Re Mineral Crushing Services (WA) Pty Ltd (Administrator Appointed)

Case •

[2025] WASC 328

•

14 AUGUST 2025

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   RE MINERAL CRUSHING SERVICES (WA) PTY LTD (ADMINISTRATOR APPOINTED); EX PARTE DIXON as administrator of MINERAL CRUSHING SERVICES (WA) PTY LTD (ADMINISTRATOR APPOINTED) [2025] WASC 328

CORAM:   STRK J

HEARD:   11 AUGUST 2025 & UPON THE SUPPLEMENTARY EVIDENCE FILED ON 13 AUGUST 2025

DELIVERED          :   14 AUGUST 2025

FILE NO/S:   COR 121 of 2025

MATTER:   IN THE MATTER OF MINERAL CRUSHING SERVICES (WA) PTY LTD (ADMINISTRATOR APPOINTED) & MINERAL CRUSHING SERVICES HOLDINGS PTY LTD (ADMINISTRATOR APPOINTED)

EX PARTE

STEPHEN ROBERT DIXON as administrator of MINERAL CRUSHING SERVICES (WA) PTY LTD (ADMINISTRATOR APPOINTED) (ACN 160 844 904)

First Plaintiff

STEPHEN ROBERT DIXON as administrator of MINERAL CRUSHING SERVICES HOLDINGS PTY LTD (ADMINISTRATOR APPOINTED (ACN 165 310 485)

Second Plaintiff


Catchwords:

Corporations law - Application to extend convening period - Turns on own facts

Legislation:

Corporations Act 2001 (Cth) s 439A(6), s 447A
Rules of the Supreme Court 1971 (WA) O 67B r 5

Result:

Application granted

Category:    B

Representation:

Counsel:

First Plaintiff : D Pavey
Second Plaintiff : D Pavey

Solicitors:

First Plaintiff : Lavan
Second Plaintiff : Lavan

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

Australasian Memory Pty Ltd v Brien [2000] HCA 30; (2000) 200 CLR 270

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

Mighty River International Ltd v Hughes [2017] WASCA 152; (2017) 52 WAR 1

Re Byron Group Holdings Pty Ltd (administrators appointed) [2016] NSWSC 1947

Re Convergency Services Pty Ltd [2007] VSC 403

Re Daisytek Pty Ltd (administrators appointed) [2003] FCA 575; (2003) 45 ACSR 446

Re Foodora Australia Pty Ltd (Administrators Appointed) [2018] NSWSC 1426

Re Parker Logan Property Pty Ltd [2021] NSWSC 792

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 Silvia; Austcorp Group Ltd [2009] FCA 636

Re Windimurra Vanadium Ltd & Midwest Vanadium Pty Ltd [2009] WASC 71

STRK J:

Introduction

  1. Stephen Robert Dixon is a partner of the accounting firm, HM Advisory Pty Ltd, a chartered accountant and a registered liquidator. On 11 July 2025 Mr Dixon was appointed as the voluntary administrator of Mineral Crushing Services (WA) Pty Ltd (administrator appointed), and Mineral Crushing Services Holdings Pty Ltd (administrator appointed) (together, the Companies).

  2. The Companies provide mineral crushing and screening services for a variety of mining companies across Australia.[1] Mineral Crushing Services (WA) owns a business which operates the Doodlakine Quarry. Mineral Crushing Services (WA) leases equipment necessary for the movement and sale of its stock (comprising cracker dust and road base products) from Mineral Crushing Services Holdings.[2]

    [1] Affidavit of SR Dixon affirmed on 8 August 2025, par 9.

    [2] Affidavit of SR Dixon affirmed on 8 August 2025, pars 10.1, 10.5.

  3. Pursuant to s 439A(5)(B) of the Corporations Act 2001 (Cth), the convening period applicable to the Companies was to end on 8 August 2025, being 20 business days from the date of Mr Dixon's appointment as administrator. Pursuant to s 439A(2) of the Corporations Act, Mr Dixon was required to convene the second meetings of the creditors of each of the Companies on or before 15 August 2025, being five business days after the end of the convening period.

