.
As to the extension application, the plaintiffs seek an order that the convening period, as defined by s 439A(5) of the Corporations Act, (with respect to the Group Companies) be extended to 29 August 2023.
The plaintiffs also seek an order that pursuant to s 447A(1) of the Corporations Act, pt 5.3A of the Corporations Act is to operate in relation to the Group Companies as if the meeting of creditors of the Group Companies (required by s 439A of the Corporations Act) may be convened and held at any time during the period as extended, and the period of five business days thereafter, notwithstanding s 439A(2) of the Corporations Act, provided that at least five business days' notice of such meeting is given in accordance with s 75‑225 and s 70-40 of the Insolvency Practice Rules (Corporations) 2016 (Cth).
This relief is as reflected in orders 1 and 2 of the interlocutory process and the plaintiffs' minute of proposed orders (which minute was filed on 29 June 2023), referred to and relied upon by counsel for the plaintiffs at the hearing of this application.
Proposed order 3 of the interlocutory process concerns the costs of the application, and proposed order 4 concerns liberty to apply to vary or discharge orders 1 ‑ 3.
The plaintiffs also move for an order to restrict access to a confidential affidavit deposed by Mr Tucker on 29 June 2023 filed in this proceeding, and the annexure to that affidavit.
Evidence
The interlocutory process (filed on 29 June 2023) is the third application that had been heard concerning the external administration of the Group Companies. Three affidavits were filed in support of the third application. Confidentiality is claimed and restriction orders sought in relation to one of the three affidavits. They are the third affidavit of Mr Tucker sworn on 29 June 2023 and filed on the same date with attachments RST‑36 to RST‑37 (third Tucker affidavit); the third confidential affidavit of Mr Tucker sworn on 29 June 2023, and filed on the same date with attachment RST‑38 (third confidential Tucker affidavit); and the first affidavit of John Allan Bumbak sworn 30 June 2023 and filed on the same date with attachments JAB‑1 to JAB‑2 (first Bumbak affidavit).
The affidavits of Mr Tucker deposed on 29 June 2023 are not the first sworn by him and filed in the proceeding known as COR 92 of 2023. Mr Tucker made two affidavits in support of the originating process filed on 13 June 2023, by which the plaintiffs sought orders pursuant to s 447A of the Corporations Act and s 90‑15(1) and s 65‑45 of the Insolvency Practice Schedule (Corporations). They were the first affidavit of Mr Tucker sworn 13 June 2023 and filed on the same date with attachments RST‑1 to RST‑30 (first Tucker affidavit); and the first confidential affidavit of Mr Tucker sworn 13 June 2023, and filed on the same date with attachments RST‑24 and RST‑25 (first confidential Tucker affidavit).
Mr Tucker also made two affidavits in support of a second application, made by the plaintiffs' interlocutory process filed on 15 June 2023, by which the plaintiffs sought orders pursuant to s 447A and s 443A of the Corporations Act. They were the second affidavit of Mr Tucker sworn 15 June 2023, and filed on same date with attachment RST‑33 (second Tucker affidavit); and the second confidential affidavit of Mr Tucker sworn 15 June 2023, and filed on the same date with attachments RST‑34 and RST‑35 (second confidential Tucker affidavit). Alistair Ronald Fleming also made a confidential affidavit which was sworn on 15 June 2023 and was read in support of the second application.
All of the affidavits were relied upon for the purpose of this third application. The affidavits filed for the purposes of the first and second applications provide context.
These reasons are expressed so as to not disclose the substance of the confidential information which is before the court and which has been weighed in the balance in the determination of this third application.
Counsel for the plaintiffs further referred to and relied upon the written outline of submissions filed on 30 June 2023.
Background and context in which the third application is made
The background to the third application and the context in which it is made is summarised in the submissions filed in support of the third application which submissions drew from the affidavits filed to date.
On 13 June 2023, the plaintiffs sought and were granted certain orders including relief under s 447A of the Corporations Act: Re Aerison Group Ltd (Administrators Appointed) [2023] WASC 274 [5] to [109]; sch A. The circumstances giving rise to the application made on 13 June 2023 were set out in the first Tucker affidavit, and the first confidential Tucker affidavit.
