Re Aerison Pty Ltd (Administrators Appointed) - [2023] WASC 360

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE AERISON PTY LTD (ADMINISTRATORS APPOINTED); EX PARTE AERISON PTY LTD [2023] WASC 360
CORAM:   LUNDBERG J
HEARD:   21 SEPTEMBER 2023
DELIVERED          :   21 SEPTEMBER 2023
FILE NO/S:   COR 146 of 2023
MATTER:   IN THE MATTER OF AERISON PTY LTD (ADMINISTRATORS APPOINTED) & ORS

EX PARTE
RICHARD SCOTT TUCKER, CRAIG PETER SHEPHARD AND JOHN ALLAN BUMBAK in their capacities as joint and several administrators of 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)
First Plaintiff
AERISON PTY LTD (ACN 060 786 656) (ADMINISTRATORS APPOINTED)
Second Plaintiff
AERISON ENERGY SERVICES PTY LTD (ACN 665 237 392) (ADMINISTRATORS APPOINTED)
Third Plaintiff
AERISON EPC PTY LTD (ACN 640 499 387) (ADMINISTRATORS APPOINTED)
Fourth Plaintiff
AERISON HOLDINGS PTY LTD (ACN 149 198 176) (ADMINISTRATORS APPOINTED)
Fifth Plaintiff
AERISON MECHANICAL AND ELECTRICAL TECHNOLOGY PTY LTD (ACN 620 639 974) (ADMINISTRATORS APPOINTED)
Sixth Plaintiff
AERISON SERVICES PTY LTD (ACN 617 466 529) (ADMINISTRATORS APPOINTED)
Seventh Plaintiff

Catchwords:

Corporations - External administration - Urgent application for orders pursuant to s 447A of the Corporations Act 2001 (Cth) - Administrators unable to have Deed of Company Arrangement executed following insoluble impasse with original proponent - Second meeting of creditors already held - Alternative and viable DOCA proposal available - Orders sought to modify operation of the Act to allow further second meeting of creditors to be convened and alternative DOCA proposal to be considered - Balancing of the benefits and detriments of the outcomes under pt 5.3A - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 447A
Insolvency Practice Rules (Corporations) 2016 (Cth), s 75-20
Insolvency Practice Schedule(Corporations) (Cth), s 90-15

Result:

Application granted

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr P R Edgar
Second Plaintiff	:	Mr P R Edgar
Third Plaintiff	:	Mr P R Edgar
Fourth Plaintiff	:	Mr P R Edgar
Fifth Plaintiff	:	Mr P R Edgar
Sixth Plaintiff	:	Mr P R Edgar
Seventh Plaintiff	:	Mr P R Edgar

Solicitors:

First Plaintiff	:	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

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

Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270
Deputy Commissioner of Taxation v Portinex Pty Ltd [2000] NSWSC 99; (2000) 156 FLR 453
Hurt v Ausroc Metals Ltd [2017] WASC 169
In the matter of Mediacloud Pty Ltd [2021] NSWSC 357
Re Aerison Group Ltd (Administrators Appointed) [2023] WASC 274
Re Aerison Group Ltd (Administrators Appointed) [No 2] [2023] WASC 275
Re Ansett Australia Ltd v Sydney Airports Corporation Ltd [2002] FCA 530; (2002) 120 FCR 310; (2002) 41 ACSR 352
Re Eastmark Holdings Pty Ltd (recs and mgrs apptd) [2015] NSWSC 1437
Re Kruger Engineering Pty Ltd [2006] NSWSC 1063; (2006) 60 ACSR 191
Robert Michael Kirman as joint and several receiver of the Michael Fotios Family Trust v Delta Resource Management Pty Ltd [2023] WASC 266

Table of Contents

A. Introduction

B. An insoluble impasse with the DOCA

C. The relief sought by the Administrators

D. Disposition

E. Orders

ATTACHMENT A ORDERS MADE BY THE COURT ON 21 SEPTEMBER 2023

LUNDBERG J:

A. Introduction

This proceeding was commenced in urgent circumstances on 15 September 2023 by the Administrators[1] who have been appointed to various companies in the Aerison Group.[2] The proceeding is brought pursuant to s 447A of the Corporations Act 2001 (Cth) (CA) and s 90‑15 of the Insolvency Practice Schedule (Corporations) which forms Schedule 2 to the CA (IPS).[3]
[1] Mr Richard Scott Tucker, Mr Craig Peter Shepard, and Mr John Allan Bumbak (as joint and several administrators).
[2] The companies are Aerison Pty Ltd, Aerison Energy Services Pty Ltd, Aerison EPC Pty Ltd, Aerison Holdings Pty Ltd, Aerison Mechanical and Electrical Technology Pty Ltd and Aerison Services Pty Ltd. The Administrators have also been appointed to Aerison Group Ltd, but that entity is not a plaintiff to the present proceedings, as confirmed by counsel at the hearing today.
[3] References to statutory provisions in these reasons are to provisions of the CA, unless otherwise stated.
The application was commenced by originating process, accompanied by a certificate of urgency, and supported by three affidavits of one of the Administrators, Mr Richard Scott Tucker, sworn on 15 September 2023 (First Tucker Affidavit), 19 September 2023 (Second Tucker Affidavit) and 20 September 2023 (Third Tucker Affidavit). A comprehensive outline of submissions was provided to the court on 20 September 2023, together with a proposed amended originating process which clarified the relief sought. The matter was heard on 21 September 2023, with short notice being given to creditors of the Aerison Group and to relevant regulators.
The background to the appointment of the Administrators to the Aerison Group is helpfully set out in the earlier decisions of Strk J in Re Aerison Group Ltd (Administrators Appointed)[4] and Re Aerison Group Ltd (Administrators Appointed [No 2].[5] The orders made by Strk J in relation to the three applications which are the subject of those sets of reasons are detailed in the schedules to her Honour's reasons.
[4] Re Aerison Group Ltd (Administrators Appointed) [2023] WASC 274.
[5] Re Aerison Group Ltd (Administrators Appointed) [No 2] [2023] WASC 275.
It is sufficient to note for present purposes that the Administrators were appointed on 6 June 2023 pursuant to s 436A and pursuant to written resolutions of the boards of the various companies in the Aerison Group. The Administrators have, since their appointment, considered it appropriate to continue to trade the group as a going concern, while exploring options for recapitalisation or a sale of the Aerison Group. An expression of interest campaign has been undertaken. That led to certain proposals being received, the most viable of which was, according to the Administrators, a Deed of Company Arrangement (DOCA) proposal from an entity described as Pacific Industrial Company (PIC).[6]
[6] First Tucker Affidavit [7] - [13].
On 31 August 2023, the second creditors' meeting was convened but adjourned in order to allow the recommended DOCA proponent to provide a signed final term sheet to provide certainty to creditors of the proposed deal. The recommended DOCA proponent provided a signed copy of the term sheet on 4 September 2023, and the second creditors' meeting was reconvened on the same date, with a majority of creditors then passing a resolution pursuant to s 439C that the Aerison Group execute a DOCA with PIC.[7] I have reviewed the minutes of the second meeting of creditors which have been adduced as part of the application, and which include a detailed slide deck prepared by the Administrators to update creditors.[8]
[7] First Tucker Affidavit [11] - [16]; Second Tucker Affidavit [6] and [7].
[8] Second Tucker Affidavit, Attachment RST-29.

