Richard Scott Tucker as joint and several administrator of Allegiance Mining Pty Ltd (Receivers and Managers Appointed) (Subject to Deed of Company Arrangement) (ACN 059 676 783) v Su - [2022] WASC 178

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RICHARD SCOTT TUCKER as joint and several administrator of ALLEGIANCE MINING PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 059 676 783) -v- SU [2022] WASC 178
CORAM:   MASTER SANDERSON
HEARD:   19 MAY 2022
DELIVERED          :   19 MAY 2022
PUBLISHED           :   20 MAY 2022
FILE NO/S:   COR 57 of 2022
BETWEEN:   RICHARD SCOTT TUCKER as joint and several administrator of ALLEGIANCE MINING PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 059 676 783)
JOHN ALLAN BUMBAK as joint and several administrator of ALLEGIANCE MINING PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 059 676 783)
Plaintiffs
AND
JUNYU SU
Other Party
MALLEE RESOURCES LIMITED
First Interested Party
HARTREE METALS LLC
Second Interested Party

Catchwords:

Corporation Act - Application by party to be joined to a s 444GA application as 'any other interested person' - Turns on own facts

Legislation:

Corporations Act 2001 (Cth)
Supreme Court (Corporations) Rules 2004 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiffs	:	P Edgar & J Abberton
Other Party	:	MD Cuerden SC & PA Walker
First Interested Party	:	J Giles SC
Second Interested Party	:	S Maiden QC & J Rudd

Solicitors:

Plaintiffs	:	Lavan
Other Party	:	Hall & Wilcox (Perth)
First Interested Party	:	Steinepreis Paganin
Second Interested Party	:	Clayton Utz

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

Allatech Pty Ltd v Construction Management Group Pty Ltd [2002] NSWSC 293
BE Australia WD Pty Ltd v Sutton [2011] NSWCA 414
Minerology Pty Ltd v Sino Iron Pty Ltd [No 2] [2021] WASCA 105
Public Trustee (Qld) v Octaviar Ltd [2009] QSC 202

MASTER SANDERSON:

On 28 March 2022, the plaintiffs filed an originating process seeking relevantly the following orders:
1.Pursuant to section 444GA of the Corporations Act 2001 (Cth) (Corporations Act) for the purpose of satisfying the condition precedent in clause 5.1(a) of the deed of company arrangements executed by Allegiance Mining Pty Ltd (Receivers and Managers Appointed) (Subject to Deed of Company Arrangement) (ACN 059 676 783) (Allegiance) on 7 March 2022 (Allegiance DOCA), an order that the Plaintiffs, Mr Richard Scott Tucker and Mr John Allan Bumbak, in their capacities as deed administrators of Allegiance (Deed Administrators) have leave to transfer all of the existing shares in Allegiance (Shares) from the members (as defined in the Corporations Act) of Allegiance (Members) to Mallee Resources Limited (ACN 124 943 728) (Mallee) or its nominee.
2 Pursuant to section 447A(1) of the Corporations Act and section 90-15(1) of the Schedule 2 of the Corporations Act, any of the Deed Administrators may, jointly or severally, in their capacities as Deed Administrators of Allegiance:
2.1 execute on behalf of the Members share transfer forms and any other documents ancillary or incidental to effecting the transfer of Shares referred to in Order 1; and
2.2 enter or procure the entry of the name of Mallee or its nominee into the share register of Allegiance in respect of all Shares transferred to Mallee or its nominee in accordance with Order 1
The application was supported by two affidavits of Richard Scott Tucker both sworn 28 March 2022. (The reason for two separate affidavits was that one was confidential as it contained commercially sensitive documents).
On 31 March 2022, Acting Master McDonald made certain programming orders which, among other things, allowed for persons interested in the application to apply to intervene. Any intervention was to be notified by 4.00 pm on 28 April 2022. On 27 April 2022, Mr Junyu Su gave notice he wished to intervene.