As was noted at the hearing of the first application, the administrators were then actively pursuing and focused on steps to stabilise the Group Companies. This was to enable the administrators to comply with the overall object of pt 5.3A of the Corporations Act (as stated in s 435A). That is, to maximise the chances of the company involved or as much as possible of its business continuing in existence; or to achieve a better return for the company's creditors and members than would otherwise result from an immediate winding up of the company.
To this end, the administrators sought and obtained funding to meet the operating costs of the Group Companies in administration, including the first employee payroll cycle of the administration; and took steps to set up and support a sale process.[1]
[1] Re Aerison Group Ltd (Administrators Appointed) [14], [16], [25] ‑ [27]; submissions filed 29 June 2023 par 7.
By prosecuting the second application, the administrators sought and were granted additional orders on 15 June 2023, which included relief under s 447A of the Corporations Act: Re Aerison Group Ltd (Administrators Appointed) [110] to [150]; sch B. The circumstances giving rise to the second application made on 15 June 2023 were set out in the second Tucker affidavit, the second confidential Tucker affidavit, and the confidential Fleming affidavit.
At the time of the second application, I understood the administrators to be focused on:[2]
(a)their review and assessment of the projects and contracts of the Group Companies;
(b)negotiating terms with existing principals and subcontractors;
(c)negotiating terms with existing suppliers of which there were around 300;
(d)updating creditors and interested parties in relation to the orders made on 13 June 2023; and
(e) furthering the sale process, which included facilitating interested party access to the data room, and preliminary due diligence.
Work undertaken and to be completed
[2] Re Aerison Group Ltd (Administrators Appointed) [118] ‑ [122]; submissions filed 29 June 2023 par 10.
In the submissions filed in support of the third application, it was submitted that since their appointment on or about 6 June 2023, the administrators had been diligently working with a view to presenting a thorough report and advising accurately on the most appropriate option for the purpose of the second meeting of creditors.
However, given the complexity of the structure, financial situation and businesses of the Group Companies, the number of creditors, and the timing requirements of bidders in the sale process, it had become evident that extension of the convening period was required.[3]
[3] Submissions filed 29 June 2023 par 24.
As outlined in the third Tucker affidavit, as at 29 June 2023 the administrators had undertaken the following tasks:[4]
(a) negotiation and entry into a funding agreement to support the working capital requirements of the Group Companies in the administration;
(b) the renegotiation of various contracts;
(c) liaising with various interested parties including, employees, suppliers, leaseholders, customers and creditors (secured and unsecured) regarding the continuity of the businesses of the Group Companies;
(d) a review of the businesses and key assets of the Group Companies;
(e) review of the books and records of the Group Companies. In this regard, the administrators identified that they were generally comingled. Further, the administrators had sought and received a broad range of financial information and other data pertaining to the Group Companies, comprising of approximately 400 documents; and
(f) commenced a sale process with a view to securing a potential buyer for the businesses and/or the assets of the Group Companies.
[4] Submissions filed 29 June 2023 par 25, referring to the third Tucker affidavit pars 7, 8(a), 8(b), 9, 10 and 16.
It was submitted that the administrators require further time to allow the sale of the businesses of the Group Companies to proceed as a going concern, to enhance the return to creditors, and to comply with their statutory obligations.
Sale process
As to the sales process, it was submitted that it would likely be prolonged:[5]
(a) due to the rigorous due diligence processes, parties were interested and engaged in, which processes must be completed before the making of final offers, and which processes are resource intensive, time‑consuming and complex;
(b) as the administrators were engaging in what may become extended negotiations with bidders and their obligation to carefully assess any deed of company arrangement (DOCA) proposals;
(c) due to the complexity of the structure, businesses and contracting arrangements of the Group Companies;
(d) due to the resultant complexity of any DOCA proposal for the Group Companies in comparison to a DOCA proposal for a single trading entity; and
(e) to allow the administrators time to consult the committee of inspection with any proposals received, if required.
