Reasons for Judgment JDavies

FEDERAL COURT OF AUSTRALIA

Mentha, in the matter of Arrium Limited (administrators appointed)

[2016] FCA 972

File number: VID 792 of 2016 Judge: DAVIES J Date of judgment: 17 August 2016 Catchwords: BANKRUPTCY AND INSOLVENCY – administration –

application for directions about matters arising in connection with administrators’ functions and powers –general power of the court to make orders – administrators’ liability and indemnity for debts of administration –whether vesting of PPSA security interest if collateral not registered within time – extension of time for registration Corporations Act 2001 (Cth) ss 443A, 447A, 447D, 588FL, 588FM

Legislation: Corporations Act 2001 (Cth) ss 443A, 447A, 447D, 588FL,

588FM Cases cited: Re Ansett Australia Limited (2001) 39 ACSR 355 Re Ansett Australia Limited (No. 3) (2002) 115 FCR 409 Re Mentha (in their capacities as joint and several

administrators of the Griffin Coal Mining Company Pty Ltd (administrators appointed) (ACN 008 667 285) and Another (2010) 82 ACSR 142

Re Nexus Energy Limited [2014] NSWSC 1041 Date of hearing: 22 July 2016 Registry: Victoria Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 29 Solicitors for the Plaintiffs: L Zwier and B Mahoney, Arnold Bloch Leibler

Solicitors for 23 Lender Banks:

C Moore, King & Wood Mallesons

Solicitors for Export Finance and Insurance Corporation:

K Smith, Ashurst

ORDERS

VID 792/2016

IN THE MATTER OF ARRIUM LIMITED (ADMINISTRATORS APPOINTED) ACN 004 410 33 (AND EACH OF THE COMPANIES LISTED IN SCHEDULE ONE)

BETWEEN: MARK FRANCIS XAVIER MENTHA, CASSANDRA ELYSIUM MATHEWS, MARTIN MADDEN AND BRYAN WEBSTER IN THEIR CAPACITIES AS JOINT AND SEVERAL ADMINISTRATORS OF ARRIUM LIMITED (ADMINISTRATORS APPOINTED) ACN 004 410 833 (AND EACH OF THE COMPANIES LISTED IN SCHEDULE ONE) First Plaintiffs ARRIUM LIMITED (ADMINISTRATORS APPOINTED) ACN 004 410 833 (AND EACH OF THE COMPANIES LISTED IN SCHEDULE ONE) Second Plaintiffs

JUDGE: DAVIES J DATE OF ORDER: 22 JULY 2016 THE COURT ORDERS THAT: 1. Pursuant to section 447A(1) of the Corporations Act 2001 (Cth) (the Act), Part 5.3A

of the Act is to operate in relation to each of the Second Plaintiffs as if

section 443A(1) of the Act reads, in respect of each of the Second Plaintiffs, as

follows:

“(1) [Where administrator liable for debts] The administrator of a company under administration is liable for debts her or she incurs, in the performance or exercise, or purported performance or exercise, of any of his or her functions and powers as administrator, for:

(a) services rendered; or

(b) goods bought; or

(c) property hired, leased, used or occupied, including property consisting of goods that is subject to a lease that gives rise to a PPSA security interest in the goods; or

(d) the repayment of money borrowed; or

(e) interest in respect of money borrowed; or

(f) borrowing costs,

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except for any debts he or she incurs arising out of or in connection with an agreement to be entered into between OneSteel Manufacturing Pty Ltd (Administrators Appointed) and CDE Global Limited for the design, supply, install, assembly, construct and commissioning of low grade iron ore processing equipment in Whyalla, South Australia, but not including the EFIC Loan described in Order 2.

2. Pursuant to section 447A(1) of the Act, Part 5.3A of the Act is to operate in relation to

each of the Second Plaintiffs so that any personal liability of the First Plaintiffs

pursuant to section 443A of the Act arising out of or in connection with a loan and

security agreement (EFIC Loan) to be entered into between:

(a) OneSteel Manufacturing Pty Ltd (Administrators Appointed), Central Iron Pty

Ltd (Administrators Appointed), Southern Iron Pty Ltd (Administrators

Appointed), Arrium Iron Ore Holdings Pty Ltd (Administrators Appointed)

and Coober Pedy Resources Pty Ltd (Administrators Appointed) (the

OneWhyalla Mining Entities); and

(b) Export Finance and Insurance Corporation;

on substantially the same terms as the term sheet at Annexure A hereto (EFIC Term

Sheet), will be limited to an amount equal to the proceeds of sale of the Secured

Property as referred to in the EFIC Term Sheet.

