Robert Michael Kirman and Robert Conry Brauer as Joint and Several Deed Administrators of Alita Resources Limited (ACN 147 393 735) (Receivers and Managers Appointed) (Subject to Deed of Company Arrangement) v... - [2023] WASC 374

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   ROBERT MICHAEL KIRMAN AND ROBERT CONRY BRAUER AS JOINT AND SEVERAL DEED ADMINISTRATORS OF ALITA RESOURCES LIMITED (ACN 147 393 735) (RECEIVERS AND MANAGERS APPOINTED) (SUBJECT TO DEED OF COMPANY ARRANGEMENT) -v- AUSTROID CORPORATION (A COMPANY INCORPORATED IN THE UNITED STATES OF AMERICA WITH BUSINESS IDENTIFICATION NO NV20201866500) [No 2] [2023] WASC 374
CORAM:   HILL J
HEARD:   27 SEPTEMBER 2023
DELIVERED          :   27 SEPTEMBER 2023
PUBLISHED           :   28 SEPTEMBER 2023
FILE NO/S:   COR 134 of 2023
BETWEEN:   ROBERT MICHAEL KIRMAN AND ROBERT CONRY BRAUER AS JOINT AND SEVERAL DEED ADMINISTRATORS OF ALITA RESOURCES LIMITED (ACN 147 393 735) (RECEIVERS AND MANAGERS APPOINTED) (SUBJECT TO DEED OF COMPANY ARRANGEMENT)
First Plaintiff
ALITA RESOURCES LIMITED (ACN 147 393 735) (RECEIVERS AND MANAGERS APPOINTED) (SUBJECT TO DEED OF COMPANY ARRANGEMENT)
Second Plaintiff
AND
AUSTROID CORPORATION (A COMPANY INCORPORATED IN THE UNITED STATES OF AMERICA WITH BUSINESS IDENTIFICATION NO NV20201866500)
First Defendant
RICHARD SCOTT TUCKER AND JOHN ALLAN BUMBAK IN THEIR CAPACITY AS JOINT AND SEVERAL RECEIVERS AND MANAGERS OF ALITA RESOURCES LIMITED (ACN 147 393 735) (RECEIVERS AND MANAGERS APPOINTED) (SUBJECT TO DEED OF COMPANY ARRANGEMENT)
Second Defendant
TAWANA RESOURCES PTY LTD (ACN 085 166 721)
Third Defendant
LITHCO NO.2 PTY LTD (ACN 612 726 922)
Fourth Defendant
YIHE CLEANTECH MATERIAL LTD
Fifth Defendant

Catchwords:

Corporations - Winding up - Application for orders under s 447A of the Corporations Act 2001 (Cth) for s 446AA to apply on the termination of a deed of company arrangement - Application for orders under s 447A that on termination of the deed of company arrangement the first plaintiffs and another be appointed liquidators - Application granted

Corporations - Winding up - Application for approval for the first plaintiffs and another in their capacity as liquidators to enter into a share sale agreement and deed of release - Application granted

Legislation:

Corporations Act 2001 (Cth) s 446AA, s 447A, s 477(2B)

Result:

Application granted

Category: B

Representation:

Counsel:

First Plaintiff	:	W C J Zappia
Second Plaintiff	:	W C J Zappia
First Defendant	:	B Roberts QC & N J Wallwork
Second Defendant	:	No appearance
Third Defendant	:	A J Papamatheos
Fourth Defendant	:	A J Papamatheos
Fifth Defendant	:	P Saraceni

Solicitors:

First Plaintiff	:	Clayton Utz
Second Plaintiff	:	Clayton Utz
First Defendant	:	Lavan
Second Defendant	:	King & Wood Mallesons
Third Defendant	:	Gilbert + Tobin
Fourth Defendant	:	Gilbert + Tobin
Fifth Defendant	:	Clifford Chance

Cases referred to in decision:

Australasian Memory Pty Ltd v Brien [2000] HCA 30; (2000) 200 CLR 270
BE Australia WD Pty Ltd (subject to a deed of company arrangement) v Sutton [2011] NSWCA 414; (2011) 82 NSWLR 336
Calabretta v Redpen Developments Pty Ltd (in liq) [2010] FCA 81; (2010) 183 FCR 47
Chalmsbury Nominees Pty Ltd v Alita Resources Ltd [2023] WASC 97
Gibbons v LibertyOne Ltd [2002] NSWSC 274; (2002) 41 ACSR 442
Honest Remark Pty Ltd v Allstate Explorations NL [2006] NSWSC 735; (2006) 201 FLR 456
Re Dickerson (in their capacity as joint and several deed administrators of McWilliam's Wines Group Ltd) [2021] FCA 431
Re HIH Insurance Ltd [2004] NSWSC 5
Re McDermott and Potts [2019] VSCA 23
Re Spedley Securities Ltd (in liq) (1992) 9 ACSR 83
Re Stewart; Newtronics Pty Ltd [2007] FCA 1375
Wainter Pty Ltd, in the matter of New Tel Limited (in liq) [2004] FCA 1154; (2004) 210 ALR 270

HILL J:

On 31 August 2023, the plaintiffs filed an originating process seeking orders under, among other sections, s 447A and s 477(2B) of the Corporations Act 2001 (Cth) (Act).
At the time of filing the originating process, the plaintiffs requested the matter be listed for an urgent interlocutory hearing for orders restraining the defendants from taking any steps to replace the first plaintiffs as deed administrators or to dispose of the shares of the third defendant (Tawana Resources) or the assets of the fourth defendant (Lithco) prior to the hearing of the originating process and for confidentiality orders over an affidavit of Mr Kirman filed 31 August 2023.
Interim orders were made on 1 September 2023 to, in effect, preserve the status quo pending a hearing of the interlocutory application, as well as confidentiality orders restricting access to Mr Kirman's first and second confidential affidavits. Since that date, the interim orders have been extended on a number of occasions.
On 26 September 2023, the plaintiffs filed an amended originating process together with a minute of proposed orders. The defendants do not oppose the plaintiffs being granted leave to amend the originating process in terms of the minute.
The first defendant (Austroid) consents to orders being made in terms of the amended originating process and the minute of proposed orders. The second, third and fourth defendants neither consent to nor oppose these orders. The fifth defendant (Yihe) consents to the relief sought under s 447A of the Act (as well as for orders vacating the interim restraints and to release parties from undertakings that had been given) and otherwise does not oppose the orders.
The final relief sought in the amended originating process is essentially limited to two matters. First, orders under s 447A(1) of the Act to vary the operation of pt 5.3A of the Act so that:
(a)s 446AA of the Act applies if or when the Deed of Company Arrangement (DOCA) between Austroid and the second plaintiff (Alita) entered into on 23 December 2020 (Alita DOCA) is terminated pursuant to cl 6.4 of that DOCA; and
(b)on the issue of a notice of termination of the Alita DOCA, that Matthew Wayne Caddy be appointed jointly and severally as liquidator of Alita together with the first plaintiffs.
Second, orders are sought under s 477(2B) of the Act for approval to enter into a share sale agreement and a deed of release in the forms annexed to the Fourth Confidential Affidavit of Mr Kirman filed 26 September 2023.
At the conclusion of the hearing, I made orders in terms of an amended minute of proposed orders (following discussions between the parties) and indicated I would publish reasons for my decision. These are those reasons.

Evidence on the application

In support of their application for final relief, the plaintiffs relied on the following affidavits of Mr Kirman:
(a)three open affidavits filed 31 August 2023, 8 September 2023 and 26 September 2023; and
(b)four confidential affidavits: two filed on 31 August 2023, one on 8 September 2023 and the fourth on 26 September 2023.