At a directions hearing on 3 May 2022, I made the following orders:
1. The time for Mr Su to apply to be joined as a defendant to this proceeding be extended to 4pm on 9 May 2022.
2. Mr Su shall file and serve any affidavit that sets out the grounds of opposition by 4pm on 9 May 2022.
3. The matter be listed for a special appointment on 9 and 10 June 2022 at 10:30am.
4. The costs of today be reserved.
On 9 May 2022, Mr Su filed an interlocutory process seeking to be joined as a defendant to the proceedings or, in the alternative, seeking to be heard without becoming a party to the proceeding under r 2.13(1) of the Supreme Court (Corporations) Rules 2004 (WA). This application was supported by an affidavit of Mr Su affirmed 9 May 2022. A further directions was held on 10 May 2022 and was adjourned until 12 May 2022. At that hearing Mallee Resources Ltd (Mallee) and Hartree Metals LLC (Hartree) appeared by counsel. Mallee and Hartree, along with the plaintiffs, opposed Mr Su being heard on the substantive application. It was their position Mr Su was not an 'interested person' as that expression is used in s 444GA(2)(c) of the Corporations Act 2001 (Cth) (Corporations Act). Counsel for the plaintiffs, Mallee and Hartree all pressed to have the question of Mr Su's standing determined as a preliminary point. Counsel for Mr Su maintained any issue as to Mr Su's standing should await final determination of the application. After hearing argument, I ordered the question of standing be dealt with independently of the final application. These reasons deal with two issues - why I ordered the question of standing be heard before final determination of the application and, the question of standing itself.
As the originating process makes clear, the plaintiffs were the joint and several administrators of Allegiance Mining Pty Ltd (Allegiance). Now, pursuant to a Deed of Company Arrangement (DOCA), they are the joint and several administrators under the Deed. Allegiance is a wholly owned subsidiary of Dundas Mining Pty Ltd (in liquidation) (Dundas). The plaintiffs are the joint and several liquidators of Dundas. Mallee and Hartree are the DOCA proponents. At a meeting held on 22 February 2022 and convened pursuant to s 439A of the Corporations Act, the creditors of the deed company resolved under s 439C of the Corporations Act that the deed company execute the DOCA under s 444B(2) of the Corporations Act.
The DOCA includes a condition precedent to completion that the deed administrators make an application to the court pursuant to s 444GA to transfer all of the existing shares in Allegiance from the members of Allegiance to Mallee or its nominees. Allegiance has 782,455,310 shares on issue. Dundas is the sole shareholder of Allegiance. If orders pursuant to s 444GA are not made by the court by 30 June 2022 the DOCA terminates.
It is this termination date (colloquially known as a 'drop dead date') that has caused difficulty. The plaintiffs are anxious to have the substantive application heard. If it is unopposed (and Mr Su is the only party who has sought to intervene) the hearing is likely to be short - no more than half a day. If Mr Su is given leave then the hearing may take a good deal longer. How much longer depends upon the evidence Mr Su intends to lead and as yet that is not entirely clear.
The plaintiffs are anxious to maintain the present hearing dates (9 and 10 June 2022 have now been set aside) and they took the view clarification of Mr Su's standing at the earliest possible time would allow the dates to be maintained. Counsel for Mallee and Hartree were of the view that it was so clear Mr Su did not have standing and that it was better for the question to be determined as a preliminary matter rather than leaving the issue to the final hearing. Counsel for Mr Su maintained the question of his client's standing was inextricably linked with the evidence Mr Su would lead opposing the order under s 444GA and the two questions ought be heard together.
As I have indicated, I determined there should be a preliminary hearing on the question of standing. I did so on the basis dealing with standing as a preliminary issue was, in case management terms, the better option. Counsel for the plaintiffs was concerned that if the question of Mr Su's standing was put over until the hearing of the substantive application and Mr Su filed evidence on or before 2 June 2022 (as was proposed by counsel for Mr Su) then the hearing dates might be lost because the evidence would have to be answered. There was no certainty that would be the case - it was not entirely clear what evidence Mr Su might lead. But counsels' concerns were understandable. Of course, if Mr Su was refused leave to intervene, he would have a right of appeal. If that appeal was heard urgently and was successful, then it was unlikely the substantive hearing could take place before 30 June 2022. Counsel acknowledged the difficulty but indicated having given the matter careful consideration he was still of the view that dealing of the issue of Mr Su's standing was still the preferable option. In the end, I accepted counsels' submissions and made the necessary orders to allow the preliminary question to be determined ahead of the substantive hearing.