  4. Mr Dixon wishes to continue to progress the sale of the Doodlakine Quarry as a going concern, having formed the view that it is in the interest of the Companies and the Companies' creditors for the convening period to be extended, so as to maximise the chance of the Companies, or as much as possible of the Doodlakine Quarry business, to continue in existence as well as the possibility of a greater return to the majority of the creditors of the Companies than would result from an immediate winding up.[3]

    [3] Affidavit of SR Dixon affirmed on 8 August 2025, par 42.4.

  5. After 4.00 pm on the day the convening period applicable to the Companies was to end (that is, Friday, 8 August 2025), Mr Dixon caused an application to extend the convening period to be filed. These reasons concern that application, which was listed for hearing on an urgent basis.

  6. After hearing counsel on Monday, 11 August 2025 the application was adjourned so that further instructions could be taken, and any supplementary affidavit sought to be relied upon might be filed in support of the application.

Evidence

  1. At the hearing on 11 August 2025 counsel read two affidavits and sought to also rely upon a written outline of submissions filed on 11 August 2025. On 13 August 2025 a third affidavit was filed and was relied upon in support of the application. Set out below is an overview of the evidence read.

Mr Dixon's 'open' affidavit

  1. The first was the 'open' affidavit of Mr Dixon affirmed on 8 August 2025, to which Mr Dixon annexed documents marked SRD‑1 to SRD‑15.

  2. In his first affidavit Mr Dixon summarised his experience as a registered liquidator and his experience in advisory services, corporate recovery, corporate restructuring, and strategic and independent business reviews. He deposed to his appointment as administrator of the Companies on 11 July 2025, and described the Companies and the business of each.

  3. Mr Dixon deposed that Mineral Crushing Services (WA):[4]

    (a)owns a business which operates the Doodlakine Quarry, located on Mather Road, 12 kilometres east of Kellerberrin and two kilometres west of Doodlakine in Western Australia;

    (b)sells as its main product a material known as 'cracker dust' (also known as 'blue metal dust'), being a finely crushed material derived from its quarrying operations, and also sells road base products;

    (c)has current stock on hand comprising of cracker dust and road base products;

    (d)owns no equipment;

    (e)leases equipment necessary for the movement and sale of its stock (comprising cracker dust and road base products) from Mineral Crushing Services Holdings; and

    (f)leases the Doodlakine Quarry from the Shire of Kellerberrin.

    [4] Affidavit of SR Dixon affirmed on 8 August 2025, par 10.

  4. As to the lease, Mr Dixon noted that its terms permit termination if Mineral Crushing Services (WA) is wound up in liquidation, but expressly permits Mineral Crushing Services (WA) to continue to enjoy the benefit of the lease if it is in voluntary administration.[5]

    [5] Affidavit of SR Dixon affirmed on 8 August 2025, par 10.6, SRD-5 (Lease of Doodlakine Quarry, cl 23.1(2)).

  5. As to Mineral Crushing Services Holdings, Mr Dixon deposed that it:[6]

    (a)owns all plant and equipment used by Mineral Crushing Services (WA) in its operation of the Doodlakine Quarry;

    (b)leases equipment to Mineral Crushing Services (WA), which is used for the movement and sale of stock held by Mineral Crushing Services (WA); and

    (c)leases certain equipment from an equipment financing company, InFront Australian Business Solutions, which is the major secured creditor of the Companies.

    [6] Affidavit of SR Dixon affirmed on 8 August 2025, par 12.

  6. In his first affidavit Mr Dixon described his preliminary view as to the financial position of the Companies, and the basis for his view.[7] Among other things, he deposed that it is his preliminary view that the Companies' insolvency arose from the inability to pay the major secured creditor, InFront Australian Business Solutions, from whom the heavy earthmoving and rock crushing equipment necessary for operations was leased, which inability occurred over the last two years. He further deposed to his belief that the Companies are insolvent or would have imminently become insolvent had the Companies continued to trade as they had been traded.

    [7] Affidavit of SR Dixon affirmed on 8 August 2025, pars 14 - 19.

  7. Mr Dixon also deposed to the steps he took to identify the creditors of the Company; that on 15 July 2025, he issued an initial circular to creditors in respect of each of the Companies including the notices for the first meetings of creditors of each of the Companies; that at 10.00 am AWST on 23 July 2025, the first meeting of creditors of Mineral Crushing Services (WA) took place; and that at 11.00 am AWST on 23 July 2025, the first meeting of creditors of Mineral Crushing Services Holdings took place.

