St Barbara Limited v Kirkalocka Gold SPV Pty Ltd (Subject to Deed of Company Arrangement) (Receivers and Managers Appointed)
[2025] WASC 453
•23 OCTOBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: ST BARBARA LIMITED -v- KIRKALOCKA GOLD SPV PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (RECEIVERS AND MANAGERS APPOINTED) [2025] WASC 453
CORAM: STRK J
HEARD: 13 AUGUST 2025
DELIVERED : 13 AUGUST 2025
PUBLISHED : 23 OCTOBER 2025
FILE NO/S: COR 120 of 2025
BETWEEN: ST BARBARA LIMITED
Plaintiff
AND
KIRKALOCKA GOLD SPV PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (RECEIVERS AND MANAGERS APPOINTED)
First Defendant
ADAMS NIKITINS, SAMUEL FREEMAN AND CLARE BAILY as joint and several administrators of KIRKALOCKA GOLD SPV PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) (RECEIVERS AND MANAGERS APPOINTED)
Second Defendant
VAUGHAN STRAWBRIDGE, CHRISTOPHER HILL AND HAYDEN WHITE as joint and several receivers of KIRKALOCKA GOLD SPV PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) (RECEIVERS AND MANAGERS APPOINTED)
Third Defendant
SCL AUS LIMITED
Interested Party
Catchwords:
Corporations - Application to vary terms of Deed of Company Arrangement - Turns on own facts
Legislation:
Corporations Act 2001 (Cth), s 444E, s 447A
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | W Zappia |
| First Defendant | : | J Abberton |
| Second Defendant | : | P Honey |
| Third Defendant | : | J Abberton |
| Interested Party | : | M Rose |
Solicitors:
| Plaintiff | : | Corrs Chambers Westgarth |
| First Defendant | : | Lavan |
| Second Defendant | : | Allens |
| Third Defendant | : | Lavan |
| Interested Party | : | Ashurst |
Case(s) referred to in decision(s):
Ansett Australia Ground Staff Superannuation Plan Pty Ltd (ACN 065 590 178) (as trustee of the Ansett Australia Ground Staff Superannuation Plan) v Ansett Australia Ltd (ACN 004 209 410) (subject to a deed of company arrangement) (2004) 49 ACSR 1
Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270
Barboutis v The Kart Centre Pty Ltd [2019] WASCA 184
Barlow v Trinity Mining Services and Supplies Pty Ltd (in administration) [2025] WASC 186
Brash Holdings Ltd (Administrator Appointed) v Katile Pty Ltd [1996] 1 VR 24
Complete Hire and Sales Pty Ltd (ACN 090 519 823) v Terra Firma Constructions Pty Ltd (ACN 605 319 426) [2018] WASCA 88
Correa v Whittingham (2013) 278 FLR 310
Deputy Commissioner of Taxation v Portinex Pty Ltd (2000) 156 FLR 453
Diakos v Pacific Steel Constructions Pty Ltd (subject to deed of company arrangement) (ACN 100 940 145) (2022) 160 ACSR 561
Diakos v Pacific Steel Constructions Pty Ltd, in the matter of Pacific Steel Constructions Pty Ltd (No 2) [2022] FCA 759
Duggan, in the matter of Conomi Group Pty Limited (Subject to Deed of Company Arrangement) [2023] FCA 998
Honest Remark Pty Ltd v Allstate Explorations NL (2006) 234 ALR 765
Jebb as trustee for Trafalga West Investments Trust v Superior Lawns Australia Pty Ltd [2018] WASCA 123
Longley (deed administrator), in the matter of Dixon Advisory & Superannuation Services Pty Ltd (subject to deed of company arrangement) [2024] FCA 70
Mehan v Arrium Ltd (formerly Onesteel Ltd) [2016] NSWSC 1680
R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170
Re Alita Resources Ltd; Ex parte Richard Scott Tucker as joint and several administrators of Alita Resources Ltd (subject to deed of company arrangement) [2020] WASC 430
Re Bosnjak Holdings Pty Ltd (2005) 53 ACSR 8
Re Derwent Howard Media Pty Limited [2011] NSWSC 1164
Re Euco Ltd (ACN 102 448 055) (in liq); Forrest Nursery Pty Ltd (ACN 081 654 346) v Lopez And Verge As Joint And Several Liquidators Of Euco Ltd (ACN 102 448 055) (in liq) (2006) 233 ALR 442
Re Greg Sewell Forgings Pty Ltd (1995) 17 ACSR 602
Re New Tel Ltd (in liq) (2004) 210 ALR 270
Travis Royce Smith as trustee of the Smith Investment Trust v Sandalwood Properties Ltd [2019] WASC 109
Winterton Constructions Pty Ltd v MA Coleman Joinery Co Pty Ltd (1996) 20 ACSR 671
STRK J:
Introduction
By an originating process filed on Friday, 8 August 2025, St Barbara Limited sought various orders pursuant to s 444E and s 447A(1) of the Corporations Act 2001 (Cth), pursuant to the inherent jurisdiction of the Court and pursuant to s 25(6) of the Supreme Court Act 1935 (WA). St Barbara named Kirkalocka Gold SPV Pty Ltd (subject to deed of company arrangement) (receivers and managers appointed) as the first defendant, Kirkalocka's joint and several deed administrators as the second defendant, and Kirkalocka's joint and several receivers and managers as the third defendant to the proceeding.
In summary, by the originating process St Barbara sought orders varying Kirkalocka's deed of company arrangement so as to amend the scope of the release and discharge of claims by royalty holders pursuant to s 447A of the Corporations Act. St Barbara also sought declarations concerning its asserted right to receive from Kirkalocka a royalty, and the extent to which that right is secured by an equitable charge and a vendor's lien. As was noted by counsel, the proceeding had been brought with the hope and expectation that St Barbara would be found to be a secured creditor within the meaning of the Corporations Act, thereby engaging the exception to the release and discharge of claims recorded in the deed of company arrangement (if varied as was proposed).[1]
[1] ts 6 (13 August 2025).
The application was accompanied by a certificate of urgency, which recorded that the application was required to be heard immediately, in circumstances where Kirkalocka's deed of company arrangement dated 22 December 2023 (as had been varied by its creditors on 6 August 2025) (2023 DOCA), was to imminently effectuate, extinguishing claims of St Barbara as a royalty holder.
By way of context, I note that Adams Nikitins, Samuel Freeman and Clare Baily of Ernst & Young became the deed administrators of Kirkalocka on 22 December 2023 after creditors voted in favour of a deed of company arrangement on 8 December 2023 that had been proposed by Blondie Trading Pty Ltd, the ultimate holding company of Kirkalocka.[2] Orders were made on 22 March 2024 in the Federal Court validating the first meeting of creditors, the second meeting of creditors and the 2023 DOCA.[3]
[2] Affidavit of KM Panckhurst sworn 7 August 2025, KMP-25; affidavit of HL White sworn 12 August 2025, HLW‑2. At that time, Blondie Trading Pty Ltd had administrators and receivers and managers appointed.
[3] Affidavit of KM Panckhurst sworn 7 August 2025 par 35, KMP‑26.