B. An insoluble impasse with the DOCA

In the period between 4 September 2023 and 12 September 2023, the Administrators worked with representatives of PIC to transition trading supervision to PIC, agree a fulsome DOCA, finalise the formal documentation, and work through the conditions precedent of the DOCA. Extensions of time have been agreed to facilitate this process. Unfortunately, the process reached an insoluble impasse and PIC has informed the Administrators it will not be proceeding with the DOCA.[9]
[9] First Tucker Affidavit [17] - [19].
This unexpected development has put the Administrators, and the Aerison Group companies, in a difficult position.
Pursuant to s 444B, a company is required to execute a DOCA prepared under s 444A within 15 business days after the end of the meeting of creditors (which is by 26 September 2023, given that Monday, 25 September 2023 is a public holiday in Western Australia). The DOCA which was the subject of the vote at the second creditors' meeting is, however, not capable of being executed by the Administrators, given the impasse to which I have referred. The effect of a failure to execute a DOCA in conformity with the creditors' resolution within the 15 business day period is that the deed will be invalid and the companies in the Aerison Group will be taken to have passed into a creditors' voluntary winding up, by reason of s 446A(1)(b).
I will set out the critical statutory provisions to which I have just referred. First, s 444A and s 444B, which are found in pt 5.3A div 10, relevantly provide as follows:
444A.Effect of creditors' resolution
(1)This section applies where, at a meeting convened under section 439A, a company's creditors resolve that the company execute a deed of company arrangement.
(2)The administrator of the company is to be the administrator of the deed, unless the creditors, by resolution passed at the meeting, appoint someone else to be administrator of the deed.
(3)The administrator of the company must prepare an instrument setting out the terms of the deed.
…
444B.Execution of deed
(1)This section applies where an instrument is prepared under section 444A.
(2)The company must execute the instrument within:
(a)15 business days after the end of the meeting of creditors; or

(b)such further period as the Court allows on an application made within those 15 business days.

(3)The board of the company may, by resolution, authorise the instrument to be executed by or on behalf of the company.
(4)Subsection (3) has effect despite section 198G, but does not limit the functions and powers of the administrator of the company.
(5)The proposed administrator of the deed must execute the instrument before, or as soon as practicable after, the company executes it.
(6)When executed by both the company and the deed's proposed administrator, the instrument becomes a deed of company arrangement.

(7)Division 12 provides for consequences of the company contravening subsection (2).

Section 446A, which appears in pt 5.3A div 12, relevantly provides as follows:
446A.Administrator becomes liquidator in certain cases
(1)This section applies if:
(a)the creditors of a company under administration resolve at a particular time under paragraph 439C(c) that the company be wound up; or
(b)a company under administration contravenes subsection 444B(2) at a particular time; or
(c)the company's creditors:
(i)pass a resolution terminating a deed of company arrangement executed by the company; and
(ii)also resolve at a particular time under section 445E that the company be wound up.
(2)The company is taken:
(a)to have passed, at the time referred to in paragraph (1)(a) or (b) or subparagraph (1)(c)(ii), as the case may be, a special resolution under section 491 that the company be wound up voluntarily; and
(b)to have done so without a declaration having been made and lodged under section 494.
…