  8. At par 30 of his affidavit Mr Dixon described the steps he had taken in respect of each of the Companies since his appointment. Among other things, he deposed that since his appointment, Mineral Crushing Services (WA) had and continues to trade; that he had commenced and continued marketing the Doodlakine Quarry business of Mineral Crushing Services (WA) for sale as a going concern, inclusive of all equipment owned by Mineral Crushing Services Holdings; and that he had liaised with a number of parties in relation to their interest to acquire the Doodlakine Quarry business.

  9. At pars 31 to 35 Mr Dixon described the steps he had taken to progress the sale of the Doodlakine Quarry business as a going concern. Among other things, he deposed to having received eight expressions of interest from interested parties as at the date of his affidavit (8 August 2025), and one non‑refundable deposit and one signed confidentiality deed from one interested party. As to the sale process, Mr Dixon also deposed that he required further time to conduct the marketing and business sale process because:

    (a)matters necessary for the marketing and sale process, such as completion of valuations and discussions with the major secured creditor were completed as recently as 29 July 2025 and collection of the surplus assets was completed as recently as 30 July 2025; and

    (b)based on the matters he had deposed to in his affidavit, he believed that a marketing and sale process would likely take until 6 October 2025 (that is, 59 days from the end of the convening period).

  10. In his first affidavit Mr Dixon outlined an indicative timetable for the proposed marketing and sale of the Doodlakine Quarry business. He deposed that it was his expectation that by 6 October 2025 he will have prepared and issued a report to the creditors of each of the Companies in relation to business, property, affairs and financial circumstances pursuant to r 75‑225 of the Insolvency Practice Rules (Corporations) 2016 (Cth).

  11. Mr Dixon deposed to the matters which grounded his view that an extension of the convening period of the second meeting of creditors of the Companies was required, which included the following:[8]

    The prospect of an immediate winding up of the Companies in circumstances if the convening periods of the second meetings of creditors of the Companies are not extended, which in my preliminary view, is not in the interests of the creditors of the Companies where a campaign for sale of the Business as a going concern is underway[.]

    [8] Affidavit of SR Dixon affirmed on 8 August 2025, par 41.3.

  12. At par 42 of his affidavit Mr Dixon also deposed that an extension of the convening period for 59 days would be in the interests of the Companies and the Companies' creditors to:

    42.1allow me to stabilise the operations of the Companies, in particular ensuring that the Business remains operational;

    42.2 allow me to finalise my investigations into the business, property, affairs and financial position of the Companies;

    42.3 allow me and prospective sale advisers to conduct an orderly realisation process of the Business; and

    42.4 maximise the chance of the Companies, or as much as possible of the Business, to continue in existence as well as the possibility of a greater return to the majority of the creditors of the Companies than would result from an immediate winding up.

  13. Mr Dixon deposed to the steps that he had taken to notify creditors of his intention to seek an extension of the convening period. In this regard, he deposed that:[9]

    (a)he had noted his intention to make an application to the court for an extension to the convening period at the first meeting of creditors of each of the Companies;

    (b)he had sought any objections from creditors to an extension of the convening period for a period of at least 60 days at the first meeting of the creditors of each of the Companies, and had received no objections from creditors;

    (c)he had informed the major secured creditor about his intention to make an application for an extension to the convening period on a further separate occasion to the first meetings of creditors of the Companies;

    (d)he had not received any response from any creditors of the Companies in relation to the notification given and this application; and

    (e)he was not aware of any reason that would cause any creditor or interested person to be unfairly prejudiced by the extension of the convening period.

    [9] Affidavit of SR Dixon affirmed on 8 August 2025, pars 43, 45, 46.

  14. Finally, if the application were granted, Mr Dixon deposed that it was his intention to seek to hold the second meeting of creditors of each of the Companies before to the extended deadline if the sale process were to conclude earlier than expected.[10]

    [10] Affidavit of SR Dixon affirmed on 8 August 2025, par 48.