On 22 July 2025 the deed administrators issued a circular confirming they had received a proposal to vary the 2023 DOCA. Creditors (among other things) were notified that a meeting would be held on 6 August 2025 to allow them to vote on the proposed variation,[4] which provided for the full extinguishment and release of all 'Claims' (other than any 'Excluded Claims') on 'Effectuation' and provided for the affected creditors having in its place a claim against the 'Trust Fund'.[5] The variation would also establish a 'Creditors' Trust' that would be utilised to settle creditor claims against Kirkalocka so as to facilitate the timely effectuation of the 2023 DOCA (as proposed to be varied).[6] The creditors of Kirkalocka voted in favour of the proposed variation on 6 August 2025.[7]
[4] Affidavit of KM Panckhurst sworn 7 August 2025, KMP-30.
[5] Affidavit of KM Panckhurst sworn 7 August 2025 par 43; see also cl 1.1, cl 12.1 and cl 12.6 of the 2023 DOCA (as varied) 'marked up' with proposed changes in line with order 2 of the originating process, provided by communication to the Court on 13 August 2025.
[6] Affidavit of HL White sworn 12 August 2025, HLW-3; affidavit of KM Panckhurst sworn 7 August 2025, KMP‑30 (page 1742).
[7] Affidavit of KM Panckhurst sworn 7 August 2025 par 42(b).
An 'Acknowledgement and Undertaking' was executed on 7 August 2025 and recorded (among other things) that Kirkalocka, the deed administrators of Kirkalocka and Blondie Trading Pty Ltd (subject to deed of company arrangement) (receivers appointed) (as noted above, the ultimate holding company of Kirkalocka and proponent of the 2023 DOCA), had undertaken not to take steps to effectuate Kirkalocka's 2023 DOCA until certain events occurred, which included the determination of this application by which St Barbara moved that the 2023 DOCA (as was varied on 6 August 2025) be further varied as contemplated by proposed order 2 of the originating process filed on 8 August 2025.
By Tuesday, 12 August 2025 all of the parties to this proceeding were represented by legal practitioners, and that part of the application which required immediate attention was, through conferral, limited to an order pursuant to s 444E of the Corporations Act (proposed order 1 of the originating process), and the application for an order under s 447A of the Corporations Act varying the 2023 DOCA (proposed order 2 of the originating process).
A copy of the 2023 DOCA (as was varied on 6 August 2025) which recorded in 'mark‑up' the further variation proposed by order 2 of the originating process was provided by the first and third defendants' representatives to the Court by email communication on 13 August 2025.[8]
[8] See ts 12 (13 August 2025).
On Wednesday, 13 August 2025 counsel for St Barbara moved for an order pursuant to s 444E of the Corporations Act that it have leave nunc pro tunc to bring and continue with this proceeding against Kirkalocka, and for urgent relief in the following terms:
(1)An order under section 447A of the Corporations Act 2001 (Cth) that Part 5.3A of the Corporations Act is to operate in relation to the first defendant as if the creditors of the first defendant varied the [2023] DOCA, pursuant to the power conferred on them under s 445A of the Corporations Act, by voting in favour of a resolution passed at a meeting of the first defendant's creditors that the [2023] DOCA be varied as follows:
(a)clause 12.3 being deleted and replaced with the following:
12.3(a)On Effectuation each Creditor's Claims against the Deed Company (other than any Excluded Claims and each Royalty Holder's Claims) will be fully extinguished and released.
(b) In relation to the Royalty Holders:
(i)any accrued Claims (i.e. royalties that became due and payable prior to the Appointment Date) of a Royalty Holder will be extinguished and released on Effectuation;
For the avoidance of doubt, subject to clauses 12.3(b)(ii) and 12.3(b)(iii), the extinguishment in this clause does not affect a Royalty Holder's Claims against the Deed Company which arise in the future in connection with the Royalty Agreement (i.e. royalties that became due and payable after the Appointment Date).(ii)if after exhausting all possible appeal rights, a declaration is not made to the effect that a Royalty Holder has a proprietary interest or security interest in respect of the tenements of the Deed Company in connection with that Royalty Holder's Claims, then that Royalty Holder's Claims shall be fully extinguished and released against the Deed Company and that Royalty Holder is to then become a 'Trust Creditor' under the Trust Deed; or
(iii)if, within 2 months of Effectuation, a Royalty Holder does not commence an application for a declaration in a Court with jurisdiction to hear the application that the Royalty Holder has a proprietary interest or security interest in connection with that Royalty Holder's Claims, then that Royalty Holder's Claims against the Deed Company shall be fully extinguished and released and that Royalty Holder is to then become a 'Trust Creditor' under the Trust Deed.
(b)That a new definition be inserted:
'Royalty Holder' means a counterparty to a Royalty Agreement.
'Royalty Agreements' as defined in the 2023 DOCA includes the sale deed entered into between Sons of Gwalia Ltd, Burmine Exploration NL and Equigold NL on 2 November 2001, as amended and assigned from time to time.[9]
[9] Affidavit of KM Panckhurst sworn 7 August 2025, KMP‑25 (page 1625).
In advance of the hearing, two memoranda of proposed consent orders were filed on behalf of St Barbara and the named defendants. The first was filed on 13 August 2025.[10] It contemplated the making by consent an order under s 447A of the Corporations Act in the terms reproduced at [9] of these reasons; an additional order granting to any party affected liberty to apply to set the order aside within seven days of the order being served on that party; and that there be no order as to costs. The second was also filed on 13 August 2025.[11] It contemplated the making by consent of an order under s 444E of the Corporations Act that St Barbara be given leave nunc pro tunc to bring and continue with this proceeding against Kirkalocka; and again that there be no order as to costs. At the hearing, counsel for the parties were heard in support of the making of those orders.
[10] Folio 11 of the Court's record.
[11] Folio 13 of the Court's record.
At the hearing on 13 August 2025 SCL Aus Limited, a royalty holder, sought through counsel leave to appear and was granted the same.[12] SCL Aus Limited's position was that it neither consented to nor opposed the relief sought pursuant to s 447A of the Corporations Act.[13] St Barbara did not oppose counsel's participation in the hearing provided that it was confined to the application made under s 447A of the Corporations Act.[14]
[12] Supreme Court (Corporations) (WA) Rules 2004, r 2.13; ts 2 (13 August 2025).
[13] ts 21 (13 August 2025).
[14] ts 2 (13 August 2025).
After hearing counsel, the relief sought was granted and that part of the originating process by which St Barbara sought declarations was programmed to a later hearing (proposed order 3 of the originating process). At the conclusion of the hearing I indicated that I would publish my reasons. They are set out below.
Evidence
In support of that part of the application pressed on 13 August 2025, counsel for St Barbara read three affidavits,[15] and counsel for Kirkalocka and the deed administrators read one affidavit.[16] Set out below is an overview of the evidence that was before the Court. It is not intended to be a comprehensive description of all of the evidence. Outlines of submissions were also filed in advance of the hearing.[17]
Affidavit of Michelle Leanne Dean
[15] ts 11 (13 August 2025).