Factual background

The factual background to this matter is somewhat long and complicated. I most recently summarised this background in Chalmsbury Nominees Pty Ltd v Alita Resources Ltd.[1]
[1] Chalmsbury Nominees Pty Ltd v Alita Resources Ltd [2023] WASC 97 [10] - [26].
Relevantly, for the purpose of this application, the first plaintiffs (Deed Administrators) are the deed administrators of the Alita DOCA. At the time this was executed, Austroid was the sole creditor of Alita.
The purpose of the Alita DOCA is to enable the transfer of the issued share capital in Alita to Austroid or its nominee in exchange for the discharge of the entirety of the debt owed by Alita to Austroid.
The material terms of the Alita DOCA are as follows:
(a)the Deed Administrators were appointed the joint and several deed administrators of the Alita DOCA (cl 4.1);
(b)no property of Alita was available for distribution to the creditors (cl 8);
(c)on effectuation of the Alita DOCA, any claims Austroid had against Alita were not released (cls 1.1, 9.1, 10.1); and
(d)subject to satisfaction or waiver of the condition precedents on the Effectuation Date:
(i)the Deed Administrators were required to transfer all the issued shares in Alita (Alita Shares) to Austroid (or its nominee or as it directs) (cl 7.2.1); and
(ii)control of Alita would revert to Alita's directors (cl 7.2.3).
There are a number of conditions precedent to the effectuation of the Alita DOCA, which are set out in cl 6. These include:
(a)approval of the court under s 444GA of the Act to the transfer of the Alita Shares to Austroid (cl 6.1.6);
(b)approval of the Foreign Investment Review Board (FIRB) to the transfer of the Alita Shares to Austroid (cl 6.1.7); and
(c)ASIC providing relief for the purposes of s 606 of the Act (cl 6.1.4).
Satisfaction of the conditions precedent could only be waived by agreement between Austroid and the Deed Administrators (cl 6.5).
Austroid was required to notify the Deed Administrators in writing that all the conditions precedent to effectuation had been satisfied by 31 January 2022 (referred to by the parties as the Sunset Date), failing which the Deed Administrators had a right to (cl 6.4):
(a)immediately terminate the Alita DOCA by notice in writing to Austroid; or
(b)call a meeting of creditors to consider varying or terminating the Alita DOCA.
Clause 17 of the Alita DOCA addressed the termination of the Alita DOCA. Pursuant to cl 17.2, where the Deed Administrators determined it was no longer practicable to implement the Alita DOCA, the Deed Administrators could call a meeting of creditors to consider varying or terminating the Alita DOCA. Under cl 17.3, where the creditors resolved to terminate the Alita DOCA and the company be wound up, Alita was taken to have passed a special resolution under s 491 of the Act that Alita be wound up voluntarily and to have done so without a declaration having been made and lodged under s 494, and s 446A(3), (5) to (7) and s 446B of the Act applied as if Alita was being wound up under s 446A of the Act.
Alita's sole asset is its 100% shareholding in Tawana Resources, whose sole asset is its 100% shareholding in Lithco. Lithco is the owner of the Bald Hill lithium mine, located in the Eastern Goldfields in Western Australia.
On 2 March 2022, Lithco entered into a series of agreements with Yihe, namely:
(a)an offtake agreement;
(b)a loan facility agreement, under which Yihe agreed to advance Lithco a maximum of $USD30 million to be used as working capital to resume mining operations at Bald Hill, which was then in care and maintenance; and