  15. Mr Dixon annexed 15 documents to his affidavit which included Australian Securities and Investments Commission (ASIC) current and historical company extracts that had been obtained for each of the Companies on 7 August 2025; the ASIC Form 505 notices of appointment dated 11 July 2025, which record the appointment of Mr Dixon as administrator to each of the Companies; the lease of Doodlakine Quarry between Mineral Crushing Services (WA) and the Shire of Kellerberrin; a bundle of signed rental agreements between Mineral Crushing Services Holdings and InFront Australian Business Solutions; a bundle of financial documents as to the affairs of Mineral Crushing Services (WA), comprising balance sheets and statements of profit and loss relating to the period of the financial year ended 30 June 2024 to the date of Mr Dixon's appointment; the combined notice of appointment and notice of first meeting of creditors of Mineral Crushing Services (WA) published on 11 July 2025; the combined notice of appointment and notice of first meeting of creditors of Mineral Crushing Services Holdings published on 11 July 2025; circulars to creditors of Mineral Crushing Services (WA) and Mineral Crushing Services Holdings dated 15 July 2025; the minutes from the first meeting of creditors of each of the Companies, which meetings were held on 23 July 2025 and which minutes were made on 6 August 2025; and a copy of the advertisement placed in the Australian Financial Review on 19 July 2025, by which expressions of interest in the business and assets of the Companies were sought.

Mr Dixon's 'confidential' affidavit

  1. A second confidential affidavit affirmed by Mr Dixon on 8 August 2025, to which Mr Dixon annexed documents marked SRD‑16 to SRD‑18, was also read. At the hearing on 11 August 2025 counsel moved for an order to restrict access to that affidavit, and the documents annexed to it.

  2. An order restricting access was made on 11 August 2025, and the reasons for making that order are recorded below. These reasons are expressed so as to not disclose the substance of the confidential information which was before the court and which was weighed in the balance in the determination of this application.

Mr Dixon's supplementary affidavit

  1. In support of the application, the third 'supplementary' affidavit of Mr Dixon was also read. Mr Dixon's supplementary affidavit was affirmed on 13 August 2025, to which he attached two documents marked SRD‑15 and SRD‑8 (the later annexed in substitution for the document so marked in Mr Dixon's first 'open' affidavit).

  2. In his supplementary affidavit Mr Dixon described the circumstances which contributed to the application having been filed on the last day of the convening period despite having had informed creditors at the first meetings that he had determined that the convening periods should be extended for at least 60 days.[11] He also deposed to the timing of the engagement of Lavan.

    [11] Affidavit of SR Dixon affirmed on 8 August 2025, par 43.1, page 500, page 504 (second last bullet point).

  3. Mr Dixon annexed to his supplementary affidavit a copy of a ground survey report prepared by Scope Survey Management (which survey was undertaken on 1 August 2025). He also attached a bundle of financial documents as to the affairs of Mineral Crushing Services Holdings, comprising balance sheets and statements of profit and loss relating to the period of the financial year ended 30 June 2024 to the date of Mr Dixon's appointment.

Disposition

The statutory requirements

  1. Section 439A of the Corporations Act requires the administrator of a company under administration to convene a meeting of the company's creditors within the convening period as fixed by subsection (5) or as extended under subsection (6). The meeting must be held within five business days before, or within five business days after, the end of the convening period by operation of s 439A(2).

  2. Pursuant to r 75-225 of the Insolvency Practice Rules (Corporations) 2016 (Cth), the notice of the second meeting of creditors must be accompanied by first, a report to creditors of the company in relation to the business, property, affairs and financial circumstances of the company, and secondly a statement expressing the administrator's opinion on, among other things, whether it would be in the interests of creditors for (a) any proposal for a deed of company arrangement made by interested parties to be executed by the company, (b) for the administration to end or (c) for the company to be wound up.

  3. Section 439A(6) of the Corporations Act provides that the court may extend the convening period on an application made during or after the period referred to in s 439A subsection 5(a) or (b), as the case requires. If an application is made under subsection (6) after the period referred to in subsection 5(a) or (b), as the case may be, the court may only extend the convening period if the court is satisfied that it would be in the best interests of the creditors if the convening period were extended in accordance with the application.[12] Also, if made after the period referred to in subsection 5(a) or (b), as the case may be, then in making an order about the costs of the application, the court must have regard to the matters prescribed in subsection 8(a) to (c).[13]

Overview of the orders sought

[12] Corporations Act s 439A(7).

[13] Corporations Act s 439A(8).