[16] ts 15 (13 August 2025).
[17] Plaintiff's outline of submissions filed 11 August 2025; first and third defendants' outline of submissions filed 12 August 2025.
The first affidavit read by counsel for St Barbara was the affidavit sworn by Michelle Leanne Dean on 8 August 2025. Ms Dean is a partner of Corrs Chambers Westgarth, the solicitors representing St Barbara in this proceeding, and has day to day conduct of the matter. Ms Dean attached to her affidavit eight documents marked 'MLD‑1' to 'MLD‑8'.
Among other things, Ms Dean deposed to correspondence with the deed administrators and receivers and managers of Kirkalocka before the originating process was filed, by which the making of a potential application by St Barbara under s 445D of the Corporations Act to set aside the 2023 DOCA was foreshadowed, and an undertaking was sought from the deed administrators and receivers and managers to not effectuate the 2023 DOCA until the foreshadowed application was determined. Ms Dean also deposed to the execution of an 'Acknowledgement and Undertaking' on 7 August 2025, by which the foreshadowed application under s 445D of the Corporations Act was avoided.
The documents attached to Ms Dean's affidavit included a copy of the correspondence between the parties' legal representatives, and the executed 'Acknowledgement and Undertaking'.
The 'Acknowledgement and Undertaking' was executed as a deed by Kirkalocka, the deed administrators of Kirkalocka, Blondie, and St Barbara. The undertaking and acknowledgement provided were in the following terms:[18]
[18] Affidavit of ML Dean sworn 8 August 2025, MLD-8 (pages 42 - 43).
Undertaking
2Kirkalocka, the Deed Administrators, and Blondie undertake that:
a.they will not take steps to effectuate the Kirkalocka DOCA until after the DOCA is varied substantially in accordance with the s 447A Application (either by court order or by creditor resolution);
b.if the court does not make the variations to the Kirkalocka DOCA to the substantive effect as those sought by the s 447A Application the Deed Administrators will convene a meeting of creditors to vote on the variations sought in the s 447A Application; and
c.the DOCA Proponent will procure undertakings from GLAS and the Related Creditors (as those terms are defined in the DOCA) that they will vote in favour of the variations to the DOCA sought in the s 447A Application should a meeting be convened by the Deed Administrators in accordance with paragraph 2b. of this document.
Acknowledgement
3St Barbara covenants not to sue Kirkalocka pending the hearing and determination of the application for declarations in the s 447A Application.
4If after exhausting all possible appeal rights with respect to the application for declarations in the s 447A Application, the declarations being sought in the s 447A Application (or declarations to the same substantive effect) are not made by a Court, then Kirkalocka will be released and discharged from the obligation to pay to St Barbara royalties pursuant to the Sale Deed dated 2 November 2001 between Sons of Gwalia Limited (ACN 008 994 287), Burmine Exploration NL and Equigold NL (ACN 060 235 145), as amended and assigned from time to time and most recently under a deed of assignment and assumption dated 15 June 2018 between Minjar, St Barbara Limited and Kirkalocka, and that it will prove as a Trust Creditor in accordance with the Kirkalocka DOCA (as varied).
I understood the reference to the 'Kirkalocka DOCA' in the extract above to be a reference to the 2023 DOCA (as defined at [3] of these reasons); and to 'GLAS' in par 2(c) of the undertaking to be a reference to Global Loan Agency Services Australia Nominees Pty Ltd, which entity appointed the receivers and managers to Kirkalocka and to Blondie, its ultimate holding company.[19]
[19] Affidavit of ML Dean sworn 8 August 2025, MLD-2.
Ms Dean also deposed that she had on 5 August 2025 caused a search to be conducted on the Commonwealth Courts portal's 'Federal Law Search' function, so as to review the information available relating to a previous proceeding involving the defendants, numbered VID205/2024. Ms Dean attached to her affidavit a screenshot of the Commonwealth Courts portal search result for the proceeding known as In the matter of Kirkalocka Gold SPV Pty Ltd (subject to deed of company arrangement) (receivers and managers appointed) ACN 626 160 816.
Affidavit of Kylie Maree Panckhurst
The second affidavit read by counsel for St Barbara was the affidavit sworn by Kylie Maree Panckhurst on 7 August 2025. Ms Panckhurst has held the role of General Counsel and Company Secretary at St Barbara since 1 October 2023, having joined St Barbara as a principal legal advisor in May 2021. Ms Panckhurst attached to her affidavit 31 documents marked 'KMP‑1' to 'KMP‑31'.
Among other things, Ms Panckhurst described St Barbara as an Australian‑based ASX listed company with gold mining operations in Canada and Papua New Guinea; deposed that on 2 November 2023 Messrs Nikitins and Freeman and Ms Baily were appointed joint and several administrators of Kirkalocka by Global Loan Agency Services Australia Nominees Pty Ltd (GLAS); deposed that on the same day Vaughan Strawbridge, Chris Hill and Hayden White were appointed as joint and several receivers and managers of the secured property of Kirkalocka; deposed that Blondie is the ultimate holding company of Kirkalocka; deposed that on 22 December 2023 the administrators of Kirkalocka became deed administrators pursuant to a vote of creditors at the second meeting of creditors of Kirkalocka; and deposed that on 13 February 2024 the administrators of Blondie became deed administrators pursuant to a vote of creditors at the second meeting of creditors of Blondie.
St Barbara's position with respect to payment of a royalty
As to the circumstances in which St Barbara maintains that it has a right to receive payment of a royalty, Ms Panckhurst deposed that St Barbara holds a right to receive payment of a royalty of up to $20 per ounce of 'Fine Gold in excess of 250,000 ounces won from the Royalty Area or any part of it' (Royalty) pursuant to cl 8 of a sale deed entered into between Sons of Gwalia Ltd, Burmine Exploration NL and Equigold NL on 2 November 2001 (as amended and assigned from time to time) (Sale Deed), having acquired all rights under the Sale Deed by a Sons of Gwalia Gold Assets Sale Agreement dated 21 March 2005 between Sons of Gwalia Ltd (administrators appointed), St Barbara and Andrew Love, Garry Trevor and Darren Weaver (as administrators) (Gold Assets Sale Agreement).
Ms Panckhurst deposed that the Royalty is protected by eight caveats registered by St Barbara on tenements held by Kirkalocka (that is, over E59/2145, E59/2146, E59/2147, E59/1775, M59/233, M59/261, M59/232 and M59/234 (Tenements)).[20]
[20] Affidavit of KM Panckhurst sworn 7 August 2025 par 14.
She further deposed that pursuant to the Sale Deed:[21]
(a)[Sons of Gwalia] and Burmine sold several mining tenements and mining information to Equigold (clause 2(a), Sale Deed);
(b)Equigold agreed to pay a royalty to [Sons of Gwalia] in accordance with clause 8 of the Sales Deed as part of the purchase price (clause 4(c), Sale Deed);
(c)Equigold expressly charged the Tenements and consented to the lodgement of caveats, with the relevant clause of the Sale Deed providing that "[Equigold] hereby charges the Tenements to secure the rights of [Sons of Gwalia] to be paid the Royalty pursuant to this clause 8 and [Equigold] hereby consents to [Sons of Gwalia] lodging at [Sons of Gwalia's] expense, a caveat and this Deed against the Tenements under the Mining Legislation to protect its interests in the Tenements" (clause 8(i), Sale Deed);and
(d)an incoming purchaser of the tenements must sign a covenant agreeing to the royalty obligations in the Sale Deed (clause 8(h), Sale Deed).