(c)a General Security Deed under which Lithco granted Yihe a security interest under the Personal Property Securities Act 2009 (Cth) in all its present and after acquired property as security for any advances made under the loan facility agreement.
The loan facility agreement and the offtake agreement contain terms which permit Yihe to offset any amounts it owes under the offtake agreement against amounts owed by Lithco under the loan facility agreement.
The evidence of Mr Kirman is that the resumption of mining operations in or around March 2022 has not resulted in a reduction of the indebtedness of Alita and its subsidiaries. In fact, his evidence is that the overall indebtedness of Alita and its subsidiaries has increased from $48 million to $188 million since the DOCA was entered into. Of this, approximately $AUD72 million relates to amounts Lithco owes to Yihe under the loan facility agreement.[2]
[2] Affidavit of Robert Michael Kirman filed 31 August 2023 'RMK26'.
The Sunset Date of 31 January 2022 has been varied by agreement between Austroid and the Deed Administrators on numerous occasions. The current Sunset Date is 31 August 2023.
On 20 July 2023, the Treasurer of the Commonwealth of Australia made an order under s 67 of the Foreign Acquisitions and Takeovers Act 1975 (Cth) which, in effect (Treasurer's Order):
(a)prohibited the transfer of the Alita Shares to Austroid and the acquisition by Austroid of any further interest in Alita; and
(b)directed that Austroid not acquire any further interest in securities in Alita.
The effect of this order is that the condition precedent in the Alita DOCA with respect to FIRB approval cannot be satisfied.
In July 2023, the Deed Administrators received an unsolicited proposal from Mineral Resources Ltd (Mineral Resources) to acquire all of Alita's shareholding in Tawana. Ultimately, on 30 August 2023, the Deed Administrators entered into an implementation agreement with Lithium Resources Investments Pty Ltd (Lithium Resources) and its parent company, Mineral Resources. On 26 September 2023, these parties entered into a deed of amendment and restatement implementation deed which amended the mechanics by which Lithium Resources and Mineral Resources would acquire the existing debt of Alita and make the proposed equity contribution to Alita.
On 31 August 2023, the solicitors for the Deed Administrators gave five business days' notice to Austroid's solicitors of the Deed Administrators' intention to terminate the Alita DOCA.
From 12.00 am on 1 September 2023, the Deed Administrators have had the right to terminate the Alita DOCA. However, under the terms of cl 6.4 of the Alita DOCA, if the Alita DOCA is terminated, there is no requirement that Alita be wound up. As a result, if the Alita DOCA is terminated, control of Alita will return to its directors.
The evidence of Mr Kirman, one of the Deed Administrators, is that:
(a)the Deed Administrators are not prepared to agree to a waiver of the conditions precedent of the Alita DOCA because it would impose an obligation on them to transfer the Alita Shares to Austroid in contravention of the Treasurer's Order;
(b)the Alita DOCA cannot effectuate;
(c)in his view, it is in Alita's best interests for the Alita DOCA to be terminated by notice and for the proposed transaction with Lithium Resources and Mineral Resources to be entered into; and
(d)it is a term of the proposed transaction that the Deed Administrators apply for the orders in the amended originating process.