C. The relief sought by the Administrators

The Administrators consider it desirable to avoid the outcome which would follow from the ordinary application of the foregoing provisions, and accordingly they seek urgent relief from the court.
As explained by counsel at today's hearing, the Administrators propose that a further second meeting of creditors be held tomorrow (22 September 2023) in order to consider an alternative DOCA proposal, which the Administrators have taken prompt steps to identify. The alternative DOCA proponent is Applied Pollution Control Pty Ltd trading as APCINFRA (APC). That company has provided the Administrators with a term sheet and paid a non‑refundable deposit to the Administrators.[10] The Administrators and APC have now executed a term sheet outlining a DOCA proposal and entered into an exclusivity agreement.[11] The alternative DOCA proposal is materially different to the original DOCA proposed by PIC. It will involve a contribution of $5.08 million and the establishment of a creditors' trust. The trust will comprise the DOCA contribution, any debtors, other receivables and retentions owing to the companies arising from the pre-appointment and voluntary administration period, the proceedings arising from the claims against Roy Hill, cash held by the Administrators, and all tax refunds arising from the pre-appointment and voluntary administration period.[12]
[10] First Tucker Affidavit [22].
[11] First Tucker Affidavit [25] - [27].
[12] First Tucker Affidavit [28].
It should be recognised that the court has power, conferred by s 444B(2)(b), to extend the 15 business day period to enable a DOCA to be executed. The Administrators do not apply under this provision, given that:
(a)additional time would not assist to enable the Administrators to have the original DOCA, which was approved by creditors, executed; and
(b)there is authority to the effect that the execution of a revised or different DOCA would not be one that was executed pursuant to a meeting under s 439A (I refer to the analysis of Brereton J in Re Eastmark Holdings Pty Ltd (recs and mgrs apptd),[13] as approved by Ward CJ in Eq in In the matter of Mediacloud Pty Ltd,[14] in this regard).
[13] Re Eastmark Holdings Pty Ltd (recs and mgrs apptd) [2015] NSWSC 1437.
[14] In the matter of Mediacloud Pty Ltd [2021] NSWSC 357.
So, s 444B(2)(b) will not assist to advance matters, and thus a further second meeting of creditors is now proposed, relying on the power in s 447A as explained below. The Administrators circulated notice to creditors of the proposed further meeting on 14 September 2023.[15] That notice stated in part:
In order for creditors of the Companies to vote on the APC DOCA, the administrators will seek court orders, and subject to the court making the relevant orders a further second creditors' meeting will be held pursuant to Section 439A of the Act ('the Meeting of Creditors') to consider the future of the companies. If the court does not grant the relief sought, a further notice will be issued to confirm that the meeting has been cancelled.[16]
[15] Third Tucker Affidavit Attachment RST-33.
[16] Third Tucker Affidavit Attachment RST-33, pg 5.
An updated report from the Administrators was published on the Administrators' website on 15 September 2023, providing details of the alternative DOCA.[17]
[17] Third Tucker Affidavit Attachment RST-33, pg 5.
The Administrators thus seek relief to the following effect:[18]
(a)orders under s 447A that pt 5.3A is to operate in relation to the Aerison Group such that a further second meeting may be held on 22 September 2023 (called by the notice given on 14 September 2023), and that meeting will in effect be a meeting of creditors convened under s 439A;
(b)orders that, at the further second meeting, for the purposes of any resolution pursuant to s 439C, the creditors may resolve only that the companies in the Aerison Group execute a DOCA specified in the resolution, or the companies be wound up; and
(c)orders under s 90-15 IPS that 75-225 IPR is to operate as if the notice issued by the Administrators on 14 September 2023 calling the further second meeting is valid notice to eligible creditors of that meeting, together with associated orders to facilitate notice being given.
[18] First Tucker Affidavit [32] - [36] and the amended originating process.
The Administrators rely on the power in s 447A, which relevantly provides as follows:
447A.General power to make orders
(1)The Court may make such order as it thinks appropriate about how this Part is to operate in relation to a particular company.
(2)For example, if the Court is satisfied that the administration of a company should end:
(a)because the company is solvent; or
(b)because provisions of this Part are being abused; or
(c)for some other reason;
the Court may order under subsection (1) that the administration is to end.
(3)An order may be made subject to conditions.
(4)An order may be made on the application of:
(a)the company; or
(b)a creditor of the company; or
(c)in the case of a company under administration--the administrator of the company; or
(d)in the case of a company that has executed a deed of company arrangement--the deed's administrator; or
(e)ASIC; or
(f)any other interested person.
The court has broad powers to grant the relief which is sought, pursuant to s 447A, and also pursuant to s 90‑15 IPS.
The former provision confers an extremely wide jurisdiction on the court to make any order considered appropriate for the operation of the regime. I refer to the propositions concerning the scope and operation of s 447A collected by Austin J in Deputy Commissioner of Taxation v Portinex Pty Ltd.[19] The power may be utilised where an administrator is required to act quickly and there exists a gap in pt 5.3A which could otherwise be filled by such orders, in order to achieve the overriding objectives of pt 5.3A.[20]
[19] Deputy Commissioner of Taxation v Portinex Pty Ltd [2000] NSWSC 99; (2000) 156 FLR 453 [30] (Austin J).
[20] Re Aerison Group Ltd (Administrators Appointed) [2023] WASC 274 [34] (Strk J) and the authorities referred to therein.
The application of s 447A to achieve the result sought by the Administrators, and underpin the relief which is claimed, is supported by authority.[21] Indeed, the relief presently sought is less expansive than has been considered appropriate in those other authorities. It is also significant that, had the original DOCA proponent withdrawn from the negotiations ahead of the second meeting of creditors, rather than after that meeting, the Administrators would have had power to adjourn the meeting for up to 45 business days to allow the sale process to have continued. Accordingly, an exercise of the power in s 447A to achieve the result sought by the Administrators would be congruent with the ordinary operation of pt 5.3A, albeit on different factual circumstances. The timing of the original DOCA proponent's withdrawal should not, in my view, dictate the appropriate outcome for this group of companies, its creditors, and its employees.
[21] Re Kruger Engineering Pty Ltd [2006] NSWSC 1063; (2006) 60 ACSR 191; Re Eastmark Holdings Pty Ltd (recs and mgrs apptd; and In the matter of Mediacloud Pty Ltd.
It should be mentioned that the operation of s 447A has been considered in some detail by the High Court. I refer to Australasian Memory Pty Ltd v Brien.[22] The administrator in that case failed to comply with statutory time requirements for the convening of a second meeting of creditors. The consequence of this was that the creditors' resolution at that meeting to wind up the company was ineffective. This led to certain statutory demands being set aside because the second meeting had not been convened in accordance with the requirements of pt 5.3A of the Act.
[22] Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270.
An order was thereafter made, in reliance on s 447A, that had the effect of altering the requirement in pt 5.3A in relation to the time within which the second meeting was to be convened. As from the date of the order the second meeting complied with the altered requirement and the resolution to wind up the company was effective. The High Court upheld the order, concluding there was nothing on the face of the provision that suggested it should be read down. Further, the court stated:
In particular, the words of the provision are wide enough to confer power to make orders which will have effect in the future but which are occasioned by something that has been done (or not done) under the other provisions of Pt 5.3A before application is made under s 447A(1).[23]
[23] Australasian Memory Pty Ltd v Brien [17].