[21] Affidavit of KM Panckhurst sworn 7 August 2025 par 15.
She deposed that the Sale Deed also provides an option to purchase a 50% interest in the Tenements (cl 9 of the Sale Deed) or first option to purchase the Tenements if they were to be surrendered by Equigold (cl 10 of the Sale Deed); and that Sons of Gwalia and Equigold also entered into a mortgage in respect of secured obligations relating to the purchase price instalments, which expressly excluded the royalty (Annexure A to the Sale Deed).
To give effect to the sale of the rights under the Gold Assets Sale Agreement, Ms Panckhurst further deposed that the parties entered into a deed of assignment and assumption between Sons of Gwalia, Burmine and St Barbara dated 8 September 2006, whereby Sons of Gwalia and Burmine assigned all Sons of Gwalia's rights, title and interest in and to the Sale Deed arising on and after 28 March 2005 to St Barbara (cl 2 of that deed); and the parties acknowledged that St Barbara would replace Sons of Gwalia and Burmine under the Sale Deed as if St Barbara was an original party to the Sale Deed and was named in the Sale Deed as a party in lieu of Sons of Gwalia and Burmine to the extent of the assigned interests (cl 3 of that deed).
Ms Panckhurst deposed that there were three subsequent deeds of assignment and assumption as to the title to the Tenements, describing the same in the following terms:[22]
(a)a deed of assumption dated 15 April 2008 between St Barbara, Mount Magnet South NL and Equigold, whereby St Barbara (as the royalty holder) consented to Equigold novating the Sale Deed, and Mount Magnet South NL assuming obligations under the Sale Deed (including the royalty arrangement under clause 8); …
(b)a deed of assignment and assumption dated 19 October 2015 between St Barbara, Mount Magnet South NL and Minjar Gold Pty Ltd (Minjar), whereby St Barbara consents to Mount Magnet South NL assigning all of its rights, title and interests under the Sales Deed (as amended) in relation to the mining leases and E59/1775 to Minjar; and …
(c)a deed of assignment and assumption dated 6 March 2018 between St Barbara, Mount Magnet South NL (as Impression Healthcare Ltd) and Minjar, whereby St Barbara consents to Impression Healthcare Ltd assigning all of its rights, title and interests under the Sales Deed (as amended) in relation to E59/2145, E59/2146 and E59/2147 to Minjar.
Incorporation of Kirkalocka and further assignment
[22] Affidavit of KM Panckhurst sworn 7 August 2025 par 19(a) - (c).
As to Kirkalocka, Ms Panckhurst deposed that it was incorporated on 15 May 2018, and that on 15 June 2018, a deed of assignment and assumption was entered into between St Barbara (as the royalty holder), Minjar Gold Pty Ltd and Kirkalocka, whereby St Barbara consented to Minjar assigning, and Kirkalocka assuming, all of Minjar's rights, title, interest and obligations under the Sale Deed (as amended) in relation to all of the Tenements.
2021 voluntary administration of Kirkalocka and subsequent DOCA
Ms Panckhurst deposed that Kirkalocka had between 1 May 2021 and 23 July 2021 been in voluntary administration when Jeremy Nipps and Barry Wight of Cor Cordis were appointed as voluntary administrators; on 23 July 2021 Messrs Nipps and Wight became the deed administrators of Kirkalocka; and on 27 July 2021 the deed of company arrangement (2021 DOCA) effectuated and the deed administrators became trustees of a creditors' trust.
Among other things, Ms Panckhurst deposed that St Barbara did not attend the second meeting of creditors of Kirkalocka and did not vote at that meeting. She further deposed St Barbara lodged a proof of debt in the amount of $546,218.23 in the creditors' trust for outstanding royalty payments and estimated royalty payments for the June and September quarters of 2021 pursuant to the Sale Deed; that on 7 February 2022 the trustee of the creditors' trust wrote to St Barbara to confirm payment of a first dividend as unsecured creditors in the amount of $248,319.73; and that St Barbara had only received one dividend payment in the amount of $2,717.86 on 10 February 2022.
2023 voluntary administration of Kirkalocka and subsequent DOCA
Ms Panckhurst deposed that on 6 November 2023 Messrs Nikitins and Freeman and Ms Baily as administrators of Kirkalocka had issued their report to creditors ahead of the second meeting of creditors, which disclosed that the secured creditor, GLAS, had submitted a proof of debt for $399 million. Ms Panckhurst deposed that on 22 December 2023 the administrators became deed administrators of Kirkalocka following the creditors of Kirkalocka voting in favour of a deed of company arrangement (that is, the 2023 DOCA).
She further deposed that the 2023 DOCA was proposed by the receivers of Blondie (who were also the receivers of Kirkalocka) at a creditors meeting held on 8 December 2023; and that upon the application of the deed administrators to the Federal Court, orders were made on 22 March 2024 validating the first meeting of creditors, second meeting of creditors, and the 2023 DOCA pursuant to s 1322(4)(a) of the Corporations Act (in a proceeding numbered VID205/2024). Ms Panckhurst noted that this had occurred despite the deed administrators not having provided prior notice of those events to St Barbara and other royalty holders.
Ms Panckhurst deposed that St Barbara had not lodged a proof of debt in the 2023 administration or deed administration of Kirkalocka, and did not attend or vote at the second meeting of creditors. I however understood from Ms Panckhurst's affidavit that St Barbara considered the total amount outstanding and owed to it to be $929,725.38 (minus the $2,717.86 dividend it received on 10 February 2022).[23]
Communications with the receivers and managers
[23] Affidavit of KM Panckhurst sworn 7 August 2025 pars 31 - 32.
Ms Panckhurst deposed that on 21 November 2023 Messrs Strawbridge, Hill and White (as joint and several receivers and managers of the secured property of Kirkalocka) advised St Barbara by letter that they did not intend to cause Kirkalocka to perform its obligations under the Sale Deed (which they said was 'hereby repudiated and terminated'),[24] and confirmed they did not intend to exercise any rights in respect of the Sale Deed or any associated agreements, contracts, deeds or other arrangements. She further deposed that St Barbara's previous solicitor, DLA Piper, had exchanged correspondence with the receivers and their lawyers in June 2024; and on 21 June 2024 a letter was sent on behalf of St Barbara to the solicitors of Messrs Strawbridge, Hill and White (as joint and several receivers and managers of the secured property of Kirkalocka), among other things, rejecting the repudiation, electing to affirm the Sale Deed and asserting St Barbara's proprietary and security interests in the Tenements.
Variation to the 2023 DOCA
[24] Affidavit of KM Panckhurst sworn 7 August 2025 par 37, KMP‑28.