This matter was determined on case management principles. It was a matter of choosing between two equally unpalatable options. On balance it was more likely Mr Su would appeal if he was unsuccessful rather than the other parties. In all likelihood, the plaintiffs and the other interested parties would proceed and the date for hearing of the substantive application would be preserved. However, if necessary, orders could be made allowing Mr Su to lodge his evidence even before the appeal was heard and determined. On the other hand, if the matter was stood over to the substantive hearing there was the real possibility that when Mr Su filed his evidence the hearing dates would be lost. Accordingly, I determined a preliminary hearing was warranted.
Dealing then with the question of standing, as a preliminary matter, counsel for Mr Su submitted that all of the facts arguably relevant to Mr Su's standing must be identified with precision and put beyond controversy either by being agreed or determined by the court. If that were not so, the determination would be impermissibly hypothetical. That submission was clearly correct and was not disputed by counsel for any of the other parties.
As I have indicated, Allegiance is a wholly owned subsidiary of Dundas. Allegiance is the sole owner of the Avebury Nickel Mine which is located in Tasmania. The mine is the primary asset of the corporate group which comprises Allegiance, Dundas and certain other entities. Mr Su holds approximately 13% of the shares in Dundas. In addition, Mr Su is a related party creditor of Dundas in an amount of $200,000. Mr Su's status as a creditor is subject to a shareholder's agreement which bars the making of any claims. However, it does not deny the existence of the debt. For the purposes of this application, I accept Mr Su's standing falls to be determined on the basis there is no dispute that he is a related party creditor as well as a shareholder of Dundas.
In his written submissions, counsel for Mr Su identified three aspects of the DOCA which he said were important. They are (a) pursuant to a fund established after the execution of the DOCA, all of Allegiance's creditors are expected to receive 100 c/$. Further, and in the same way, all of Dundas' non‑related creditors had their liabilities assumed by Allegiance and are also to receive 100 c/$; (b) besides the amount paid to its creditors, whose liabilities are assumed by Allegiance, Dundas will receive a further return of $3.4 million in cash and, in exchange for the transfer of its shares in Allegiance at completion it will receive a further $12.5 million in Mallee shares or the equivalent amount in cash from Hartree. The amount that is certain to be paid to Dundas and its creditors under the DOCA is $19.4 million. By these mechanisms, it is estimated that all of Dundas' related party creditors would receive 32.8 c/$. No return is expected for shareholders of Dundas; (c) if an order is not obtained under s 444GA by 30 June 2022 (or, if extended, 30 October 2022) then unless the condition precedent is waived by Mallee, the DOCA will cease to be binding. If the DOCA ceases to be binding or otherwise terminates, Allegiance may, and probably will, go into liquidation.
In his affidavit affirmed 11 May 2022, Mr Su says he is aware of two commercial proposals that have been submitted to the plaintiffs in both their capacity as deed administrators and as liquidators of Dundas. Each of the proposals would only be available for acceptance if leave under s 444GA is not granted and the DOCA is terminated. It is appropriate to provide just a brief summary of both of these proposals.
Under the first proposal, an investor (European Lithium Limited) would pay at least $100 million to acquire 75% of the shares on issue in Dundas by the issue of new shares. The result would be the existing shareholders of Dundas, including Mr Su, would collectively retain 25% of the shares on issue. The proposal requires the investor to pay out Hartree's secured debt and procure the release either by deferral or satisfaction of all related party claims against Dundas and certain other group entities.