3. Pursuant to section 588FM of the Act, in respect of any security interests granted by

any of the OneWhyalla Mining Entities in collateral in favour of Export Finance and

Insurance Corporation (or its nominee) in connection with the EFIC Loan, the

registration time for the collateral is, for the purposes of section 588FL(2)(b)(iv) of

the Act, fixed to be the time that is the end of 20 business days after the security

agreement that gave rise to the security interest came into force.

4. Pursuant to section 37AF of the Federal Court of Australia Act 1976 (Cth) and subject

to any further order made on the application of a person interested in the proceeding,

the following documents be marked “confidential”, be placed in a sealed envelope on

the Court file and are not to be published or accessed except pursuant to an order of

the Court:

(a) Tab 6 of Exhibit “SDHL-1” to the Affidavit of Scott David Harry Langdon

affirmed 21 July 2016 (Langdon Affidavit);

(b) Tab 7 of Exhibit “SDHL-1” to the Langdon Affidavit;

(c) Tab 14 of Exhibit “SDHL-1” to the Langdon Affidavit;

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(d) Tab 15 of Exhibit “SDHL-1” to the Langdon Affidavit; and

(e) the executed CDE Contract filed with the Court in accordance with Order 9

herein.

5. Pursuant to Rule 8.21 of the Federal Court Rules 2011, the Plaintiffs have leave to file

an amended Originating Process in the form handed up on 21 July 2016.

6. The costs of this application be costs in the administration of the Second Plaintiffs.

THE COURT DIRECTS THAT:

7. Pursuant to section 447D(1) of the Act, the First Plaintiffs are justified in causing

OneSteel Manufacturing Pty Ltd (Administrators Appointed) to enter into an

agreement with CDE Global Limited for the design, supply, install, assembly,

construct and commissioning of low grade iron ore processing equipment in Whyalla,

South Australia in substantially the same terms as the form of the agreement produced

at Tab 14 to Exhibit “SDHL-1” to the Affidavit of Scott David Harry Langdon

affirmed 21 July 2016 (CDE Contract).

8. Pursuant to section 447D(1) of the Act, the First Plaintiffs are justified in causing the

OneWhyalla Mining Entities to enter into the EFIC Loan on substantially the same

terms as those contained in the EFIC Term Sheet a copy of which is at Annexure A

hereto.

9. Within 7 days of the date of execution of the EFIC Loan and the CDE Contract, the

Plaintiffs file with the Court an affidavit exhibiting copies of the executed EFIC Loan

and CDE Contract.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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REASONS FOR JUDGMENT

DAVIES J:

1 On 22 July 2016 I pronounced orders and gave directions under ss 447A, 447D and 588FM

of the Corporations Act 2001 (Cth) (“the Act”) in relation to the conduct of the

administration of Arrium Limited (administrators appointed) (“Arrium”) and the other

Arrium Group companies listed in Schedule One (collectively “the Arrium Administration

Entities”). Due to the urgency for a decision on the orders and directions sought by the

administrators, written reasons for decision were not published at the time and I stated that I

would deliver written reasons later. These are my reasons.

BACKGROUND

2 The First Plaintiffs (from the firm of KordaMentha) are the administrators (“the

administrators”) of the Arrium Administration Entities, which were placed into voluntary

administration pursuant to the provisions of Part 5.3A of the Act on 7 April 2016. The

administrators are currently pursuing sale and recapitalisation processes in relation to the

Arrium Administration Entities’ businesses, including in respect of the “OneWhyalla”

business division (“the OneWhyalla business”). The OneWhyalla business includes

mining, steel manufacturing and port operations in and around Whyalla in South Australia.