Ms Panckhurst deposed that on 22 July 2025 the deed administrators issued a circular confirming they had received a proposal to vary the 2023 DOCA from the receivers of Blondie; and that on 1 August 2025 St Barbara's solicitor had issued letters to the deed administrators' solicitor, the receivers and managers of Kirkalocka,[25] and the receivers and managers of Blondie, among other things seeking an undertaking that they would not effectuate the 2023 DOCA pending determination of an application foreshadowed to be issued by St Barbara.
[25] As deposed to in par 8 of KM Panckhurst's affidavit sworn 7 August 2025, Messrs Strawbridge, Hill and White of FTI Consulting were appointed as joint and several receivers and managers of the secured property of Kirkalocka.
She deposed that the circular issued by the deed administrators on 22 July 2025, among other things:
(a)informed creditors that the receivers of Blondie had waived a number of conditions precedent to a distribution being made under the 2023 DOCA, which included the condition that the receivers of Kirkalocka and the receivers of Blondie as 'DOCA Proponent' repudiate each of the 'Royalty Agreements' (which includes the royalty under the Sale Deed) and procure the removal of each caveat from the relevant mining tenements;
(b)informed creditors that there was an ongoing proceeding in the Federal Court in relation to a claim made by SCL Aus Limited regarding the existence of an alleged proprietary interest pursuant to a royalty deed (dated 21 December 2019 and amended on 31 December 2019) which was one of the 'Royalty Agreements' for the purpose of the above condition precedent; and
(c)proposed to vary the 2023 DOCA so as to create a creditors' trust to enable the 'imminent effectuation of the DOCA'.
Ms Panckhurst deposed that on 1 August 2025 St Barbara's legal representatives wrote to the representatives of the deed administrators and the receivers and managers, recording St Barbara's position in respect of the Sale Deed; that the 2023 DOCA was unfairly prejudicial to St Barbara; that St Barbara considered that it had good grounds to set aside the 2023 DOCA under s 445D of the Corporations Act; and requesting an undertaking from the deed administrators and receivers and managers that they would not effectuate the 2023 DOCA unless and until St Barbara's application under s 445D was determined, alternatively that the proponent of the 2023 DOCA propose a variation to the 2023 DOCA so as to provide that St Barbara's claims are excluded claims under the 2023 DOCA.
She further deposed to being told by Eimear McNamara of Corrs Chambers Westgarth (which firm now acts for St Barbara) that Ms McNamara had observed that the creditors of Kirkalocka had voted in favour of the proposed variation to the 2023 DOCA on 6 August 2025 at the creditors' meeting of Kirkalocka; and that the 2023 DOCA (as was then further varied) provided for the full extinguishment and release of all claims (other than any 'Excluded Claims') on effectuation and those creditors having in its place a claim against the 'Trust Fund'.
As to the prejudice to St Barbara upon effectuation of the 2023 DOCA (as further varied), Ms Panckhurst deposed that she anticipated that all claims St Barbara has to a royalty under the terms of the Sale Deed should Kirkalocka resume mining operations in the future would be extinguished; that St Barbara will be left with a claim as creditor against the 'Trust Fund', which is comprised of $550,000 (net of the administrators' and deed administrators' liabilities and the trustees' remuneration and costs); and that the debts which are owed or which may be owing in the future to GLAS and to Kirkalocka's secured lender, APAC Green Pte Ltd, will be preserved against Kirkalocka.
The documents annexed to Ms Panckhurst's affidavit included a copy of current and historical extracts obtained from the Australian Securities Investment Commission (ASIC) for St Barbara, Kirkalocka, and Blondie; a copy of the notices lodged with ASIC with respect to the appointments of receivers and managers, administrators, and deed administrators; a copy of the Sale Deed and the Gold Assets Sale Agreement; a copy of the various deeds of assignment and assumption; a copy of the reports to creditors; a copy of the proof of debt lodged by St Barbara in November 2021; a copy of the minutes from the second meeting of creditors held on 6 July 2021, and from the second meeting of creditors held on 8 December 2023; a copy of the deeds of company arrangement dated 23 July 2021 and 22 December 2023 (the 2021 DOCA and the 2023 DOCA respectively); a copy of the order of the Federal Court dated 22 March 2024 in VID205/2024; and a copy of the correspondence relating to St Barbara's entitlement to royalty, and relating to the stated intention of the receivers and managers with respect to Kirkalocka's obligations under the Sale Deed.
Affidavit of Eimear McNamara
The third affidavit read by counsel in support of the application was that made by Ms McNamara, sworn on 11 August 2025. Ms McNamara is a senior associate of Corrs Chambers Westgarth, and she attached to her affidavit six documents marked 'EM‑1' to 'EM‑6'.
Ms McNamara deposed to providing sealed Court documents and notification of the Court hearing to creditors and to SCL Aus Limited. The documents annexed to Ms McNamara's affidavit included a copy of those communications.
Affidavit of Hayden Leigh White
Mr White swore an affidavit on behalf of the first and third defendants on 12 August 2025. Mr White is a senior managing director of FTI Consulting, a chartered accountant and a registered liquidator. He was appointed, together with Messrs Hill and Strawbridge, as a joint and several receiver and manager of Kirkalocka on 2 November 2023. He annexed to his affidavit eight documents marked 'HLW‑1' to 'HLW‑8'.
Mr White deposed that on 2 November 2023 Messrs Nikitins and Freeman and Ms Baily of Ernst & Young were appointed as joint and several administrators of Kirkalocka; and that by the deed of company arrangement that was executed on 22 December 2023 (the 2023 DOCA), they were appointed as deed administrators of Kirkalocka.
Mr White deposed that Kirkalocka holds various mining tenements which comprise the 'Kirkalocka Project', which includes a gold mine located in Mount Magnet in Western Australia that was placed into care and maintenance in or around April 2022.
Among other things, he deposed that:
(a)the gold mine's care and maintenance costs had averaged $190,250 per month in the six months to 30 June 2025;
(b)the costs of the receivers and managers over the preceding six months had been $356,000, representing an average of $59,333.33 per month;
(c)interest was accruing on the parent loan facility in favour of APAC Green in the amount of $2,619,820.96 per month; and
(d)upon completion of the 2023 DOCA, all shares in Kirkalocka would be sold to Gylden Resources Pty Ltd, a subsidiary of APAC Green, and in turn Gylden Resources will facilitate the provision of toll treatment arrangements to unrelated third parties by Kirkalocka, which may result in approximately $160 million in revenue per annum, until the gold mine can be taken out of care and maintenance.
On 8 August 2025 Mr White caused Lavan to send on behalf of the receivers and managers a letter to the solicitors for St Barbara, the purpose of which was to further identify the reasons why the receivers and managers maintained that the 2023 DOCA (as amended) had to be effectuated as soon as possible; and set out the losses which would continue to accrue as a result of any ongoing delay to the 2023 DOCA's effectuation.[26] The letter was provided in support of the s 447A application then foreshadowed to be made by St Barbara as recorded in the Acknowledgement and Undertaking executed on 7 August 2025, namely, to give immediate effect to a further variation of the 2023 DOCA which would allow the deed administrators to effectuate the 2023 DOCA imminently, without prejudice to St Barbara's ability to seek certain declarations in respect of its alleged royalty rights.[27]
[26] Affidavit of HL White sworn 12 August 2025, HLW-4.