The court continued:
... Section 447A is an integral part of the legislative scheme provided for by Pt 5.3A. In its terms, it enables the making of orders which alter the way in which 'this Part is to operate in relation to a particular company'. That is, it permits the making of orders which would alter how s 439A is to apply. It is not right to seek to characterise s 447A as some general source of power to which resort cannot be had because to do so would 'circumvent' the statutory limitations upon the exercise of the power that is given by s 439A(6) to extend the convening period. So to characterise s 447A is to give to all of the other provisions of Pt 5.3A a fixed and unchanging operation in relation to all companies. Yet the evident legislative intention of s 447A is to permit alterations to the way in which Pt 5.3A is to operate.[24]
[24] Australasian Memory Pty Ltd v Brien [24].
As to the breadth of the power in s 90‑15 IPS, I refer to the various authorities which I reviewed in Robert Michael Kirman as joint and several receiver of the Michael Fotios Family Trust v Delta Resource Management Pty Ltd.[25] The breadth of the provision is quite evident from the scope of s 90‑15(3)(a), which also supports the conclusion that the power accommodates the determination of substantive rights. Australian courts which have considered s 90‑15(1) have embraced the view that the provision should not read by making implications or imposing limitations that are not found in the express words of the provision.
[25] Robert Michael Kirman as joint and several receiver of the Michael Fotios Family Trust v Delta Resource Management Pty Ltd [2023] WASC 266 [20] - [23].
The power in s 90-15 supports the modification of rule 70-225 IPR to abridge the time required for giving notice of the further second meeting.[26] There is no prejudice to the creditors in doing so, given the Administrators gave prior notice of the meeting on 14 September 2023, and thus the creditors will have had 7 days' notice of the meeting.
[26] In the matter of Mediacloud Pty Ltd [48].