3 The OneWhyalla business has experienced severe financial under performance since 2014

and made an EBITDA loss of $261 million in FY15 and an EBITDA loss of $84 million in

FY16. The administrators have been taking action to implement cost reductions and

increased efficiencies in the OneWhyalla business to enhance its longer term viability and

maximise the possibility of a going concern recapitalisation or sale of the mining operations

consistent with the objects of Part 5.3A of the Act. As part of these actions, the

administrators have formed the view that it is in the best interests of OneSteel Manufacturing

Pty Ltd (administrators appointed) (“OneSteel Manufacturing”) in its capacity as one of the

Arrium Administration Entities that owns and operates the OneWhyalla business’ mining

operations, to install two low grade iron ore beneficiation plants at OneWhyalla’s mining

sites at Iron Knob and Iron Barron near Whyalla in South Australia (“the Beneficiation

Plants”). The investment in the Beneficiation Plants would allow the OneWhyalla Business’

mining operations to process and blend low cost/low grade ores with higher grade process

ores to support OneWhyalla’s market offering at 58% Fe grade index and are considered

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critical to enabling the OneWhyalla business’ mining operations to target high grade ore

export sales at 10 Mtpa. This initiative was considered and supported by the board of

OneSteel Manufacturing before the company was placed into administration. The

administrators have reviewed the Arrium Group’s estimate of the likely economic benefit of

the installation of the Beneficiation Plants to the OneWhyalla business which they consider

appropriate. It is estimated the Beneficiation Plants will contribute an additional

$241 million in positive cashflow ($180 million taking into account capital expenditure cost)

over the 5 year period FY17 to FY22, with a net present value (employing a 10% discount

rate) of $122 million. If the Beneficiation Plants are not implemented into OneWhyalla’s

mining operations, the mining operations are forecast to be cash-flow negative.

4 The administrators believe that the purchase and commissioning of the Beneficiation Plants

are crucial to the administrators’ strategy to address the current loss making situation and

return the OneWhyalla business to being cash-flow neutral or marginally cash-flow positive

and demonstrate longer term viability. The administrators believe that these initiatives and

outcomes will make the OneWhyalla business more likely to be sold or recapitalised as a

going concern successfully. The administrators predict that without the Beneficiation Plants

OneWhyalla’s mining operations will continue to trade on a negative cash-flow basis and

may need to cease operations in the near term. The closure of the OneWhyalla business

would crystallise substantial contingent liabilities, including employee redundancy and leave

liabilities estimated at $164 million, and would potentially leave 3,400 people unemployed,

amongst other likely damaging consequences.

5 In order to finance the purchase, construction and installation of the Beneficiation Plants

(which will cost around $50 million), the administrators sought and obtained a limited

recourse funding commitment from the Commonwealth Government for the capital

investment. The lender will be Export Finance and Insurance Corporation (“EFIC”) and the

amount to be lent is $49.2 million (“the EFIC Loan”).

6 Under the terms which have been negotiated and provided for in the term sheet (“the EFIC

Term Sheet”) the administrators have agreed to grant security interests in favour of EFIC

over the OneWhyalla business’ mining assets as follows:

Security The Obligors will grant specific limited recourse security to the Lender over all assets and other rights held by the Obligors in relation to the Contract, the Washing Plants and the Whyalla mining assets (which exclude, for the avoidance of doubt, the Whyalla steel

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manufacturing and port operations) (“Secured Property”).

The “Borrower” is OneSteel Manufacturing Pty Ltd (administrator appointed) (“OneSteel

Manufacturing”), which is one of the Arrium Administration Entities, and owns and

operates the OneWhyalla business’ mining operations. The “guarantors” are other Arrium

Administration Entities that also own assets that are used solely in the OneWhyalla business’

mining operations: Central Iron Pty Ltd (administrators appointed), Southern Iron Pty Ltd

(administrators appointed), Coober Pedy Resources Pty Ltd (administrators appointed) and

Arrium Iron Ore Holdings Pty Ltd (administrators appointed). These companies, together

with OneSteel Manufacturing, are collectively referred to as “the OneWhyalla Mining

Entities”.

7 EFIC’s right to repayment from the proceeds of sale of the OneWhyalla business’ mining

assets is to rank as a first priority over all other unsecured debts and claims against OneSteel

Manufacturing by virtue of s 556(1)(a) of the Act, including employees in relation to their

entitlements, but the repayment obligation is limited to recourse over the mining assets only

and EFIC will have no recourse to any other assets of the OneWhyalla Mining Entities or the

Arrium Group other than the secured property. The EFIC Term Sheet also includes the

following:

Non-recourse The Lender acknowledges and agrees that it will have no recourse to any member of the broader Arrium group under or in connection with the Loan Documents other than the Obligors.