Section 447A application

The Deed Administrators accept that if they exercise their right to terminate the Alita DOCA, s 446AA of the Act will not apply. As a result, in the absence of an order under s 447A of the Act varying the way in which s 446AA is to apply, control of Alita will be returned to its directors.
The Deed Administrators submit that it is not in the interests of Alita's members for control to be returned to Alita's directors. This is because Alita would remain subject to its continuing indebtedness to Austroid and Austroid's continuing control of the company as a result of its security rights. The Deed Administrators contend it is in the interests of Alita's members that the proposed transaction proceeds, which requires Alita to be put into liquidation. For this reason, the Deed Administrators seek an order under s 447A(1) to the effect that s 446AA will apply if or when the Alita DOCA is terminated by the Deed Administrators under the terms of the Alita DOCA, and for Matthew Wayne Caddy to be appointed joint and several liquidator of Alita together with the first plaintiffs.
At the hearing, senior counsel for Austroid emphasised that these orders could have been achieved under the terms of the Alita DOCA. That is, if a meeting of creditors had been convened by the Deed Administrators, Austroid, as the sole creditor of Alita, could have resolved for Alita to be wound up.
Section 447A(1) of the Act provides that:
The Court may make such order as it thinks appropriate about how [Part 5.3A] is to operate in relation to a particular company.
Pursuant to s 447A(4)(d), the Deed Administrators can apply for an order under this section.
The objects of Pt 5.3A are set out in s 435A of the Act. This section provides that:
The object of this Part, and Schedule 2 to the extent that it relates to this Part, is to provide for the business, property and affairs of an insolvent company to be administered in a way that:
(a) maximises the chances of the company, or as much as possible of its business, continuing in existence; or
(b) if it is not possible for the company or its business to continue in existence— results in a better return for the company's creditors and members than would result from an immediate winding up of the company.
Section 446A and s 446AA of the Act set out the circumstances in which an administrator will transition to a liquidator. Relevantly, s 446AA(1) provides that:
This section applies if a company has executed a deed of company arrangement and:
(a) the Court, at a particular time, makes an order under section 445D terminating the deed of company arrangement; or
(b) both:
(i) the deed of company arrangement specifies circumstances in which the deed is to terminate and the company is to be wound up; and
(ii) those circumstances exist at a particular time.
The powers of the court under s 447A of the Act are very wide, although not without limit.[3] It is necessary for an order under s 447A to have a nexus with how Pt 5.3A is to operate in relation to a particular company.[4] The power should only be used to achieve one of the purposes for which it was conferred.[5]
[3] Australasian Memory Pty Ltd v Brien [2000] HCA 30; (2000) 200 CLR 270.
[4] Honest Remark Pty Ltd v Allstate Explorations NL [2006] NSWSC 735; (2006) 201 FLR 456 [66] (Brereton J); Wainter Pty Ltd, in the matter of New Tel Limited (in liq) [2004] FCA 1154; (2004) 210 ALR 270 [7] (Nicholson J).
[5] See, for example, BE Australia WD Pty Ltd (subject to a deed of company arrangement) v Sutton [2011] NSWCA 414; (2011) 82 NSWLR 336 [1], [207] (McColl JA, Campbell JA).
In Re Dickerson (in their capacity as joint and several deed administrators of McWilliam's Wines Group Ltd), Farrell J summarised the principles that govern an application under s 447A of the Act.[6]
[6] Re Dickerson (in their capacity as joint and several deed administrators of McWilliam's Wines Group Ltd) [2021] FCA 431.
In exercising its discretion under this section, the court has regard to all of the circumstances of the case, including consideration of those who have an interest in the matter and those who may be affected by the granting of the relief sought.[7]
[7] Calabretta v Redpen Developments Pty Ltd (in liq) [2010] FCA 81; (2010) 183 FCR 47 [37].
In Gibbons v LibertyOne Ltd, Austin J explained the breadth of the power conferred by s 447A following the High Court's decision in Australasian Memory Pty Ltd v Brien in the following terms:[8]
Their Honours held that there was nothing on the face of s 447A suggesting that it should be read down (at 279). They found that it could be used to make orders departing from or varying, for the future, other express provisions of Part 5.3A. Its use was not to be confined to curing defects or remedying the consequences of some departure from the scheme set out in the other provisions of Part 5.3A. The section permits orders to be made that alter how Part 5.3A is to operate in relation to a particular company in particular circumstances, not how the Part does operate in relation to that company (at 280).
In their Honours' view, s 447A is an integral part of the legislative scheme provided for by Part 5.3A (at 281). It is not right to characterise the section as a general source of power to which resort cannot be had to 'circumvent' the more limited and particular powers contained in other provisions of Part 5.3A (such as s 439A (6), which empowers the Court to extend the convening period for a meeting, but does not allow the Court to validate a meeting held too early). The legislative intention was to allow s 447A to be used to alter the way other provisions of Part 5.3A operate.
The High Court's observations on these matters suggest that there is power under s 447A to make the kind of order sought by the plaintiff in this case. The plaintiff seeks an order in relation to a particular company in particular circumstances, altering the effect of a provision of Part 5.3A, namely s 446A. The existence of the power to make such an order arises from the broad literal words of s 447A (1) and from the fact that s 447A is integral to Part 5.3A, one of the provisions of which is s 446A.
In their Honours' view, s 447A may be used where the subject company has been under administration, but by the operation of other provisions of Part 5.3A the administration has come to an end (at 282). I observe that one of the ways the administration of a company comes to an end is by the company's creditors resolving under s 439C(c) that the company be wound up (s 435C(2)(c)), and in that event s 446A applies and the winding up proceeds as a creditors' voluntary winding up subject to the modifications imposed by the latter section. Importantly for present purposes, their Honours' observations at 282 mean that s 447A may be used to modify a provision of Part 5.3A, such as s 446A, notwithstanding that the Company is now in a creditors' voluntary winding up by virtue of the earlier operation of s 446A.
Although their Honours regarded the powers conferred by s 447A as wide, they recognised that the powers were subject to some limitations. The principal limitation is that the expression 'how this Part is to operate' is an expression that looks to the future, not the past. However, the temporal requirement is satisfied if the orders made under s 447A have effect only from the time of their making. The section can be used to make an order with future effect, in respect of past matters or events (at 282).
[8] Gibbons v LibertyOne Ltd [2002] NSWSC 274; (2002) 41 ACSR 442 [29] - [33].