The second proposal is to the effect an investor would purchase all of the shares in Allegiance for $110 million. These shares then being transferred to the investor as to 75% and Mr Su as to 25%. Once again, the secured debt would be repaid in full. The balance of the purchase price for the shares in Allegiance would be dealt with in the ordinary course of the liquidation of Dundas. It is noteworthy that at the time both proposals were advanced, Mr Su and the proponents of the two proposals were unaware of the amount of the secured debt.
On 17 May 2022, Mr Tucker filed a further affidavit which detailed Hartree's secured debt. Based upon information provided to him, Mr Tucker says he understands the debt to be in the region of US$67 million. That, in Australian dollars, at the present exchange rate, is approximately $97.3 million.
Although this information was provided late in the day, this advice as to the amount of the debt has been factored into both proposals. It would seem the amount owing to the secured creditor is considerably more than Mr Su anticipated. What effect that might have on any proposal is, at present, unknown. Looking at the figures in each proposal, it means, at the very least, the proponents would have to provide significantly more funds than they originally anticipated. But for the purposes of this application, I am prepared to assume that there is a prospect of alternative proposals being advanced, while at the same time acknowledging the proposals would need to be significantly refined and may or may not eventuate.
In his written submissions, counsel for Mr Su highlighted the fact that under both proposals, Dundas' shares in Allegiance would have a materially higher value than is given to them under the terms of the DOCA. That in turn would mean Mr Su, as a shareholder of Dundas, would be materially better off under each of the proposals than he would be under the DOCA. This submission is based upon a number of assumptions but it is important in the context of Mr Su's application. In fact, for reasons which I will set out below, I very much doubt Mr Su, as a shareholder of Dundas would be better off under either of the proposals were they to be implemented. But for the purposes of this application, and to give Mr Su the benefit of any doubt on the issue, I will proceed on the assumption Mr Su, in his capacity as a shareholder of Dundas, would be better off if either of the proposals were implemented.
All parties agreed there is no decision directly on this subject of the meaning of the expression 'interested person' in s 444GA(2)(c). The same expression is used in s 445D(2)(c) and that subsection was considered by Austin J in Allatech Pty Ltd v Construction Management Group Pty Ltd [2002] NSWSC 293. His Honour's interpretation was cited with approval by the New South Wales Court of Appeal in BE Australia WD Pty Ltd v Sutton [2011] NSWCA 414. All parties accepted that, subject to modification to reflect the difference in subject matter, Allatech elucidates the proper interpretation of the descriptor 'any other interested person'.
The facts in Allatech can be summarised in this way. A company that had operated as a builder entered into a DOCA. Allatech was a company with whom the deed company had contracted to provide building services. Allatech had obtained what it claimed to be certificates from the architect under the building contract certifying that the deed company owed it moneys totalling $129,209. The deed company disputed these alleged certificates and asserted that Allatech Pty Ltd in fact owed it moneys. The deed company had sued Allatech for that alleged debt. The object of the DOCA was to provide funding to enable the deed company to continue the litigation against Allatech to recover the debt it alleged to be owed. Allatech applied under s 445D to terminate the DOCA on the basis of alleged non‑disclosures to the company's creditors. Leaving aside Allatech's claim to have standing as a creditor of the deed company, it asserted it was an 'interested person' under s 445D(2)(c). It made this submission on two grounds. First, because it had a genuinely arguable claim to be a creditor of the deed company and its debt would be extinguished by the DOCA. Second, because the effect of the DOCA was to put the deed company into funds to enable it to resist Allatech's claim.
Austin J noted that the phrase 'other interested person' was not defined in the Corporations Act. His Honour noted that a draft bill prepared by what is usually known as the Harmer Committee envisaged termination of a deed only by an administrator, a creditor of the company or a regulatory authority. When changes recommended by the Harmer Committee were implemented, s 445G contained the reference to 'any other interested person' without any indication in the explanatory memorandum to the Bill as to why the change was made. His Honour notes it is reasonable to assume there was a legislative intention to allow a broader class of persons to apply for termination of a deed.
His Honour then referred to s 446E(3) and s 449D(3). Standing to make applications under these sections is confined to creditors, members, officers and in the case of s 449D(3), ASIC. In his Honour's view, that further confirms the use of the phrase 'other interested person' was added to broaden the class of potential applicants.