8 The administrators also negotiated the substance of the terms of a contract with CDE Global

Limited (“CDE”) for the design, supply, installation, assembly, construction and

commissioning of the Beneficiation Plants (“the CDE Contract”) and various minor works

contracts for site preparation and infrastructure to enable installation and commissioning of

the two Beneficiation Plants. The CDE Contract contains a provision in clause 20.4 to the

effect that the administrators will not be personally liable to pay or satisfy the obligations of

OneSteel Manufacturing under the CDE Contract.

9 The administrators formed the commercial view that it is in the best interests of the creditors

and stakeholders of OneSteel Manufacturing and the broader Arrium Administration Entities,

and consistent with the object of Part 5.3A of the Act that OneSteel Manufacturing enter into

the CDE Contract and the EFIC Loan provided that the funding is made available on the

terms of the EFIC Term Sheet with recourse limited to the OneWhyalla business’ mining

assets only and not the port or other assets.

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ORDERS AND DIRECTIONS SOUGHT

10 The administrators sought an order pursuant to s 447A of the Act to the effect that Part 5.3A

of the Act is to operate in relation to each of the Arrium Administration Entities as if

s 443A(1) of the Act reads in respect of each of those entities as follows.

(1) [Where administrator liable for debts] The administrator of a company under administration is liable for debts he or she incurs, in the performance or exercise, or purported performance or exercise, of any of his or her functions and powers as administrator, for:






(f) borrowing costs,

except for any debts he or she incurs arising out of or in connection with an agreement to be entered into between OneSteel Manufacturing Pty Ltd (Administrators Appointed) and CDE Global Limited for the design, supply, install, assembly, construct and commissioning of low grade iron ore processing equipment in Whyalla, South Australia.

11 The administrators also sought an order pursuant to s 447A of the Act to the effect that

Part 5.3A of the Act is to operate in relation to each of the Arrium Administration Entities so

that any personal liability of the administrators pursuant to s 443A of the Act arising out of or

in connection with the EFIC Loan will be limited to an amount equal to the proceeds of sale

of the mining assets owned by the OneWhyalla Mining Entities and otherwise in the manner

provided for in the EFIC Term Sheet.

12 Additionally, the administrators sought directions pursuant to s 447D(1) of the Act that they

are justified:

(a) in causing OneSteel Manufacturing to enter into the CDE Contract; and

(b) in causing the OneWhyalla Mining Entities to enter into the EFIC Loan.

13 A further order was sought pursuant to s 588FM of the Act in respect of the security interest

to be granted by the OneWhyalla Mining Entities in favour of EFIC that the registration time

for the purposes of s 588FL(2)(b)(iv) of the Act be fixed as the end of 20 business days after

the security agreement giving rise to the security interest comes into force.

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14 The administrators sought the orders and directions on short notice because of the need to

execute the CDE Contract and pay the first instalment by 22 July 2016 to avoid the risk that

OneSteel Manufacturing would lose its slot in CDE’s manufacturing schedule which is fixed

months in advance, causing significant delay to the construction, installation and

commissioning of the Beneficiation Plants. It was said that a one month delay in progressing

the Beneficiation Plants would result in a $14 million negative cash impact in FY17. If the

scheduled commencement date is met, the administrators expect the Beneficiation Plants to

be fully operational by May 2017 and August 2017 respectively. At the time of the hearing,

both the terms of the CDE Contract and the EFIC Loan were substantially agreed.

15 The administrators gave notice of the application, and of the orders and directions sought, to

the Arrium Committee of Creditors, ASIC, the State Government of South Australia, EFIC

and the Arrium Group’s lenders (who are owed over $2.8 billion). The members of the

Arrium Committee of Creditors include representatives of non-union employees, the AWU,

the ACTU, trade creditors and the Arrium Group lenders. No creditors or stakeholders

expressed objections to the orders and directions sought in the application and to the extent

that queries were raised, they were addressed by the administrators.