  1. Counsel moved for orders in terms of a minute of proposed orders filed on 11 August 2025.

  2. As to the substantive relief sought, first, Mr Dixon applied pursuant to s 439A(6) of the Corporations Act for an order extending by a period of 59 days the convening period as defined in s 439A(5)(b) as it applies to Mineral Crushing Services (WA) and Mineral Crushing Services Holdings. In the alternative, that order was sought pursuant to s 447A of the Corporations Act, which provides that the court may make such orders as it thinks appropriate as to how pt 5.3A is to operate in relation to a particular company.

  3. Secondly, he sought an order pursuant to s 447A(1) of the Corporations Act that the first order (descried above) shall have effect from the day after the end of the convening period on 8 August 2025.

  4. Thirdly, Mr Dixon sought what is commonly referred to as a Daisytek order, that is, an order pursuant to s 447A(1) of the Corporations Act that pt 5.3A of the Corporations Act is to operate such that the second meeting of creditors of each of the Companies may be held at any time during or within five business days after the end of the convening period (as extended), notwithstanding the provisions of s 439A(2) of the Corporations Act.

  1. Fourthly, an order which would require Mr Dixon to take steps to cause the orders of the court to be served upon creditors of the Companies and ASIC within one business day.

  2. Fifthly, as to costs, Mr Dixon moved for an order that the costs of the application be treated as costs in the voluntary administration of the Companies.

  3. Sixthly, it was proposed that the orders expressly provide that any person who can demonstrate a sufficient interest to vary or discharge the first five orders, including any creditor or person claiming to be a creditor of the Companies, has liberty to apply to the court on two business days' written notice to the plaintiffs.

  4. Finally, the orders promoted provided for the plaintiffs to have liberty to apply.

Extending the convening period

Standing

  1. I proceeded on the basis that Mr Dixon had standing to bring the application to extend the convening period under s 439A(6), and to seek that relief under s 447A.

  2. The issue of whether an administrator has standing to apply for such orders by reference to the operation of s 435C(3)(b) (that is, where the company is no longer in administration) was considered by Black J in Re Byron Group Holdings Pty Ltd (administrators appointed) [2016] NSWSC 1947, and by Ward CJ in Re Parker Logan Property Pty Ltd [2021] NSWSC 792 at [28] and [29].

  3. In Re Byron Group Holdings Pty Ltd (administrators appointed), the application to extend the convening period was made after the convening period had ended. In that context, counsel for the applicant drew to the court's attention an issue as to the form of orders, which issue was described and addressed at [9] and [10] of his Honour's reasons, which are reproduced below:

    [9]One issue of the form of orders arises, to which Mr Oakes, who appears for the Applicants, has drawn attention. Section 435C(3) of the Act relevantly provides that the administration of a company may end if the convening period ends, without the relevant second meeting having been convened in accordance with s 439A of the Act, and without an application having been made to the Court to extend the time under s 439A(6) of the Act. That was plainly the case here since the application was not made until today, when the convening period would end last Friday. In Re FEA Plantations Ltd (admins apptd) [2010] FCA 468, to which Mr Oakes refers, Dodds-Streeton J contemplated that, if the convening period expired without an extension first being made, the administration would end under s 435C(3)(b) of the Corporations Act. Her Honour was not there specifically directing her attention to the position in respect of an application made after the end of the convening period. I dealt with an application made after the end of the convening period in Re Tendiris Pty Ltd (admin apptd) (recs and mgrs apptd) [2013] NSWSC 739, where my attention was not, so far as I can recall, specifically drawn to s 435C(3)(b) of the Act or to her Honour's decision in Re FEA Plantations Ltd (admins apptd) above. I proceeded on the basis that an order made under s 439A(6) of the Act, after the convening period, would operate in a self-contained way to extend the convening period. That, of course, would be a logical and desirable result, but it seems to me that it could be argued that an order under s 439A(6), although it extends the convening period, is not effective without more, in circumstances that s 435C(3) had come into effect. That argument might be regarded, by some, as unduly technical and, if it were advanced, it would almost inevitably be met by a further order, nunc pro tunc, under s 447A of the Corporations Act to avert that undesirable result.

    [10]In these circumstances, it seems to me that it is desirable to make a further order under s 447A of the Corporations Act, at this point, to avert any risk that a difficulty may arise under s 435C(3) of the Act, and such an order under s 447A of the Act might then need to be made at a future point. That possibility was contemplated by the Applicants, in a form of order that they propose, and I propose to make that order, against the contingency that it is necessary to address the issues arising from the operation of ss 439A(6)–(8) and s 435C(3) of the Act in these circumstances. For these reasons, I will make orders in the form of the orders that have been provided. I will make a further order 6 that these orders be entered forthwith.