[27] Affidavit of HL White sworn 12 August 2025, HLW-4 (page 54).
Mr White further deposed to correspondence with creditors including APAC Green (a secured creditor of Kirkalocka), Rivet Mining Services Pty Ltd (a related party creditor to which Mr White had also been appointed a joint and several receiver and manager), Adaman Gold Hold Co Pty Ltd and Adaman Gold Pty Ltd (also related party creditors of Kirkalocka). The correspondence reveals that APAC Green was supportive of the making of the second proposed order of the originating process and the proposed further variations to the 2023 DOCA;[28] that Rivet Mining Services did not object to the proposed further variations to the 2023 DOCA;[29] that Adaman Gold Hold Co did not object to the proposed further variations to the 2023 DOCA;[30] and that Adaman Gold did not object to the proposed further variations to the 2023 DOCA.[31]
[28] Affidavit of HL White sworn 12 August 2025, HLW-5.
[29] Affidavit of HL White sworn 12 August 2025, HLW-6.
[30] Affidavit of HL White sworn 12 August 2025, HLW-7.
[31] Affidavit of HL White sworn 12 August 2025, HLW-8.
The documents annexed to Mr White's affidavit included a copy of the company search of Kirkalocka; a copy of the 2023 DOCA; a copy of the minutes from the meeting of creditors of Kirkalocka dated 6 August 2025; a copy of the correspondence which recorded the position of various creditors with respect to the proposed variation of the 2023 DOCA; and a copy of the correspondence sent on behalf of the joint and several receivers and managers of Kirkalocka to St Barbara's legal representatives on 8 August 2025 identifying why the receivers and managers maintained that the 2023 DOCA had to be effectuated as soon as possible and describing the losses that would continue to accrue as a result of any delay to effectuation.
Applicable principles
Relief was sought pursuant to s 447A of the Corporations Act, which empowers the Court to make such orders as it thinks appropriate about how pt 5.3A is to operate in relation to a particular company. Section 447A gives the Court broad powers, including the power to alter what would otherwise be the operation of pt 5.3A in relation to a particular company.[32]
[32] Brash Holdings Ltd (Administrator Appointed) v Katile Pty Ltd [1996] 1 VR 24, 26 ‑ 27; Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270; Re Bosnjak Holdings Pty Ltd (2005) 53 ACSR 8 [9].
Courts have interpreted s 447A as a provision conferring upon them an extremely wide jurisdiction to make any order considered appropriate for the operation of the regime. In this regard, Austin J in Deputy Commissioner of Taxation v Portinex Pty Ltd (2000) 156 FLR 453 at [30] noted that the proper interpretation of s 447A was in issue in Australasian Memory Pty Ltd v Brien, and that twelve propositions emerge from the cases, which relevantly include the following:
(a)the power is not to be read down or confined to curing defects or remedying consequences of departures from other provisions of pt 5.3A;
(b)the section permits the Court to make orders with respect to a particular provision of pt 5.3A, altering the operation of that provision, even where the provision would on its separate construction exclude such an order;
(c)the section is not confined to filling in the gaps in the legislative scheme of pt 5.3A;
(d)the section does not empower the Court to make a declaration as to how pt 5.3A does operate, only how it is to operate; and
(e)by empowering the Court to make orders about 'how this Part is to operate', the section looks to the future rather than the past, but the temporal requirement is satisfied if the orders have effect from the time of their making. That is, it is possible for the Court to make an order with future effect in respect of past matters or events.
While I accepted that the power is broad, I also proceeded on the basis that the power was not unlimited.[33] It is well established that the power vested in a court by s 447A is a statutory power which may be exercised only for the purpose for which it was granted.[34] As was noted by Brereton J in Honest Remark Pty Ltd v Allstate Explorations NL at [66], in reliance on Re New Tel Ltd (in liq) at [7], 'an order under s 447A must have a nexus with how pt 5.3A is to operate in relation to a particular company'. Further, Barrett JA in Correa v Whittingham at [4] observed:
The 'nexus' with the operation of Pt 5.3A to which reference is made in the decided cases must be understood accordingly. The relevant purpose is to be ascertained by reference to the language of the statute, its subject matter and objects and the consequences of a decision that the power has been exceeded: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. The principal source of constraint and limitation upon the power is therefore the statement of the object of Pt 5.3A in s 435A, coupled with the nature, incidents and aims of the particular form of external administration as gathered from the provisions of Pt 5.3A as a whole.
[33] Correa v Whittingham (2013) 278 FLR 310 [2] ‑ [8], [97] ‑ [105], [304], citing Honest Remark Pty Ltd v Allstate Explorations NL (2006) 234 ALR 765 and Re New Tel Ltd (in liq) (2004) 210 ALR 270.
[34] R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170, cited in Correa v Whittingham [4].
I accepted that any order granted pursuant to s 447A must be designed to achieve in relation to a particular company the objects of pt 5.3A as stated in s 435A of the Corporations Act.[35]
[35] Australasian Memory Pty Ltd v Brien; Re Greg Sewell Forgings Pty Ltd (1995) 17 ACSR 602; Correa v Whittingham [4]; Ansett Australia Ground Staff Superannuation Plan Pty Ltd (ACN 065 590 178) (as trustee of the Ansett Australia Ground Staff Superannuation Plan) v Ansett Australia Ltd (ACN 004 209 410) (subject to a deed of company arrangement) (2004) 49 ACSR 1 [55] ‑ [60].
As to the proposed further variation of the 2023 DOCA, there is no doubt that the Court has power to order a variation.[36] As was observed by French J in Re Euco Ltd (ACN 102 448 055) (in liq); Forrest Nursery Pty Ltd (ACN 081 654 346) v Lopez And Verge As Joint And Several Liquidators Of Euco Ltd (ACN 102 448 055) (in liq) at [41]:
The power of the court to make such an order was considered by Finkelstein J in Re Pasminco Ltd (No 2) (2004) 49 ACSR 470; [2004] FCA 656. In that case his Honour said (at [35]):
[35] … The Corporations Act contemplates that a deed of company arrangement may be varied by creditors at a meeting convened under s 445F. The administrators, however, wish to shortcut this procedure and have the deed varied by an order made under s 447A. In Milankov Nominees Pty Ltd v Roycol Ltd (1994) 52 FCR 378 at 383; 124 ALR 391 at 397; 14 ACSR 296 at 301, Lee J suggested that this could be done. In two decisions in the following year Branson J expressly found the power to exist. The decisions are: Re GIGA Investments Pty Ltd (admin apptd) (No 2) (1995) 17 ACSR 547; (1995) 13 ACLC 1185 at 1187 and Mulvaney v Rob Wintulich Pty Ltd (1995) 60 FCR 81 at 83; 18 ACSR 384 at 386. Many cases have followed these decisions.