Report preparation
[5] Submissions filed 29 June 2023 par 27, referring to the third Tucker affidavit par 11(b).
Mr Tucker deposed that the administrators do not presently have sufficient information to prepare a compliant report to creditors as required by r 75-225(3) of the Insolvency Practice Rules (Corporations), so as to provide the creditors with an informed basis on which to decide the fate of the Group Companies.[6]
[6] Submissions filed 29 June 2023 par 28, referring to the third Tucker affidavit par 10.
It was submitted that an extension was necessary to enable the administrators to properly discharge their obligations as:[7]
(a) it is necessary for the administrators to continue to undertake a rigorous and effective sales campaign, and negotiations for the sale of the Group Companies' businesses as a going concern in order to maximise the outcome for creditors (which process is likely to be prolonged due to the factors outlined above at [26]);
(b) the administrators are required to investigate and quantify any claims that the Group Companies may have;
(c) the administrators are required to determine any claims against the Group Companies that would exist in liquidation, thereby allowing the creditors a more fully informed decision; and
(d) the volume of the data of the Group Companies will likely mean that the process of evaluating, filtering and assessing the data will take a significant amount of time.
The extension sought
[7] Submissions filed 29 June 2023 par 30, referring to the third Tucker affidavit par 11.
Mr Tucker deposed that in the absence of an extension, it would be necessary for the second creditors meeting for each of the Group Companies to be called and then adjourned; and in his opinion, such an approach would not be in the interests of creditors given the costs that would be incurred.[8]
[8] Submissions filed 29 June 2023 par 31, referring to the third Tucker affidavit par 13.
Mr Tucker also deposed:
(a)to his belief that an extension of the convening period of up to eight weeks (being a period shorter than the administrators might secure by adjourning the meetings) should allow the administrators sufficient time within which to complete the outstanding tasks described in pars 10 ‑ 11 of his third affidavit (summarised at [27] and [28] above);[9]
(b)to his belief that an extension of eight weeks should enable the administrators to undertake a proper process to sell or recapitalise the businesses of the Group Companies and maximise the potential return for creditors of the Group Companies;[10] and
(c)that in his opinion, the extension of the convening period to 29 August 2023 would be in the best interests of the creditors of the Group Companies.[11]
[9] Submissions filed 29 June 2023 par 29, referring to the third Tucker affidavit par 14.
[10] Submissions filed 29 June 2023 par 33; third Tucker affidavit par 14.
[11] Submissions filed 29 June 2023 par 29, referring to the third Tucker affidavit pars 14 and 16.
He further deposed to his belief that the requested extension will give the administrators sufficient time to:[12]
(a) complete the investigations required to be able to prepare a fulsome and accurate report to creditors in accordance with r 75‑225(3) of the Insolvency Practice Rules (Corporations);
(b) enable the administrators to seek to conclude a sale of the Group Companies' businesses as a going concern; and
(c) permit the businesses to continue to trade on, which will assist with a potential sale of the businesses or assets to maximise the return to creditors.
[12] Submissions filed 29 June 2023 par 29, referring to the third Tucker affidavit pars 12, 11(b) and 15(d).
At pars 15 to 17 of the third Tucker affidavit, Mr Tucker referred to and addressed the effect of the extension on creditors of the Group Companies. He deposed that the administrators were unaware of any specific prejudice that would be suffered by the creditors of the Group Companies if an extension of the convening period were granted. In this regard, Mr Tucker noted that:[13]
(a) the administrators do not believe that immediate liquidation (as opposed to further extending the convening period) will produce a better outcome for the Group Companies' creditors;
(b) the extension sought is for a limited period;
(c) the administrators will continue to pay wages and other entitlements of employees during the course of the administration of the Group Companies;
(d) the administrators considered the continued trading of the businesses to be in the interests of the creditors and employees of the Group Companies. In this regard it was noted that it is the intention of the administrators, at this point in time, to retain all employees so as to maintain business operations, and it is likely that majority of such employees will be retained post‑sale to any incoming purchaser, albeit retention will be subject to the terms and conditions of any acquisition; and
(e) the administrators had informed the creditors of the Group Companies of the third application by letter or circular, and by publication on the KordaMentha website. They had not been notified of any objection to the third application.