D. Disposition

Having regard to the written and oral submissions advanced by the Administrators and the evidentiary material adduced through the affidavits sworn by Mr Tucker, the appropriate balance between the typical administration process on the one hand, and allowing sensible and constructive actions to be undertaken to maximise the return for creditors, on the other hand, is to be resolved in this case by granting the relief sought by the Administrators.[27]
[27] Adopting the phrasing of Strk J in Re Aerison Group Ltd (Administrators Appointed [No 2] [43].
There is considerable force in the submission advanced by counsel for the plaintiffs that:
…the creditors should be afforded the opportunity to consider the Alternative DOCA Proposal and, with a looming date for mandatory liquidation, there is a gap in Part 5.3A which this Court has the power to fill by the invocation of the power under s447A of the Act.[28]
[28] Submissions [41].
In essence the relief should, in my view, be granted for the following reasons.
First, in all the circumstances, I am satisfied the application for relief has been brought for a proper purpose, and there is a logical nexus between the relief which is sought and the purported reason for the relief.[29] The Administrators are not seeking to avoid the consequences of the execution of the DOCA, such as in Re Ansett Australia Ltd v Sydney Airports Corporation Ltd.[30] The extension is sought to progress the DOCA process contemplated within pt 5.3A, albeit through an alternative proposal.
[29] Hurt v Ausroc Metals Ltd [2017] WASC 169 [12] and [15] (Pritchard J).
[30] Re Ansett Australia Ltd v Sydney Airports Corporation Ltd [2002] FCA 530; (2002) 120 FCR 310; (2002) 41 ACSR 352 [58].
Second, the inability of the Administrators to secure the execution of the DOCA with the preferred proponent (namely, PIC) has arisen through no fault, or lack of diligence, on the part of the Administrators. The reality is that the preferred proponent has decided that it cannot proceed forward to execution and the Administrators have been left to pursue other alternatives. As one might expect when dealing with a relatively rapid process being undertaken in respect of a company or companies which are subject to financial stress, the pathway to securing a DOCA does not always produce the projected outcome. These processes involve sometimes difficult and complex negotiations between insolvency professionals and businesspersons, against the backdrop of ongoing risk assessments where the risk profiles of those involved may alter as the negotiations develop and fluctuations occur in the participants' perceptions of the financial health of the subject companies.
Third, the Administrators have taken prompt steps to identify a suitable alternative DOCA proponent, namely APC. As noted, that company has provided the Administrators with a signed term sheet and paid a non‑refundable deposit to the Administrators. The Administrators and APC have now executed a term sheet outlining a DOCA proposal and entered into an exclusivity agreement. Accordingly, I am satisfied there is utility in granting the relief in that an alternative DOCA proponent has been identified and that proponent is, at least at this stage, prepared to engage with the Administrators to negotiate towards the execution of a final DOCA. If the relief is granted, the Administrators propose to convene a meeting of creditors tomorrow (22 September 2023) to determine whether the Aerison Group will execute the DOCA with APC, or be wound up.[31]
[31] First Tucker Affidavit [31].
Fourth, the Administrators have taken steps to directly update and to brief the employees of the Aerison Group. Two in person briefings have been held by the Administrators in this regard, in order to update employees on the withdrawal of PIC as a DOCA proponent and explain the new DOCA proposal.[32] The importance of updating the employees of a company under financial stress, such as the Aerison Group, given the uncertainty surrounding the future of the business over the past several months, cannot be overstated. Further, and more fundamentally, the alternative DOCA and continued trading of the businesses of the Aerison Group will allow the ongoing employment of the majority of employees.
[32] Third Tucker Affidavit [12].
Fifth, the alternative DOCA proposal which the Administrators wish to pursue is regarded by the Administrators as viable and, on my assessment, that appears to be a reasonable position for them to adopt. The alternative DOCA proposal would involve a significant contribution in funds being made by the proponent, with a creditors' trust being established in what appears to be a relatively orthodox fashion. The Administrators have also satisfied themselves that the proponent has the requisite financial capability to meet its obligations in the DOCA proposal.[33]
