Re Dundas Mining Pty Ltd (in Liq) - [2025] WASC 157

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE DUNDAS MINING PTY LTD (IN LIQ); EX PARTE JOHN ALLAN BUMBAK as joint and several liquidator of DUNDAS MINING PTY LTD (IN LIQ) (ACN 608 839 050) [2025] WASC 157
CORAM:   HILL J
HEARD:   28 APRIL 2025
DELIVERED          :   28 APRIL 2025
PUBLISHED           :   6 MAY 2025
FILE NO/S:   COR 53 of 2025
MATTER:   IN THE MATTER OF DUNDAS MINING PTY LTD (IN LIQ) (ACN 608 839 050)
EX PARTE

JOHN ALLAN BUMBAK as joint and several liquidator of DUNDAS MINING PTY LTD (IN LIQ) (ACN 608 839 050)
RICHARD SCOTT TUCKER as joint and several liquidator of DUNDAS MINING PTY LTD (IN LIQ) (ACN 608 839 050)
Plaintiffs

Catchwords:

Corporations - External administration - Application by liquidators for leave to be appointed as voluntary administrators of company - Turns on own facts

Corporations - External administration - Application for orders to truncate the administration process and for stay of winding up of company - Turns on own facts

Legislation:

Corporations Act 2001 (Cth) s 436(2), s 447A, s 448C(1), s 482(1), sch 2 s 90‑15

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiffs

M R Davis

Solicitors:

Plaintiffs

Lavan

Cases referred to in decision:

Mansfield (liquidator), in the matter of NR Complex Pty Ltd (in liquidation) (receivers and managers appointed [2023] FCA 614
Parkes Leagues Club Co-op Limited (In Liq) [2004] NSWSC 16
Re Cobar Mines Pty Ltd (1998) 30 ACSR 125
Re Hughes (in his capacity as liquidator of each of Vah Newco No 2 Pty Ltd) (in liq) [2020] FCA 1121
Re Keldane Pty Ltd (in liq) [2011] VSC 385

HILL J:

(This judgment was delivered extemporaneously and has been edited from the transcript to include references, headings and to correct matters of grammar and expression.)

By originating process dated 9 April 2025, the plaintiffs seek a series of orders effectively to enable them to convene a meeting of creditors of Dundas Mining Pty Ltd (in liquidation) (Company) to consider and vote on a proposal for the Company to enter into a deed of company arrangement (DOCA).
Specifically, the plaintiffs seek orders that:
(1)leave be granted pursuant to s 436B(2)(g), s 448C(1)(b)(v), and s 448C(1)(g) of the Corporations Act 2001 (Cth) (Act) to enable them to be appointed as voluntary administrators of the Company;
(2)for the voluntary administration procedure to be truncated under s 447A of the Act;
(3)pursuant to s 90-15(1) of the Insolvency Practice Schedule (Corporations) (being Schedule 2 to the Act) (IPS), the plaintiffs are justified in not requiring or receiving a 'Report on Company Affairs and Property' (ROCAP) from the directors of the Company and not conducting further investigations into possible recovery actions that may be available if the liquidation were to proceed; and
(4)pursuant to s 482(1) of the Act, the winding up of the Company be stayed with effect from their appointment as voluntary administrators.
In support of the application, the plaintiffs relied on six affidavits being:

Grounds of appeal

[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.

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Details

Case: [2025] WASC 157
Decision Date: 6 MAY 2025

CaseChat Overview and Summary

In the matter of Dundas Mining Pty Ltd, the liquidators applied to the court for leave to be appointed as voluntary administrators of the company. The liquidators sought orders to truncate the administration process and for a stay of the winding up of the company. The court was required to decide whether the liquidators should be appointed as voluntary administrators and whether the administration process should be truncated and the winding up of the company stayed.

The court considered the specific circumstances of the case and whether the liquidators were suitable to be appointed as voluntary administrators. The court also considered the effect of a potential truncation of the administration process and whether it would be in the best interests of the company and its creditors. The court examined the merits of the application and whether the liquidators had provided sufficient evidence to support their application. The court found that the liquidators were suitable to be appointed as voluntary administrators and that it was in the best interests of the company and its creditors for the administration process to be truncated and for the winding up of the company to be stayed.

The court granted the liquidators leave to be appointed as voluntary administrators of the company. The court also made orders truncating the administration process and staying the winding up of the company. The court found that the liquidators had demonstrated that it was in the best interests of the company and its creditors for the administration process to be truncated and for the winding up of the company to be stayed. The court noted that the decision turned on the specific facts of the case and that each case must be considered on its own merits.

The court made orders appointing the liquidators as voluntary administrators of the company. The court also made orders truncating the administration process and staying the winding up of the company. The court noted that the orders were without prejudice to the rights of any party to apply for a review of the orders.

Orders