Against this background, his Honour expresses the view 'other interested person' in s 445D(2) is intended to encompass applicants whose material rights or economic interests are or may be affected by the operation or effect of the deed of company arrangement which they seek to challenge 'at least where the effect is substantial'. His Honour then concludes:
[21]An applicant whose substantial economic interests are at stake would be a person whose 'interests are affected' for the purposes of s27 and s30, according to Davies J's reasoning. Counsel for CMG submitted that I should not use this analogy because 'administrative law is another universe of discourse'. I disagree. The administrative law jurisprudence seeks to identify the occasions when a person complaining about an administrative decision has a sufficient practical interest to have the decision reviewed. That is broadly the same task as the legislature has assigned to the Court by using the words 'other interested person' in s445D(2). It is not necessary for me to hold that the words 'interests are affected' in the Administrative Appeals Tribunal Act identify precisely the same class of applicants as the words 'other interested person' in s445D(2). It is enough to say that when material legal rights or pecuniary or other economic interests of the applicant are or may be substantially affected by the matter in issue, the applicant is an 'other interested person', however much further those words may extend, just as the applicant would also be a person whose 'interests are affected' for the purposes of the Administrative Appeals Tribunal Act.

Whilst I would not presume to question his Honour's formulation of the proper test, I do have some hesitation in adopting the view that the material rights or pecuniary or other economic interests must be 'substantially' affected by the matter in issue. That tends to suggest that in determining whether or not a party has standing, a quantitative exercise must be undertaken to work out the extent to which a person is identified. For instance, in the Allatech case, Allatech claimed it was owed $112,301. There is no indication in the judgment as to the debts and assets of the defendant Construction Management Group Pty Ltd. If that corporation had collapsed with debts of $10 million and assets of $200,000 so that even if Allatech was able to prove in the liquidation, would that have justified a conclusion Allatech's economic rights were substantially impacted?
The better view may be that the reference to 'substantially' refers to materially or significantly impact. In other words, as the interested parties in this case would have it, there must be a direct rather than reflective impact on the party seeking to be joined. I will deal further with this issue below. However, it is appropriate to finish dealing with the Allatech decision by quoting his Honour's reasons for determining Allatech was an 'other interested person':
[22]I have decided that Allatech is a person whose material rights or pecuniary or other economic interests are substantially affected by the deed of company arrangement in the present case. I have reached this conclusion on both of the grounds advanced by counsel for Allatech.
[23]First, counsel for Allatech draws attention to the provisions of the deed of company arrangement which impose a moratorium on 'Deed Creditors' to take proceedings of various kinds for recovery of debts (see cl15), and the provisions which require 'Deed Creditors' to accept the entitlements provided for them under the deed in full satisfaction and discharge of their debts and extinguish the debts of 'Deed Creditors' once a distribution has been made (cl16 and cl17). The words 'Deed Creditor' are defined in the deed to mean 'any person who is or claims to be owed a debt by the Company on [15 June 2000] ...'.
[24]For the purposes of determination of the separate question under Part 31, CMG has conceded that Allatech has claimed to be a creditor on 15 June 2000 and that its claim was included in the claims of creditors referred to in the Report as to Affairs attached to Mr Hillig's Report. Allatech contends that it is consequently a Deed Creditor for the purposes of the deed of company arrangement, and accordingly that its rights are affected by the deed because its claim to payment will be subject to a moratorium and extinguishment if the deed stands.
[25]CMG's response is that a person cannot become an 'interested person' for the purposes of s445D(2) merely by claiming to be creditor. Thus, a madman who makes a totally unsubstantiated and irrational claim to be a creditor surely cannot be an interested person for the purposes of s445D(2), even if that claim brings him literally within the definition of 'Deed Creditor'. CMG's submission is that where a claim to be a creditor is so misguided as to fall within the category of someone with no claim at all, there is no standing to seek termination of the deed; conversely, for a person who claims to be a creditor to be an interested person having standing, the claim must be more than a bare claim. Various formulations of the additional ingredient could be adopted, words such as 'bona fide claim' or 'prima facie claim' or 'claim with the colour of right' coming to mind as possible formulations.