[13] Third Tucker affidavit par 15, RST‑37.
Mr Tucker deposed to his opinion that any prejudice that may be caused to the creditors of the Group Companies by the requested extension was outweighed by the benefits to creditors conferred by the additional time available to complete any sale or other process.[14]
[14] Third Tucker affidavit par 16.
Finally, it was made plain that the administrators intend to only use the amount of the extended convening period as is required to ensure (as far as possible) the best outcome for creditors. That is, the administrators by the third application seek a form of orders that will allow them to end the administration as soon as possible after the sale process is complete and a viable offer is negotiated and received.[15]
[15] Third Tucker affidavit par 17.
Disposition
In the determination of the third application, I have had regard to the objects and scheme of pt 5.3A of the Corporations Act, and the court's function as discernible from that part.[16] In considering this application to extend the convening period made pursuant to s 439A(6), I have had regard to and apply the following principles:[17]
(1)The short time frames are an element of the scheme of the Act, the purpose being that creditors should be fully informed about the company's position and have the opportunity to vote as soon as possible.
(2)However, the prospects of a better return to creditors may outweigh the expectation and desirability of prompt resolution. The exercise of power under s 439A(6) involves a balancing of these considerations.
(3)In considering an application for an extension, the court must take into account the detriment to third parties, including the suspension of rights and remedies of secured creditors, lessors and others.
(4)An important question on such an application is whether an extension is necessary to enable the administrator to prepare reports and to come to the opinion required by s 439A(4) to inform creditors as to the appropriate choice between the options of a deed on company arrangement for the administration to end or for the company to be wound-up.
(5)Any extension should be for no longer than is necessary for an informed decision to be made as to whether to enter into a deed of company arrangement winding up the company or the enter the administration.
[16] As observed by Banks-Smith J in Re Reid Group Pty Ltd (Administrators Appointed); Ex parte Kirman & Bauer [2017] WASC 219 [4], the objects and scheme of pt 5.3 of the Corporations Act were outlined in Flynn v Theobold [2008] WASC 263 [36] ‑ [53] (Beech J); and Re Windimurra Vanadium Ltd & Midwest Vanadium Pty Ltd [2009] WASC 71 [2] ‑ [9] (Beech J). As to the court's function, see Mighty River International Ltd v Hughes [2017] WASCA 152; (2017) 52 WAR 1, 29 ‑ 30 [124] ‑ [125] (Buss P), referring to Re Riviera Group Pty Ltd (Admins Apptd) (Recs and Mgs Apptd) [2009] NSWSC 585; (2009) 72 ACSR 352, 354 ‑ 357 [8] ‑ [18] (Austin J).
[17] Re Reid Group Pty Ltd (Administrators Appointed): Ex parte Kirman & Bauer [4(1) ‑ (5)], citing Cameron Shaw and Richard Albarran in their Capacity as Joint and Several Administrators of Home Art Building Group Pty Ltd (Administrators Appointed) v Home Art Building Group Pty Ltd (Administrators Appointed) [2016] WASC 274 [18] (Beech J).
I also have had regard to, and applied the principles set out at pars 12 ‑ 22 of the plaintiffs' written outline of submissions filed in support of the third application.
As to the reasons which ground this application for extension, I am satisfied that they are reasons that fall within recognised categories for relief.
I am satisfied that the need for extension is not a result of the administrators sitting on their hands.
I have had regard and given weight to the considered judgment of the administrators as deposed to by Mr Tucker. I give particular weight to the opinion expressed by Mr Tucker that the requested extension is necessary to enable the administrators to properly discharge their obligations, given the cogent reasons expressed to ground that opinion. On the evidence of Mr Tucker, I am satisfied that the extension of time is intended to facilitate sensible and constructive actions directed to maximising the return for creditors.