Orders 1 and 2: modification of s 443A in respect of personal liability

16 In view of the size of the transaction and the sums involved, the administrators are not willing

to incur personal liability in relation to the CDE Contract, or an unlimited personal liability in

relation to the EFIC Loan. However, notwithstanding the exclusion and limitation of

personal liability under the CDE Contract and the EFIC Loan, by entering into those

transactions, the administrators will incur personal liability in respect of debts arising under

those agreements by operation of ss 443A(1) and (2) of the Act. Sections 443A(1) and (2) of

the Act provide as follows:

(1) The administrator of a company under administration is liable for debts he or she incurs, in the performance or exercise, or purported performance or exercise, of any of his or her functions and powers as administrator, for:





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(f) borrowing costs.

(2) Subsection (1) has effect despite any agreement to the contrary, but without prejudice to the administrator’s rights against the company or anyone else.

17 Accordingly the administrators sought a modification of the operation of s 443A of the Act to

exclude personal liability for the debts incurred arising out of or in connection with the

CDE Contract and the EFIC Loan. It is undoubted that the Court has the power under s 447A

to make the orders sought which would have the effect of limiting the administrators’

personal liability for the debts incurred under the CDE Contract and the EFIC Loan that

would otherwise attach by operation of s 443A and there is authority that such an order in

appropriate cases will be made. These authorities were considered in Re Mentha (in their

capacities as joint and several administrators of the Griffin Coal Mining Company Pty Ltd

(administrators appointed) (ACN 008 667 285) and Another (2010) 82 ACSR 142. At

[28]-[34] Gilmour J stated as follows:

[28] It is well established that the Court has power under s 447A of the Corporations Act to order an indemnity where the indemnity available to the administrator under s 443D is insufficient or in doubt, in order to satisfy the debts for which the administrator is personally liable pursuant to s 443A: Mentha, Re Spyglass Management Group Pty Ltd (2004) 51 ACSR 432; [2004] FCA 1469.

[29] It is also well established that the Court has power under s 447A of the Corporations Act to make orders to limit the administrators’ personal liability under s 443: Hayes Re Estate Property Group Ltd (admins apptd) [2007] FCA 1393; Re Malanos [2007] NSWSC 865 (Re Malanos); Re View Gold Pty Ltd, View Resources Ltd & View Nickel Pty Ltd; Ex Parte Saker [2008] WASC 241 (Re View); Re Great Southern Infrastructure Pty Ltd; Ex parte Jones [2009] WASC 161 (Re Great Southern); Carter, Re SFM Australasia Pty Ltd (admin apptd) [2009] FCA 360; and Vision (Brisbane) Pty Ltd (admins apptd) [2010] FCA 186.

[30] The principles governing the granting of an application for orders under s 447A to vary the liability of administrators under s 443A can be summarised as follows:

(a) the proposed arrangements are in the interests of the company’s creditors and consistent with the objectives of Part 5.3A of the Corporations Act: Re Great Southern at [13].

(b) typically the arrangements proposed are to enable the company’s business to continue to trade for the benefit of the company’s creditors: Re Malanos at [9] and Re View at [17].

(c) the creditors of the company are not prejudiced or disadvantaged by the types of orders sought and stand to benefit from the administrators entering into the arrangement: Re View at [18], and also Re Application of Fincorp Group Holdings Pty Ltd [2007]

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NSWSC 628 at [17].

(d) notice has been given to those who may be affected by the order: Re Great Southern at [12].

[31] Most of the cases where the courts have exercised its power under s 447A to vary the administrator’s personal liability under s 443A have involved administrators borrowing funds during the period of the administration. The orders typically sought have the effect of limiting recourse of the counterparty to the administrator personally to the extent to which he or she is able to be indemnified from the assets of the company.

[32] However, Re Cook Cove Pty Ltd (admins appt) [2009] NSWSC 620 (Re Cook) was a case which involved the administrators entering into various post appointment construction related contracts. In that case, orders were made to limit the administrators’ potentially significant personal liability under the post appointment contracts to the extent that they were able to be satisfied out of the property of the company.

[33] In Re Cook at [40], Austin J considered the practical utility of the administrators’ statutory indemnity as being a crucial factor in favour of granting the orders sought.