  4. In Re Byron Group Holdings Pty Ltd (administrators appointed), the application under s 439A(6) and s 447A of the Corporations Act to extend the convening period for the second meeting of creditors in respect of the administration of the relevant companies was made by a process filed on 14 November 2016, in circumstances where the convening period had expired on 11 November 2016.

  5. In contrast, Mr Dixon's application to the court was filed shortly before the convening period had expired on 8 August 2025, and the court had not finally determined the application made or otherwise disposed of it otherwise than by the court extending the convening period. In the circumstances of this case, s 435C(3) had not come into effect by reference to the events described in subsections (3)(b), (3)(c), or otherwise, and therefore no issue as to standing arose.

Consideration

  1. In determining the application, I 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.[14] I also had regard to and applied the following principles:[15]

    (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.

    [14] 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, [124] - [125] (Buss P), referring to Re Silvia; Austcorp Group Ltd [2009] FCA 636 [18] (Lindgren J); and Re Riviera Group Pty Ltd (Admins Apptd) (Recs and Mgs Apptd) [2009] NSWSC 585; (2009) 72 ACSR 352, [9] ‑ [15], [17] ‑ [18] (Austin J).

    [15] Re Reid Group Pty Ltd (Administrators Appointed): Ex parte Kirman & Bauer [4(1) - (5)] (Banks‑Smith J), 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).

  2. The alternative basis upon which the extension was sought, and other orders were pressed, was s 447A of the Corporations Act. Section 447A confers wide discretionary powers on the Court, including to do what it thinks just in all of the circumstances, having regard to the rights of those affected by the administration, and including making orders that would alter what would otherwise be the operation of pt 5.3A of the Corporations Act.[16]

    [16] Re Foodora Australia Pty Ltd (Administrators Appointed) [2018] NSWSC 1426 [7]. See Australasian Memory Pty Ltd v Brien [2000] HCA 30; (2000) 200 CLR 270.

  3. The overriding requirement for an order under s 447A is that it be designed to achieve the objective of pt 5.3A, as expressed in s 435A of the Corporations Act. Relevantly, I note that the power to extend the convening period as provided in s 439A(6) of the Corporations Act does not exclude the operation of s 447A(1) to extend the convening period, even if otherwise s 439A(6) did not apply.[17]

    [17] Re Convergency Services Pty Ltd [2007] VSC 403[16] (Robson J); Re Parker Logan Property Pty Ltd [27] (Ward J).

  4. Taking into account all of the evidence read and the submissions made, the convening period should be extended. In the balance the following matters were weighed.

  5. First, the reasons which ground this application for extension fall within recognised categories for relief.[18] The requested extension will enable the administrator's pursuit of outstanding tasks, most importantly the sale process.

    [18] Re Riviera Group Pty Ltd (Admins Apptd) (Recs and Mgs Apptd) [13] (Austin J).

  6. Secondly, I had regard and gave weight to the considered judgment of an experienced administrator. I give particular weight to the opinion expressed by Mr Dixon (recorded in his first 'open' affidavit) that the prospect of an immediate winding up of the Companies was, in his preliminary view, not in the interests of the creditors of the Companies where a campaign for sale of the Doodlakine Quarry business as a going concern was underway.[19]

    [19] Affidavit of SR Dixon affirmed on 8 August 2025, par 41.3.

  7. On the evidence of Mr Dixon, I was satisfied that the requested extension of time was intended to facilitate sensible and constructive actions directed to maximising the return for creditors.

  8. Thirdly, I considered the possible impact on third parties.

  9. I considered the impact of the Shire of Kellerberrin (as lessor).

  10. Counsel sought to emphasise that the lease of Doodlakine Quarry recorded that the Shire of Kellerberrin (as lessor) had agreed that Mineral Crushing Services (WA) (as lessee) would not be in default under the lease if, at any time, an administrator, as defined by the Corporations Act, were appointed in respect of the lessee except where the administration were to come to an end by reason of the lessee's creditors resolving that the lessee should be wound up.