[26]I agree with the thrust of CMG's submission on this point. It is not necessary for me to formulate the additional ingredient in order to resolve the present case, but it seems to me that there must be some additional ingredient beyond the bare claim to be a creditor before it can sensibly be said that the claimant is an interested person for the purposes of s445D(2). The administrative law analogy suggests that this is so - in the passage from the Control Investment case quoted above, Davies J referred to the use in various cases of adjectives such as 'real', 'genuine' and 'direct'. The reason why I need not go further than to recognise that there is an additional ingredient of some sort is that in my view, whatever formulation of the additional ingredient is adopted, it is clearly satisfied here. In the present case Allatech has a claim to be a creditor which, whether it is ultimately found to be correct, relies on grounds that are genuinely arguable. I shall explain why I have reached this conclusion.
The submissions of both Mallee and Hartree follow a similar theme. Both focus on the fact that Mr Su has, in their view, an indirect interest in the company or DOCA in question. They say Mr Su claims to be an 'interested person' for three reasons:
(a)his shareholding in Dundas;
(b)his rights as an unsecured creditor of Dundas; and
(c)by virtue of the existence of the alternative proposals.
Mallee and Hartree submit the interests claimed by Mr Su are indirect in that they are entirely derivative of Dundas' interests as a member of Allegiance. That is to say, Mr Su's material rights or economic interests could only be substantially effected by the transfer of the Allegiance shares if both:
(a)the transfer of shares under the DOCA and the consideration to flow to Dundas as a result of that transfer would affect Dundas' interests; and
(b)that effect on Dundas' interests would necessary cause a substantial effect on Mr Su's material rights or economic interests.
With respect, I think that is a proper formulation of the position Mr Su finds himself in. Hartree submits Mr Su's situation, so far as his shareholding in Dundas is concerned, is analogous to one of reflective loss. The reflective loss principle precludes a shareholder from independently seeking to recover loss in an action against a wrongdoer where the claimed loss derives from, and is not independent of, loss suffered by the company which the company itself could recoup in a separate action against the wrongdoer: see Minerology Pty Ltd v Sino Iron Pty Ltd [No 2] [2021] WASCA 105 [260] ‑ [261].
In a further refinement of this submission, counsel notes Dundas is expressly afforded standing under s 444GA(2)(a). Dundas can oppose the grant of leave. It follows Dundas is expressly afforded standing to vindicate the interest on which Mr Su must rely in order to derive his own claimed interest. It is also worthy of note that in this case, special purpose liquidators have been appointed to Dundas. As counsel for Hartree points out, responsibility for determining where the best interests of a member lie in a s 444GA(2)(a) application rests with ultimately the liquidators via the special purpose liquidators.
Counsel for Mallee and Hartree in their submissions drew a distinction between the way the expression 'other interested person' was used in s 444GA, s 445D, s 447A and s 450E. It is only in s 445GA that the standing provision is proscriptive. Section 444GA(2) offers a general restriction on persons who may oppose an application and then posits four exceptions. By way of contrast, s 445D(2) allows an application to be made by any of the persons referred to in s 445D(2). Counsel for Mallee and Hartree submitted this indicated a tighter control in s 444GA than was the case with the other sections. Counsel for Mr Su submitted the test was uniform across the division.
On balance, I am satisfied counsel for Mr Su was correct in his view of the meaning to be given to the words. I can see no reason to ascribe different meaning to the phrase depending on particular sections. I would, however, accept whether or not an individual fits within the category of 'other interested person' could depend upon which of the sections is engaged. For instance, s 445D is concerned with the setting aside of a DOCA. It does not refer to a shareholder of a company the subject of a deed being able to make an application. That is because the DOCA is particularly concerned with the creditors and dealing with their claims. So a shareholder would not, prima facie, qualify as 'any other interested person'. In contrast, s 444GA specifically refers to a member of the company. That is because if the shares are to be transferred at no value it is potentially the shareholder who looses out. In the end, the question of why qualifies as 'any other interested party' must depend upon the nature of the application being made.