[34] Austin J in Re Cook at [37] also made the following comments:

[37] One can envisage cases in which it would not be appropriate to make an order limiting the normal liability of an administrator under Pt 5.3A for post-appointment debts: for example, where the administrator proposes to enter into many business transactions in the course of carrying on the company’s business, contracting with suppliers and service providers for relatively small amounts in circumstances where those with whom the administrator contracts would not be aware of the court’s order and would be entitled to assume that the normal liability provisions of Pt 5.3A were applicable. But the decided cases are of a different kind.

The administrators in that case were in the process of selling the company’s coal mining

business on a going concern basis and formed the view that to maximise the outcome of the

sale process, the company needed to apply for new mining leases and licences. The purpose

of the orders sought was to make the administrators personally liable only for such debts in

connection to the new mining leases and licences as were accrued and were attributable to the

administration. Gilmour J was prepared to make an order under s 447A of the Act limiting

the administrators’ personal liability under s 443, concluding that the order was consistent

with the objectives of Part 5.3A of the Act.

18 In Re Nexus Energy Limited [2014] NSWSC 1041, Black J also made an order under s 447A

of the Act limiting the administrators’ personal liability in respect of borrowings under a

facility agreement which the administrators proposed to enter into to enable the holding

company to be placed in a position so that it could support its subsidiaries and avoid the risk

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of their failure. The administrators had led evidence that the entry into the funding agreement

was in the best interests of creditors by permitting the corporate group to continue to trade, so

as to maximise the prospects that a satisfactory sale price would be achieved for the

company’s assets. At [14], after referring to Mentha Re Griffin Coal Mining Company Pty

Ltd, Black J stated as follows:

…Turning to the relevant factors in this case, it seems to me that the proposed arrangements to limit the administrators’ liability are necessary to the proposed funding arrangements, because they could not be expected to personally accept liability for a substantial borrowing in these circumstances, and the borrowing itself is in creditors’ interests and consistent with the objectives of Pt 5.3A of the Corporations Act so far as it seeks to maximise the recoveries that are likely to be made from the sale of the Company’s assets, and indeed preserve an opportunity to sell those assets which might otherwise be lost to the Company. It does not seem to me that there is significant prejudice or disadvantage to creditors of the Company from entry into the arrangement. The secured lender obtains security, as might be expected, for the additional moneys that are advanced, but that does not give rise to prejudice to other creditors, so long as those moneys are likely to generate at least the value which is the subject of that security, as is established in the present case so far as they preserve an opportunity for the sale of the Company’s assets. It seems to me that notice has been given to those who are affected by the order, both by drawing attention to it at the first creditors’ meeting and by a subsequent release to Australian Securities Exchange Ltd, albeit that notice has been given shortly prior to this application, given the urgency of the application. In any event, the administrators have indicated that they have no objection to the Court making an order reserving liberty to other interested persons to apply.

These considerations aptly apply in the present case.

19 In this case, it is the administrators’ view that the installation and commission of the

Beneficiation Plants is critical to the longer term viability of the OneWhyalla business and

arresting the current loss making situation and to achieve this, funding is required which

EFIC has agreed to provide. It is reasonable that they not be required to accept personal

liability for those debts arising out of the CDE Contract and the EFIC Loan, and the orders

are appropriate to be made, particularly as both counterparties have agreed to modify the

administrators’ personal liability so that liability under the CDE Contract is excluded and the

administrators’ personal liability under the EFIC Loan is limited to the sale proceeds of the

OneWhyalla business, if any.

Order 3: fixing the time under s 588FL for registration of the security interests

20 Order 3 was sought because there is a concern about the potential operation of s 588FL of the

Act. Section 588FL deals with the automatic vesting of a PPSA security interest in the

guarantor, if an effective registration is not made within the time set out by s 588FL(2)(b) and

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the interest is not perfected by other means. Relevantly, under s 588FL(2)(b)(ii) the deadline

for registration is the earlier of the time that is the end of 20 business days after the security

agreement that gave rise to the security interest came into force and the “critical time” which

is defined in s 588FL(7) to be, relevantly, the date on which the administration of the grantor

began. Concern was expressed that it is arguable on a strict construction of s 588FL of the

Act that the security interest granted in favour of EFIC under the EFIC Loan will

immediately and automatically vest in the OneWhyalla Mining Entities because the security

will be granted after the “critical date”. For this reason, EFIC requested, and the

administrators sought, an order under s 588FM extending the time for the security interests in

favour of EFIC to be registered under the PPSA. The registration time can be extended by

order of the Court: s 588FL(2)(b)(iv) and s 588FM of the Act. Section 588FM provides as

follows:

(1) A company, or any person interested, may apply to the Court (within the meaning of section 58AA) for an order fixing a later time for the purposes of subparagraph 588FL(2)(b)(iv).

