Re Yeeda Pastoral Company Pty Ltd (Administrators Appointed) (ACN 094 819 717); [No 2]
[2024] WASC 221
•19 JUNE 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE YEEDA PASTORAL COMPANY PTY LTD (ADMINISTRATORS APPOINTED) (ACN 094 819 717); EX PARTE RICHARD SCOTT TUCKER as joint and several administrator of YEEDA PASTORAL COMPANY PTY LTD (ADMINISTRATORS APPOINTED) (ACN 094 819 717) [No 2] [2024] WASC 221
CORAM: HILL J
HEARD: 10 JUNE 2024
DELIVERED : 10 JUNE 2024
PUBLISHED : 19 JUNE 2024
FILE NO/S: COR 49 of 2024
MATTER: IN THE MATTER OF YEEDA PASTORAL COMPANY PTY LTD (ADMINISTRATORS APPOINTED) (ACN 094 819 717)
EX PARTE
RICHARD SCOTT TUCKER as joint and several administrator of YEEDA PASTORAL COMPANY PTY LTD (ADMINISTRATORS APPOINTED) (ACN 094 819 717)
First named First Plaintiff
ANTHONY JAY EDWARD MISKIEWICZ as joint and several administrator of YEEDA PASTORAL COMPANY PTY LTD (ADMINISTRATORS APPOINTED) (ACN 094 819 717)
Second named First Plaintiff
DAVID CHRISTOPHER OSBORNE as joint and several administrator of YEEDA PASTORAL COMPANY PTY LTD (ADMINISTRATORS APPOINTED) (ACN 094 819 717)
Third named First Plaintiff
RICHARD SCOTT TUCKER as joint and several administrator of AUSTRALIAN RANGELAND MEAT PTY LTD (ADMINISTRATORS APPOINTED) (ACN 156 047 111)
First named Second Plaintiff
ANTHONY JAY EDWARD MISKIEWICZ as joint and several administrator of AUSTRALIAN RANGELAND MEAT PTY LTD (ADMINISTRATORS APPOINTED) (ACN 156 047 111)
Second named Second Plaintiff
DAVID CHRISTOPHER OSBORNE as joint and several administrator of AUSTRALIAN RANGELAND MEAT PTY LTD (ADMINISTRATORS APPOINTED) (ACN 156 047 111)
Third named Second Plaintiff
RICHARD SCOTT TUCKER as joint and several administrator of KIMBERLEY PROPERTIES PTY LTD (ADMINISTRATORS APPOINTED) (ACN 658 990 160)
First named Third Plaintiff
ANTHONY JAY EDWARD MISKIEWICZ as joint and several administrator of KIMBERLEY PROPERTIES PTY LTD (ADMINISTRATORS APPOINTED) (ACN 658 990 160)
Second named Third Plaintiff
DAVID CHRISTOPHER OSBORNE as joint and several administrator of KIMBERLEY PROPERTIES PTY LTD (ADMINISTRATORS APPOINTED) (ACN 658 990 160)
Third named Third Plaintiff
RICHARD SCOTT TUCKER as joint and several administrator of KIMBERLEY MEAT COMPANY PTY LTD (ADMINISTRATORS APPOINTED) (ACN 159 933 392)
First named Fourth Plaintiff
ANTHONY JAY EDWARD MISKIEWICZ as joint and several administrator of KIMBERLEY MEAT COMPANY PTY LTD (ADMINISTRATORS APPOINTED) (ACN 159 933 392)
Second named Fourth Plaintiff
DAVID CHRISTOPHER OSBORNE as joint and several administrator of KIMBERLEY MEAT COMPANY PTY LTD (ADMINISTRATORS APPOINTED) (ACN 159 933 392)
Third named Fourth Plaintiff
RICHARD SCOTT TUCKER as joint and several administrator of YEEDA KIMBERLEY TOURS PTY LTD (ADMINISTRATORS APPOINTED) (ACN 126 760 281)
First named Fifth Plaintiff
ANTHONY JAY EDWARD MISKIEWICZ as joint and several administrator of YEEDA KIMBERLEY TOURS PTY LTD (ADMINISTRATORS APPOINTED) (ACN 126 760 281)
Second named Fifth Plaintiff
DAVID CHRISTOPHER OSBORNE as joint and several administrator of YEEDA KIMBERLEY TOURS PTY LTD (ADMINISTRATORS APPOINTED) (ACN 126 760 281)
Third named Fifth Plaintiff
RICHARD SCOTT TUCKER as joint and several administrator of YEEDA FODDER COMPANY PTY LTD (ADMINISTRATORS APPOINTED) (ACN 660 216 777)
First named Sixth Plaintiff