[33] First Tucker Affidavit [28] and [29].
Sixth, the return to creditors in the event the alternative DOCA is not entered into would be significantly worse and conversely the alternative DOCA proposal presents as a significantly more advantageous outcome for creditors.[34] In summary:
(a)under a high range DOCA scenario, secured creditors would recover the full amount of their claims, whereas under the low range scenario the Commonwealth Bank of Australia is estimated to recover $3.4 million from the DOCA in comparison to $1.6 million from a liquidation;
(b)under the alternative DOCA proposal, a high proportion of employees will retain their employment and entitlements, and there are some outcomes in a liquidation scenario in which employees will recover less than their full entitlements; and
(c)under the high range scenario for the alternative DOCA proposal, unsecured creditors are expected to receive 31.6 c/$ from the DOCA in comparison to 8.0 c/$ from a liquidation.
[34] Submissions [37]; First Tucker Affidavit Attachment RST-26, pgs 594 - 596.
Further, as to the position of the first ranking secured creditor of the Aerison Group, which is the Commonwealth Bank of Australia, there is now evidence before the court that the bank does not object to the orders which are being sought by the Administrators on this application.[35] There is another secured creditor, which has security over certain proceeds from the Roy Hill claims, and thus recovery in that regard is dependent on the outcome of those claims.[36]
[35] Second Tucker Affidavit [11].
[36] First Tucker Affidavit Attachment RST-26, pg 595.
Seventh, there is no delay to the period of administration through the pathway which is proposed by the Administrators. The further second meeting is proposed to be conducted within the 15 business day period mandated by s 444B(2) and so in effect there is no extension to the statutory moratorium.
Eighth, there is not likely to be any apparent material detriment to any third parties associated with the Aerison Group arising from the orders which are sought, including the contractors to the Aerison Group and the two landlords.[37] As to the position of the landlord of the property occupied by the companies in Forrestfield, I note the Administrators have relied on s 440B to enable the Aerison Group to retain possession of the property which is the subject of that lease.[38] This landlord, and the landlord of the property located in West Perth have confirmed they do not object to the orders which are being sought by the Administrators on this application.[39]
[37] First Tucker Affidavit [38] - [46].
[38] Second Tucker Affidavit [10].
[39] Second Tucker Affidavit [11].
Ninth, I am satisfied that appropriate notice has been given to the creditors of the Aerison Group through information which has been made available on the Administrators' website, and appropriate notice has been given by email directly to the Australian Securities and Investments Commission (ASIC) and to the Department of Employment and Workplace Relations as manager of the Fair Entitlement Guarantee (FEG).[40] As at the date of the hearing before me, no objection had been received from the FEG. ASIC has confirmed they do not propose to intervene and considered the matter to be properly left for the determination of the court, and no aspect of the application required regulatory intervention. ASIC thus neither opposes nor supports the Administrators' application.[41]
[40] First Tucker Affidavit [47] - [50]; Second Tucker Affidavit [15].
[41] Third Tucker Affidavit [13] and Attachment RST-34.

E. Orders

Ultimately, the evidence adduced on the application provides a cogent foundation to conclude that there are benefits to creditors associated with the alternative DOCA proposal, relative to the liquidation scenario, and they should be afforded the opportunity to consider that proposal tomorrow. Importantly, the Administrators' proposal does not involve any extension to the period of administration. The balancing exercise falls distinctly in favour of allowing the Administrators to present the alternative DOCA proposal to the creditors of the Aerison Group at tomorrow's meeting.
The foregoing reasons explain why I granted the relief sought by the Administrators at the hearing this morning. The orders I made are set out in Attachment A to these reasons.

ATTACHMENT A
ORDERS MADE BY THE COURT ON 21 SEPTEMBER 2023

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IHN
Associate to the Honourable Justice Lundberg
21 SEPTEMBER 2023