I have also had regard to the fact that entities within the Group Companies are indebted to the Commonwealth Bank of Australia (CBA). I note that CBA, the first ranking secured creditor, is on notice of the third application, and does not oppose it.[18]
[18] First Bumbak affidavit par 4, JAB-1.
Further, I have had regard to the fact that the Australian Securities and Investment Commission (ASIC) and the Department of Employment and Workplace Relations that manages the Fair Entitlements Guarantee (FEG) have been informed of the application.[19] I am informed that no objection from any notified party has been received.
[19] Third Tucker affidavit par 20; first Bumbak affidavit pars 5 - 6.
Taking into account all of the evidence before me, and the submissions made, I am satisfied that the convening period should be extended.
The court must reach an appropriate balance between an expectation that the administration will be relatively speedy, that the administrators will expeditiously pursue an outcome for creditors, and the countervailing factor that undue speed should not be allowed to prejudice sensible and constructive actions directed to maximising the return for the creditors.
An extension of eight weeks is relatively short and is less than the period for which a meeting might ordinarily be adjourned. The requested extension will enable the administrators' diligent pursuit of outstanding tasks, most importantly the sale process, while at the same time ensuring that the creditors' exercise of their right to determine the future of the Group Companies is not unduly delayed and is made on an appropriately informed basis.
In considering whether it is appropriate to grant the application, I have had regard to potential detriment to third parties, including those impacted by order 5 of the orders made on 13 June 2023.[20] I am cognisant that there are third parties whose proceeding, including in an arbitration or adjudication, will remain subject to the statutory moratorium pursuant to s 440D of the Corporations Act. That said, as at 30 June 2023, no objection to the third application has been agitated, nor has any objection to the operation of order 5 of the orders made on 13 June 2023 been agitated before the court by any party affected by the same.
[20] Re Aerison Group Ltd (Administrators Appointed) [17] ‑ [24]; sch A.
The administrators continue to trade on the businesses of the Group Companies, and the extension is sought in a context where there is a real prospect of a DOCA proposal emerging, such that on the evidence before me, the potential benefits to creditors associated with a proposal appears to outweigh prejudice to creditors impacted by any extension to the statutory moratorium which arises due to an extension of the convening period.
Finally, I am prepared to make an order as proposed in order 2 of the interlocutory process pursuant to s 447A of the Corporations Act. The principles to be applied when exercising the power afforded by s 447A were summarised in Re Aerison Group Ltd (Administrators Appointed) at [31] to [36], and I adopt the same as if reproduced here in full.
Absent such an order, the administrators must hold the second meetings of creditors within five business days after the end of the extended convening period. The meetings could not be held prior to the end of the extended convening period even if the administrators were ready to proceed and it was convenient and desirable that they not wait.
I accept that s 447A(1) gives power to make order 2 as promoted on behalf of the plaintiffs.[21] Further, as a matter of discretion, I think it appropriate that the administrators be enabled to convene the meetings to be held on a date prior to the extended convening period if this is thought desirable, rather than being compelled to wait.[22]
Confidentiality
[21] In the matter of Daisytek Australia Pty Ltd [2003] FCA 575 [14] (Lindgren J).
[22] As was the conclusion of Lindgren J in In the matter of Daisytek Australia Pty Ltd at [18].
I am satisfied that the third confidential Tucker affidavit contains confidential information, and the application for a confidentiality order is appropriately made. In all of the circumstances, I am satisfied that it is appropriate to restrict access to the third confidential Tucker affidavit pursuant to the RSC O 67B r 5(b), which shall be treated as confidential and not be published or disclosed except pursuant to an order of the court, on notice to Mr Tucker.
Costs
It is appropriate that the costs of and incidental to the third application be costs and expenses in the external administration of Group Companies, and I will order that such costs be so treated.
Orders
For these reasons, I consider it will be in the best interests of the creditors of the Group Companies if the convening period is extended in accordance with the third application. The orders made on 30 June 2023, which included a restriction order in relation to the third confidential Tucker affidavit, are reproduced at sch A to these reasons.
Sch A - Orders made on 30 June 2023
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LP
Associate to the Honourable Justice Strk
26 JULY 2023
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