ANTHONY JAY EDWARD MISKIEWICZ as joint and several administrator of YEEDA FODDER COMPANY PTY LTD (ADMINISTRATORS APPOINTED) (ACN 660 216 777)
Second named Sixth Plaintiff
DAVID CHRISTOPHER OSBORNE as joint and several administrator of YEEDA FODDER COMPANY PTY LTD (ADMINISTRATORS APPOINTED) (ACN 660 216 777)
Third named Sixth Plaintiff
Catchwords:
Corporations - Insolvency - External administration - Proposed second funding deed - Where additional funding required for muster and associated practices - Application by administrators to be relieved from personal future liabilities in respect of debts and liabilities arising out of second funding deed - Turns on own facts
Legislation:
Corporations Act 2001 (Cth) pt 5.3A, s 435A
Result:
Application granted
Category: B
Representation:
Counsel:
| First named First Plaintiff | : | L D Ayres |
| Second named First Plaintiff | : | L D Ayres |
| Third named First Plaintiff | : | L D Ayres |
| First named Second Plaintiff | : | L D Ayres |
| Second named Second Plaintiff | : | L D Ayres |
| Third named Second Plaintiff | : | L D Ayres |
| First named Third Plaintiff | : | L D Ayres |
| Second named Third Plaintiff | : | L D Ayres |
| Third named Third Plaintiff | : | L D Ayres |
| First named Fourth Plaintiff | : | L D Ayres |
| Second named Fourth Plaintiff | : | L D Ayres |
| Third named Fourth Plaintiff | : | L D Ayres |
| First named Fifth Plaintiff | : | L D Ayres |
| Second named Fifth Plaintiff | : | L D Ayres |
| Third named Fifth Plaintiff | : | L D Ayres |
| First named Sixth Plaintiff | : | L D Ayres |
| Second named Sixth Plaintiff | : | L D Ayres |
| Third named Sixth Plaintiff | : | L D Ayres |
Solicitors:
| First named First Plaintiff | : | Lavan |
| Second named First Plaintiff | : | Lavan |
| Third named First Plaintiff | : | Lavan |
| First named Second Plaintiff | : | Lavan |
| Second named Second Plaintiff | : | Lavan |
| Third named Second Plaintiff | : | Lavan |
| First named Third Plaintiff | : | Lavan |
| Second named Third Plaintiff | : | Lavan |
| Third named Third Plaintiff | : | Lavan |
| First named Fourth Plaintiff | : | Lavan |
| Second named Fourth Plaintiff | : | Lavan |
| Third named Fourth Plaintiff | : | Lavan |
| First named Fifth Plaintiff | : | Lavan |
| Second named Fifth Plaintiff | : | Lavan |
| Third named Fifth Plaintiff | : | Lavan |
| First named Sixth Plaintiff | : | Lavan |
| Second named Sixth Plaintiff | : | Lavan |
| Third named Sixth Plaintiff | : | Lavan |
Case(s) referred to in decision(s):
Re Yeeda Pastoral Company Pty Ltd (Administrators Appointed) [2024] WASC 120
HILL J:
(This judgment was delivered extemporaneously on 10 June 2024 and has been edited from the transcript.)
By interlocutory process filed 7 June 2024, the plaintiffs seek a series of further orders in relation to Yeeda Pastoral Company Pty Ltd (Yeeda) and various companies within the group.
The plaintiffs were appointed as joint and several administrators of Yeeda on 29 February 2024, having been appointed as joint and several administrators to Kimberley Meat Company Pty Ltd (KMC) two days previously.
Specifically in relation to the interlocutory process, the plaintiffs seek to be relieved from personal future liabilities in relation to a second funding deed (Second Funding Deed).