Section 447A has previously been used to avoid the consequences of a deemed winding up,[9] although it does not appear to have been used in the present circumstances.
[9] See for example Re Dickerson (in their capacity as joint and several deed administrators of McWilliam's Wines Group Ltd).
In this case, I accept that unless an order is made under s 447A of the Act, if the Alita DOCA is terminated under the terms of the Alita DOCA, control will return to the directors of Alita. This is because there is no application in these proceedings to terminate the Alita DOCA pursuant to s 445D of the Act, nor is there any express provision in the Alita DOCA for the company to be wound up on termination of the DOCA.
I am satisfied that in the circumstances of this case, it is appropriate to make the orders sought by the Deed Administrators. In my view, for the following reasons, these orders are consistent with the objects of Pt 5.3A of the Act, as set out in s 435A(b).
First, on the evidence before me, I accept that Alita (and its subsidiaries) currently has debts of about $188 million. As such, I consider that Alita should be subject to a form of external administration and it is not in the public interest that control return to Alita's directors.
Second, on the evidence before me, I accept there is no prospect of Alita continuing in business and that the objects of s 435A(a) cannot be achieved.
Third, the sole creditor of Alita consents to the proposed transaction.
Fourth, the transaction that is proposed to be entered into by the Deed Administrators will result in Alita's secured debt being repaid in full, Lithium Resources acquiring all of the shares in Tawana, and a significant amount being made available to Alita, which will most likely be distributed to its members. On this basis, I accept that it is in the interests of Alita's creditor and members, and consistent with the objects of Pt 5.3A of the Act, that the proposed transaction proceeds.

Application pursuant to s 477(2B)

In considering an application under s 477(2B), the particular focus of the court is to ensure the winding-up proceeds as expeditiously as circumstances allow.[10]
[10]Re HIH Insurance Ltd [2004] NSWSC 5 [15].
In considering whether to grant the approval sought by the liquidator, the usual approach taken by the court is that:[11]
[T]he court pays regard to the commercial judgment of the liquidator. That is not to say that it rubber stamps whatever is put forward by the liquidator but the court is necessarily confined in attempting to second guess the liquidator in the exercise of his powers, and generally will not interfere unless there can be seen to be some lack of good faith, some error in law or principle, or real and substantial grounds for doubting the prudence of the liquidator's conduct. (citations omitted)
[11] Re Spedley Securities Ltd(in liq) (1992) 9 ACSR 83, 85; cited with approval in numerous authorities including Re McDermott and Potts [2019] VSCA 23 [72].
On an application under s 477(2B) of the Act, the role of the court is to grant or deny approval to the liquidator's proposal. Its role is not to develop some alternative proposal which might seem preferable. In giving approval to the proposal, the court is not endorsing the proposed agreement. It is merely granting permission for the liquidator to exercise his or her own commercial judgment in the matter.[12]
[12] Re Stewart; Newtronics Pty Ltd [2007] FCA 1375 [26].
In considering an application under s 477(2B) of the Act, the court reviews the liquidator's proposal to satisfy itself that there is no error of law or ground for suspecting bad faith or impropriety, and weighs up whether there is any good reason to intervene. An order under s 477(2B) does not constitute an endorsement of the proposed compromise and an approval will not exonerate the liquidator.[13]
[13]Re McDermott and Potts [92(3)].
In exercising its discretion, the court will have due regard to the commercial judgment of the liquidator. The attitude of creditors are also important.[14]
[14]Re McDermott and Potts [92(5)].
Much of the evidence I have considered for the purposes of this application is confidential. For that reason, I am somewhat constrained in the reasons I can give for the decision I have made.
In considering the application, I have taken into account the evidence in Mr Kirman's confidential and non-confidential affidavits. I have also taken into account the fact that the sole creditor of Alita, Austroid, consents to the orders being made, and that a significant shareholder of Alita (who initially sought to be joined to these proceedings, namely the Canaccord parties) did not seek to be heard on the making of the orders.
On the material before me, there is no basis to call into question the decision of the first plaintiffs, on being appointed liquidators of Alita, to propose entering into the share sale agreement and deed of release.
In reaching this decision, there are four key factors I have taken into account.
First, the proposed transactions have the support of the sole creditor of Alita.
Second, I am satisfied that the Deed Administrators have taken into account the interests of the members of Alita.
Third, while the Deed Administrators have received unsolicited approaches for the Bald Hill mine from a number of parties, no‑one other than Lithium Resources and its parent Mineral Resources has made an offer in relation to the Bald Hill mine or the assets of Alita.
Fourth, I am satisfied that entry into the proposed transaction will provide certainty to all parties and expedite the completion of the winding up of Alita, which has been the subject of some form of external administration for at least four years.

Conclusion

For these reasons, at the conclusion of the hearing on 27 September 2023, I made orders in terms of 'Annexure A'.

Annexure A

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
28 SEPTEMBER 2023