[36] Re Euco Ltd (ACN 102 448 055) (in liq); Forrest Nursery Pty Ltd (ACN 081 654 346) v Lopez And Verge As Joint And Several Liquidators Of Euco Ltd (ACN 102 448 055) (in liq) (2006) 233 ALR 442 [41].
It is well established that s 447A empowers the Court to make orders amending, varying or rectifying a deed of company arrangement, and that the section can be used to make an order with future effect in respect of past matters or events.[37]
[37] Travis Royce Smith as trustee of the Smith Investment Trust v Sandalwood Properties Ltd [2019] WASC 109 [72]; Re Derwent Howard Media Pty Limited [2011] NSWSC 1164 [11]; Duggan, in the matter of Conomi Group Pty Limited (Subject to Deed of Company Arrangement) [2023] FCA 998 [47].
I adopt the observations made by Halley J in Diakos v Pacific Steel Constructions Pty Ltd (subject to deed of company arrangement) (ACN 100 940 145) (2022) 160 ACSR 561, and adopted by Goodman J in Diakos v Pacific Steel Constructions Pty Ltd, in the matter of Pacific Steel Constructions Pty Ltd (No 2) [2022] FCA 759:
More specifically for present purposes, the Court has power under s 447A to vary a deed of company arrangement. As Barrett J (as his Honour then was) observed in In the matter of Derwent Howard Media Pty Ltd [2011] NSWSC 1164:
11Ordinarily, any variation of a deed of company arrangement should be by resolution of creditors under s 445A. But it is, I think, sufficiently established that the court's power under s 447A enables it, in an appropriate case, to vary a deed of company arrangement or, more accurately, to cause Part 5.3A to operate in relation to the subject company as if some provision of the deed were varied: see, for example, Mulvaney v Rob Wintulich Pty Ltd (1995) 18 ACSR 384; Re Pasminco Ltd [2003] FCA 265; (2003) 45 ACSR 1; Brandrill Pty Ltd v Newmont Yandal Operations Pty Ltd.
12Generally speaking, however, the court should be reluctant to exercise this power (and thereby to deprive creditors of their role under s 445A) except in circumstances that are uncontentious, in the sense that no prejudice to creditors is involved: Re Paradox Digital Pty Ltd; Ex parte Smith [2001] WASC 182. …
(See also Kipoi Holdings Mauritius Ltd v Kirman and Bauer as joint and several administrators of Tiger Resources Ltd (Subject to Deed of Company Arrangement) [2021] WASCA 194 at [50] and the cases there cited.)[38]
[38] The cases there cited include Complete Hire and Sales Pty Ltd (ACN 090 519 823) v Terra Firma Constructions Pty Ltd(ACN 605 319 426) [2018] WASCA 88 [4] ‑ [9]; Jebb as trustee for Trafalga West Investments Trust v Superior Lawns Australia Pty Ltd [2018] WASCA 123 [58] ‑ [68]; Barboutis v The Kart Centre Pty Ltd [2019] WASCA 184 [10].
Further, as noted in Longley (deed administrator), in the matter of Dixon Advisory & Superannuation Services Pty Ltd (subject to deed of company arrangement) [2024] FCA 70, while the Court should be reluctant to exercise its power under s 447A to vary a deed of company arrangement and thereby deprive the creditors of their role under s 445A, it may be justified in doing so where no prejudice to creditors is involved. In that context the Court needs to consider the effect on creditors and the practical commercial consequences of what would happen if the variation of the DOCA was not made.[39]
[39] Longley (deed administrator), in the matter of Dixon Advisory & Superannuation Services Pty Ltd (subject to deed of company arrangement) [51].
I also had regard to Master Sanderson's approach and observations in Re Alita Resources Ltd; Ex parte Richard Scott Tucker as joint and several administrators of Alita Resources Ltd (subject to deed of company arrangement) [2020] WASC 430:
[30]It is not difficult to see why this approach should be adopted. Part 5.3A of the Corporations Act (within which both sections 445A and 447A appear) is headed 'Administration of a Company's Affairs with a view to executing a Deed of Company Arrangement'. What is striking about this part of the Act is the way in which it is creditor driven. The administrators act as facilitators of any arrangement which must be approved by the creditors. The legislature could have required court approval before any DOCA was effected. But it did not do so. It left matters in the hands of the creditors so they and they alone could determine whether it was possible to salvage the company's business. That being so, there is an understandable reluctance on the part of judges to override or sideline creditors by making orders under s 447A. Far better for the creditors themselves to vary the DOCA under s 445A.
[31]But, there are circumstances when for one reason or another, court orders are appropriate. For instance, in Re Paradox Digital Pty Ltd; Ex Parte Smith, Owen J said:
The next question is whether the discretion should be exercised in that way. In my view, it should. In Mulvaney, there was no effect on the creditors. That is not the case here. There will be an effect on creditors because the return which was estimated for creditors was based on receipts of approximately $1,000,000. This will now be reduced to $700,000. Nonetheless, I accept that the prudent and appropriate course for the administrators to take if the undertaking cannot be sold would be to close the doors. I accept also the commercial reality that this would destroy the goodwill of the company and therefore, to a significant extent, the realisable value of the assets. It would not be feasible to convene a meeting of the creditors of the company to consider the variation.
[32]It is clear his Honour regarded two matters as of prime importance. First, commercial reality. If he declined to make orders then creditors would suffer and there would be no net benefit. Second, there was a question of timing. There simply was not time to convene a meeting of creditors to vary the DOCA in the way proposed.
[33]Both factors were present in this case. Without a variation to the DOCA there was a real prospect CHEL would appoint receivers. What might then follow from that appointment is unclear. But, it is difficult to see that anyone - the Class C Creditors included - would be better off. Experience suggests otherwise. Furthermore, given the prospect of imminent action by CHEL there was no real prospect of delaying any amendment to the DOCA pending a meeting of creditors.
[34]The outcome of this application is by no means perfect. I have already mentioned the uncertain position created by the retention of over 5,000 shareholders as against one single shareholder who would be responsible for the company. It is less than ideal that a company should emerge from a DOCA in default under finance agreements. There are presently no directors and who those directors might be and what their intentions are with respect to the company is unknown. But, variation of the DOCA still, on balance, is a better option than allowing the company to fall into receivership with all the uncertainty that would involve.
As was observed on behalf of St Barbara, the authorities show that s 447A can be employed to alter a deed of company arrangement to prevent debts being released, to protect contractual parties who might otherwise be limited in their rights, and to give effect to terms of a settlement agreement.[40]
[40] Plaintiff's outline of submissions filed 11 August 2025 par 24, citing Winterton Constructions Pty Ltd v MA Coleman Joinery Co Pty Ltd (1996) 20 ACSR 671; Travis Royce Smith as trustee of the Smith Investment Trust v Sandalwood Properties Ltd [176] ‑ [177]; and Longley (deed administrator), in the matter of Dixon Advisory & Superannuation Services Pty Ltd (subject to deed of company arrangement).