In support of the application, the plaintiffs relied on the two affidavits of David Christopher Osborne filed 7 June 2024 (one open and one confidential), as well as a confidential affidavit of Leigh David Ayres filed 10 June 2024. I have also had the benefit of a written outline of supplementary submissions.
Factual background
Much of the factual background to this matter was set out in my reasons for decision on the first application by the plaintiffs on 27 March 2024.[1]
[1] Re Yeeda Pastoral Company Pty Ltd (Administrators Appointed) [2024] WASC 120.
Since the date of that decision, the plaintiffs have continued to operate the Yeeda group, and commenced the sale process which was anticipated in the first application. Stage 1 of that process has been completed, and shortlisted bidders are due to submit binding bids on 19 June 2024.
The evidence of Mr Osborne is that additional funding is required to enable a muster to be conducted, and for associated practices to be undertaken, as well as for the purchase of supplementary feed and critical capital works to be undertaken. His evidence is that these are required to enable the plaintiffs to continue to prepare and preserve the Yeeda group for sale, as well as to manage the welfare of the cattle.
Following discussions with the Yeeda group's secured lender and ADM Capital Investments Pte Ltd (ADM) (who have provided the initial funding for the administration), the plaintiffs propose entering into a Second Funding Deed, this time with its secured lender, and seek orders relieving them of personal liability in respect of debts or liabilities arising out of the Second Funding Deed.
Consistent with the requirements of the initial funding agreement, ADM has consented to the entry into the Second Funding Deed and acknowledged that any funds advanced under the deed is senior debt and has the priority given to it under an intercreditor deed.
Application to be relieved from personal future liabilities
I set out in my initial reasons for decision the legal principles that govern this application, and I incorporate those matters into these reasons without repeating them.
The key terms of the Second Funding Deed can be summarised as follows:
(a)the plaintiffs propose entering into the Second Funding Deed in their capacity as joint and several administrators of Yeeda, KMC, Australian Rangeland Meat Pty Ltd and Yeeda Kimberley Tours Pty Ltd. These companies are also parties to the Second Funding Deed;
(b)the Commonwealth Bank of Australia (Bank) will provide further funding to the plaintiffs, as set out in the Second Funding Deed, for the purpose of conducting the muster, set out in a stock and station plan that has been prepared by the plaintiffs;
(c)the further funding is repayable on the earlier of 30 September 2024; completion of the sale of assets, subject to the existing security; the date that the administration of Yeeda or KMC ends; any extension of the convening period to which the Bank does not consent; and the occurrence of an event of default which is not remedied, or termination of the Second Funding Deed;
(d)the interest rate payable on the amount to be advanced is the Bank's overdraft index rate (which is currently 11.93% per annum); and
(e)each of the companies who are parties to the Second Funding Deed guarantees the performance of the plaintiffs' obligations under that agreement.
The Second Funding Deed is subject to a condition subsequent of the approval of the court being obtained, as sought in this interlocutory process.
For the following reasons, on the evidence before me, I am satisfied that it is appropriate to make the orders sought, subject to one amendment.
First, I accept that the purpose of the funding under the Second Funding Deed is to fund a muster, which is necessary as part of the ongoing care and maintenance of the assets of the Yeeda group, and in particular, its substantial cattle herd. Without this occurring, I accept there is a risk that the value of the cattle, which are assets of the group, will be diminished.
Second, the proposed Second Funding Deed is with the secured creditor, who is able to determine for itself, the extent to which its interests are affected by the proposal.
Third the proposed orders are, in my view, consistent with the interests of unsecured creditors and the objects of pt 5.3A of the Corporations Act 2001 (Cth) (Act), as set out in s 435A of the Act.
Fourth, notice has been given to ADM of the Second Funding Deed and the intention to seek these orders. I accept that ADM is the primary party affected by these orders and has consented to the entry into the Second Funding Deed.
However, in order to ensure that the interests of all creditors are protected, I consider that an amendment to the orders should be made to provide for service of the orders, and an order permitting creditors who are affected by the orders to apply to vary or discharge the orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JN
Associate to the Honourable Justice Hill
19 JUNE 2024
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