  11. It was also emphasised by counsel that Mr Dixon had spent significant time prior to the end of the convening period liaising with the Shire of Kellerberrin regarding the assignment of the lease of Doodlakine Quarry for the purpose of a potential sale of the Doodlakine Quarry business as a going concern.[20]

    [20] Plaintiffs' outline of submissions filed on 11 August 2025, par 13.2; affidavit of SR Dixon affirmed on 8 August 2025, par 30.19.

  12. Counsel was without instructions as to whether the Shire was also a creditor. Given the evidence before the court, I proceeded on the basis that there was no rights of the Shire that would be or remain subject to a statutory restriction pursuant to s 440B of the Corporations Act. Further, there was no evidence of detriment to the Shire by reason of the administration continuing.

  13. I also considered the position of InFront Australian Business Solutions, the major secured creditor of the Companies.

  14. I understood that InFront Australian Business Solutions was put on notice of this application by Mr Dixon, had not raised any objection to the application, and had expressed support the sale of the Doodlakine Quarry business as a going concern.[21] I also weighed in the balance Mr Dixon's evidence that InFront Australian Business Solutions (which holds an ALLPAAP security interest registered on the Personal Property and Securities Register over the assets of both of the Companies) would not support any attempt to realise the business of Mineral Crushing Services (WA) separately from the assets and affairs of Mineral Crushing Services Holdings, and that upon the liquidation of the Companies there would be a real possibility that the major secured creditor would appoint a receiver over the assets of the Companies, which may reduce the role of any liquidator of the Companies.[22]

    [21] Affidavit of SR Dixon affirmed on 8 August 2025, par 45, 41.9.1.

    [22] Affidavit of SR Dixon affirmed on 8 August 2025, par 41.9.

  15. Thirdly, the application was foreshadowed by Mr Dixon as early as the first meeting of the creditors of each of the Companies, and that no objection was then or subsequently raised.[23]

    [23] Affidavit of SR Dixon affirmed on 8 August 2025, par 43.1, page 500, page 504 (second last bullet point).

  16. Fourthly, I noted that although Mr Dixon had determined by the first meetings of the creditors that the convening period for the meetings of creditors should be extended for at least 60 days,[24] he did not explain in his first affidavit why the application was made after 4.00 pm on 8 August 2025 (the day the convening period applicable to the Companies was to end).

    [24] Affidavit of SR Dixon affirmed on 8 August 2025, page 500, page 504 (second last bullet point).

  17. The lacuna was addressed by Mr Dixon in his supplementary affidavit. Mr Dixon explained that he thought it prudent before seeking an extension to obtain the agreement of the major secured creditor to his proposed course of action; to commence discussions with the Shire of Kellerberrin as to the potential for the assignment of Doodlakine Quarry lease; to arrange collection of surplus assets (some of which were leased assets); and to allow sufficient time for a ground survey to be conducted so as to discern the volume of road aggregate stockpiles held (required to justify revenue forecasts for the extended convening period and to advertise to prospective buyers).[25]

    [25] Affidavit of SR Dixon affirmed on 13 August 2025, pars 7 - 8.

  18. Mr Dixon also deposed to the dates by which the various tasks described above were completed, and to the timing of the engagement of Lavan.

  19. While Mr Dixon acknowledged that steps could and should have been taken to avoid the application being filed on or near the last day of the convening period,[26] from the evidence read I was satisfied that the need for an extension did not come about as a result of the administrator sitting on his hands.

    [26] Affidavit of SR Dixon affirmed on 13 August 2025, par 14.

  20. Fifthly, I take comfort from the proposed order which contemplates that Mr Dixon will take steps to cause notice of the orders to be given within one business day to creditors, including persons claiming to be creditors, of the Companies, and to ASIC. It is contemplated that any person who can demonstrate a sufficient interest to vary or discharge the court's orders, including any creditor or person claiming to be a creditor of the Companies, will have liberty to apply to the court on two business days' written notice to the plaintiffs.

  21. On balance, I was satisfied that the evidentiary case for extension was present; that there was no evidence of material prejudice to those affected by the moratorium imposed by the administration; and that the administrator's estimate of time has a reasonable basis.[27] Taking into account all of the evidence before me, and the submissions made, I was satisfied that the convening period should be extended. I considered that an extension in the circumstances deposed to would reach an appropriate balance between an expectation that the administration would be relatively speedy, that the administrator would 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.