Disposition
Leave under s 444E
St Barbara sought leave of the Court to bring and continue this proceeding as against Kirkalocka.[41] Counsel for St Barbara identified the following as the principles relevant to the exercise of the Court's discretion to grant leave under s 444E:[42]
(a)whether the plaintiff's claim has a solid foundation and gives rise to a serious dispute;
(b)whether the proceeding has progressed to an advanced stage;
(c)whether the plaintiff was involved in the administrators' appointment;
(d)whether the plaintiff would suffer disadvantage if leave is refused;
(e)whether the defendant is insured against the alleged liability that is the subject of the proceeding;
(f)whether, if leave is granted, the deed administrators will be unreasonably distracted from performance of their statutory duties or obliged unnecessarily to incur substantial legal costs; and
(g)whether, in the circumstances, there are good reasons for allowing the plaintiff to continue the proceeding even if the deed administrators do not provide consent.
[41] Corporations Act, s 444E, proposed order 1 of the originating process.
[42] Plaintiff's outline of submissions filed 11 August 2025 par 40, citing Barlow v Trinity Mining Services and Supplies Pty Ltd (in administration) [2025] WASC 186 [16] ‑ [19]; Mehan v Arrium Ltd (formerly Onesteel Ltd) [2016] NSWSC 1680 [12].
I considered it appropriate to grant leave, having weighed the following in the balance:[43]
(a)the deed administrators consented to St Barbara being given leave nunc pro tunc to bring and continue the proceeding as against Kirkalocka;
(b)in the circumstances deposed to, I was satisfied that the deed administrators would not be unreasonably distracted from performance of their statutory duties or unnecessarily obliged to incur substantial legal costs as I understood that the proceeding was commenced with a view to ensuring that the 2023 DOCA could be effectuated shortly after further amendment;
(c)St Barbara's contention that it would suffer disadvantage if leave was refused as the proceeding was commenced (and is required) to adjudicate whether St Barbara has (as it alleges) proprietary rights that survive the 2023 DOCA;
(d)on the evidence before the Court it appeared that St Barbara's claim gave rise to a serious dispute (albeit that while Kirkalocka agrees that the Sale Deed created royalty rights in respect of certain mining tenements, it disputes the nature, characterisation and effect of those rights);[44] and
(e)there appeared to be no prejudice to any other defendant by the grant of leave (indeed, all parties to the proceeding consented to the same).[45]
Power and standing - relief under s 447A
[43] See the plaintiff's outline of submissions filed 11 August 2025 par 41.
[44] First and third defendants' outline of submissions filed 12 August 2025 par 7.
[45] Folio 13 of the Court's record.
As noted above, I was satisfied that s 447A of the Corporations Act gives the Court the power to vary a deed of company arrangement. I was also satisfied that St Barbara had standing to apply for relief under s 447A as a creditor of Kirkalocka: s 447A(4)(b) of the Corporations Act.
Discretion - relief under s 447A
In determining that it was appropriate to grant relief pursuant to s 447A of the Corporations Act, I weighed the following matters in the balance.
First, I understood that St Barbara had served this application on all unsecured creditors of Kirkalocka which it was aware,[46] and that the seven creditors in attendance at the creditors' meeting on 6 August 2025 had been served with a copy of St Barbara's application.[47] No creditor sought to be heard in opposition to the relief pressed on 13 August 2025.
[46] Plaintiff's outline of submissions filed 11 August 2025 par 29; affidavit of E McNamara, EM-1, EM-3 (page 7).
[47] First and third defendants' outline of submissions filed 12 August 2025 par 31.
Secondly, there appeared to be no prejudice to other creditors by the variation sought. St Barbara's accrued claims would continue to be extinguished under the proposed further variation to 2023 DOCA. Further, it was submitted and I accepted that there would be no prejudice to the unsecured creditors in terms of payment of dividends.[48] As was noted on behalf of Kirkalocka and the receivers and managers, the conditionality of the extinguishment of other claims relates only to those which arise in the future (or after the appointment date). Those future claims do not impact the Trust Deed.[49] The position of unsecured creditors was not otherwise to be impacted and the position of the 'Secured Creditor' and the 'Related Party Creditors' would be maintained. The only two creditors who may be affected by the order were St Barbara and SCL Lowy (and SCL Lowy had been served with the originating process).[50]
[48] See ts 19 - 21 (13 August 2025).
[49] First and third defendants' outline of submissions filed 12 August 2025 par 23.
[50] Affidavit of E McNamara sworn 11 August 2025 pars 6(b), 9(a), EM‑2, EM‑4.
Thirdly, I took comfort in the submissions made by counsel for Kirkalocka and the receivers and managers that there was no reason why the proposed variation, if put to creditors at a creditors' meeting, would not pass.[51]
[51] ts 16 - 17 (13 August 2025).
Fourthly, there was good reason for the 2023 DOCA to be effectuated as soon as possible and Kirkalocka would suffer prejudice if the s 447A order was not made. I understood that any delay in effectuating the 2023 DOCA would delay the completion of the sale of Kirkalocka's shares to Gylden Resources, thereby delaying the potential generation of substantial revenue for Kirkalocka. Further and significantly, Kirkalocka continued to accrue approximately $2,869,404.29 each month in costs. The making of orders 10 days earlier than the earliest possible date for a creditors' meeting was still of significant commercial benefit to Kirkalocka. I accepted that the relief sought would promote the objects of pt 5.3A as stated in s 435A of the Corporations Act.
Had agreement not been reached (as recorded in the 'Acknowledgement and Undertaking') I also understood that St Barbara would have otherwise brought a s 445D application and sought an interlocutory injunction. I accept that had the injunction been granted, the effectuation of the 2023 DOCA would have been arrested pending determination of that application, placing a greater commercial strain on the parties.[52]
[52] See ts 7 (13 August 2025).
Fifthly, I was cognisant that the proposed variation could be made by resolution of the creditors, and that there is a reluctance to override or sideline creditors by making orders under s 447A of the Corporations Act. There is a preference for the creditors to vary the deed of company arrangement themselves should they wish. However, upon being satisfied that there would be no prejudice to the creditors, I found the making of proposed order 2 of the originating process to be appropriate here. The alternative was that a meeting of the creditors was to be convened (25 August 2025 being the earliest possible date due to notice requirements),[53] and the practical commercial consequence was that significant costs would in the interim have accrued.
[53] ts 8 (13 August 2025).
Finally, I found comfort in that the deed administrators, the receivers and managers, Blondie (the 2023 DOCA proponent), the 'Related Party Creditors' (Rivet Mining Services Pty Ltd, Adaman Gold Hold Co Pty Ltd and Adaman Gold Pty Ltd) and the 'Secured Creditor' (APAC Green Pte Ltd) consented to, or had notice of the application, and did not oppose the proposed further variation to 2023 DOCA.
Conclusion and orders
On 14 August 2025 orders in terms of proposed orders 1 and 2 of the originating process were made, which orders are reproduced at sch A to these reasons. Programming orders were also made pertaining to the application for declarations as set out at proposed order 3 of the originating process, which orders are reproduced at sch B to these reasons. As was requested by the parties no order was made with respect to costs.
Sch A - Orders made on 14 August 2025
Sch B - Programming orders made on 13 August 2025
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KO
Associate to the Honourable Justice Strk
23 OCTOBER 2025
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