It was further submitted by counsel for Hartree that the restriction found in s 444GA was intended to limit the number of persons who could appear and oppose an application. As counsel for Mr Su pointed out, there is no warrant for any numerical limitation on the phrase 'other persons'. If 50 individuals, all of whom were shareholders in a corporation, each indicated they intended to oppose the application then each would be entitled to be heard. Certainly there is no reason to refuse Mr Su standing on the basis his presence would in some way complicate the application.
In his submissions, counsel for Hartree collected a number of authorities which he said had applied Austin J's formulation. There were no cases where Austin J's formula had been applied to an indirect interest in the company or the DOCA in question. Counsel for Mr Su took issue with this proposition and referred to the decision of the Queensland Supreme Court in Public Trustee (Qld) v OctaviarLtd [2009] QSC 202. It is unnecessary to go to the facts in what is a very complicated case. Counsel placed reliance upon par 8 of the decision. That paragraph reads as follows:
[8]It is not disputed that the Public Trustee is a creditor of OL. Accordingly, he has standing to apply for the termination of its deed. The Public Trustee claims to be a creditor of OA. The administrators disagree. But they, and all other parties here, apparently accept that the Public Trustee has standing to apply for the termination of the deed for OA on the basis that he is an 'interested person' within the meaning of s 445D(2)(c). As will appear, the interest of the Public Trustee as a substantial creditor of OL makes him an interested person because of the potential impact of the DOCA for OA upon the amount of funds to be distributed to creditors of OL.
It is the final sentence of that paragraph which counsel saw as important. He submitted it was a case of an indirect interest. If that is the correct reading of what his Honour was saying, then it certainly is a very clear case on the facts. There was a direct correlation between the issue of whether the Public Trustee was a substantial creditor of OL and the funds to be distributed to the creditors of OL. That is a rather different proposition from what is proposed in this case where Mr Su is a shareholder of Dundas.
Sofar as the plaintiffs are concerned, I have already mentioned the proposals which have been put forward and on which Mr Su relies. During the course of his submissions, counsel for the plaintiffs sought, by reference to various documents, to establish it was unlikely shareholders of Dundas would be left with any value even if one or other of the proposals was accepted. As I indicated earlier in these reasons, I accept there are difficulties with respect to each proposal. But this application was not the time to determine whether or not the shareholders would benefit and to what extent if one of the proposals was to be accepted. While acknowledging counsel's submissions, I should make it clear that the considerations he advanced have played no part in my decision.
One of the matters raised by counsel for Mr Su was the question of who might be 'any other interested party' if Mr Su did not qualify. Clearly the madman referred to by Austin J would not qualify; nor would a busybody as that word was often used by Lord Denning. Would an environmental activist who was opposed to mining qualify? Probably not. Employees of the company might, particularly if their terms of employment included a share incentive scheme. However, I would accept it is difficult to envisage who might be included if Mr Su is not.
In the end, I am satisfied this matter must be determined by reference to first principles. It is fundamental in corporations law that a company can sue for loss and damage that it suffered. But that right does not extend to a shareholder unless the shareholder obtains leave under the derivative action provisions of the corporations law to take action in the name of the company. Here Dundas can oppose the plaintiffs' application. The special purpose liquidator is independent and can make a decision as to whether to support or oppose the application in the same way the board of a solvent company can make such a decision. That is the optimum way for this matter to be resolved.
In my view, Mr Su has not made out that he is an 'interested person' under the relevant subsection. His interest is not substantial in the sense that it is not in any way direct. It is rather an indirect interest which, in my view, can be characterised as reflective. The proper party to the s 444GA application who represents the interests of Mr Su is the liquidators of Dundas. To allow Mr Su to participate in this application would broaden the class of persons to an extent which is both unnecessary and unwarranted.
Mr Su's application will be dismissed. The parties should file short submissions with respect to costs (if costs cannot be agreed) within seven days of the publication of these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AH
Associate to Master Sanderson
20 MAY 2022