    [27] Re Riviera Group Pty Ltd (Admins Apptd) (Recs and Mgs Apptd [14] (Austin J).

  22. The second substantive order sought on behalf of Mr Dixon was an order pursuant to s 447A(1) of the Corporations Act that the first order (described above) shall have effect from the day after the end of the convening period on 8 August 2025.

  23. The need for such an order was not obvious in circumstances where s 435C(3) of the Corporations Act had not come into effect (by reference to the events described in subsections (3)(b), (3)(c), or otherwise). While I too proceeded on the basis that an order made under s 439A(6) of the Corporations Act would operate in a self‑contained way to extend the convening period,[28] I was prepared to make the order sought against the contingency that such additional order was required.

'Daisytek' order

[28] Re Byron Group Holdings Pty Ltd (administrators appointed) [9].

  1. Mr Dixon also sought a Daisytek order under s 447A of the Corporations Act, being an order to the effect that the second creditors' meetings may be held at any time within the extended convening period or the period of five business days thereafter, notwithstanding the effect of s 439A(2) of the Corporations Act.[29] (The effect of s 439A(2) of the Corporations Act is that the second creditors meeting must be held within five business days before, or within five business days after, the end of the convening period.)

    [29] Re Daisytek Pty Ltd (administrators appointed) [2003] FCA 575; (2003) 45 ACSR 446.

  2. I was prepared to make such an order (as had been proposed in the originating process and the minute of proposed orders), and in doing so I applied the principles to be applied when exercising the power afforded by s 447A (summarised above).

  3. Absent such an order, Mr Dixon would have been obliged to hold the second meetings of creditors within the period prescribed by s 439A(2) of the Corporations Act by reference to the end of the extended convening period. The meetings could not be held prior to that period even if Mr Dixon were ready to proceed, and I consider it to be convenient and desirable that he not be required to wait.

  4. At par 48 of his first 'open' affidavit affirmed on 8 August 2025 Mr Dixon deposed that in circumstances where the sale process concludes earlier than anticipated, he would seek to hold the second meeting of creditors of each of the Companies before any extended deadline. The fourth order sought by the originating process would further the same.

  5. I accepted that s 447A(1) gave the court sufficient power to make a Daisytek order as promoted on behalf of the administrator. It had a clear nexus with how pt 5.3A was to operate with respect to the companies in administration. Further, as a matter of discretion, I considered it appropriate that the administrator be enabled to convene the meetings to be held on a date prior to the extended convening period if this was thought to be desirable, rather than being compelled to wait, which I considered to be in the interests of the creditors.

Confidentiality

  1. I was satisfied that the second 'confidential' affidavit of Mr Dixon contains confidential information, and the application for a confidentiality order was appropriately made. In all of the circumstances, I was satisfied that it was appropriate to restrict access to the confidential affidavit of Mr Dixon pursuant to the Rules of the Supreme Court 1971 (WA) O 67B r 5(3)(b) until further order. That order was made on 11 August 2025.

Costs

  1. Mr Dixon sought an order that the costs of this application be treated as costs in the voluntary administration of the Companies. It was appropriate that the costs of and incidental to the application be costs and expenses in the external administration of Companies, and I made an order that such costs be so treated.

Conclusion and orders

  1. For these reasons, I considered it to be in the best interests of the creditors of the Companies if the convening period was extended in accordance with the application. The orders made on 11 August 2025 and 14 August 2025 (the first being the restriction order in relation to the confidential affidavit of Mr Dixon) are reproduced at sch A to these reasons.

  1. Given the express exclusion of the appointment of an administrator as an event of default by cl 23.1(2) of the lease of Doodlakine Quarry, I considered that a copy of the orders should also be given to the Shire of Kellerberrin, and the terms of the plaintiffs' proposed order was amended to reflect the same.

Sch A - orders made on 11 August 2025 and 14 August 2025

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CR

Associate to the Hon Justice Strk

14 AUGUST 2025


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Cases Cited

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Statutory Material Cited

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In the matter of Byron Group Holdings Pty Ltd (administrators appointed) and others [2016] NSWSC 1947
In the matter of Parker Logan Property Pty Ltd [2021] NSWSC 792
Re FEA Plantations Ltd [2010] FCA 468