Note: If an insolvency-related event occurs in relation to a company, paragraph 588FL(2)(b) fixes a time by which a PPSA security interest granted by the company must be registered under the Personal Property Securities Act 2009, failing which the security interest may vest in the company.

(2) On an application under this section, the Court may make the order sought if it is satisfied that:

(a) the failure to register the collateral earlier:

(i) was accidental or due to inadvertence or some other sufficient cause; or

(ii) is not of such a nature as to prejudice the position of creditors or shareholders; or

(b) on other grounds, it is just and equitable to grant relief.

(3) The Court may make the order sought on any terms and conditions that seem just and expedient to the Court.

21 It is appropriate to make an order under s 588FM extending the registration time to put

beyond doubt that s 588FL will not, in this case, operate to vest the security interest in the

OneWhyalla Mining Entities automatically because the “critical time”, being the

commencement of a voluntary administration, has already passed.

Orders 7 and 8: directions under s 447D

22 Section 447D(1) of the Act provides that:

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The administrator of a company under administration, or of a deed of company arrangement, may apply to the Court for directions about a matter arising in connection with the performance or exercise of any of the administrator’s functions and powers.

23 In Re Ansett Australia Limited (2001) 39 ACSR 355, Goldberg J observed at [62] that the

purpose of a direction under s 447D:

…is to provide the administrator or liquidator with a protection against claims that he or she acted inappropriately or unreasonably in entering into, and performing, the agreement.

24 The administrators submitted that it is appropriate that the Court make the directions sought

for that purpose in relation to the entry into the CDE Contract and the EFIC Loan. I accept

the submission for the administrators that the directions sought in this case do not relate

merely to the making and implementation of a business or commercial decision. In Re Ansett

Australia Limited (No. 3) (2002) 115 FCR 409, Goldberg J stated at [65]:

This review of the authorities satisfies me that the prevailing principle adopted by the courts, when asked by liquidators and administrators to give directions, is to refrain from doing so where the direction sought relates to the making and implementation of a business or commercial decision, either committed specifically to the liquidator or administrator or well within his or her discretion, in circumstances where there is no particular legal issue raised for consideration or attack on the propriety or reasonableness of the decision in respect of which the directions are sought. There must be something more than the making of a business or commercial decision before a court will give directions in relation to, or approving of, the decision. It may be a legal issue of substance or procedure, it may be an issue of power, propriety or reasonableness, but some issue of this nature is required to be raised. It is insufficient to attract an order giving directions that the liquidator or administrator has a feeling of apprehension or unease about the business decision made and wants reassurance. There must be some issue which arises in relation to the decision. A court should not give its imprimatur to a business decision simply to alleviate a liquidator’s or administrator’s unease. There must be an issue calling for the exercise of legal judgment.

As the authorities show, albeit that a decision is made for commercial reasons, where the

decision is capable of giving rise to some legal controversy or there is some question about

the propriety or reasonableness of the decision, the Court will in appropriate cases make a

direction which approves the decision made.

25 The administrators made the commercial decision to enter into the CDE Contract and the

EFIC Loan because they consider that these transactions are in the best interests of the

creditors and consistent with the objects of Part 5.3A of the Act. Whilst no creditor or

stakeholder has raised any objection and, indeed, there appears to be substantial support for

the administrators entering into those contracts, the administrators are concerned that the

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decision might be criticised in future. Mr Langdon, a partner of KordaMentha who is

working with the administrators on various aspects of the administrations, including the

ongoing administration, strategic review, trading activities, restructuring and sale

and/recapitalisation work relating to the OneWhyalla business, deposed that:

77. There are risks that despite the purchase and installation of the Beneficiation Plants, a ‘going concern’ sale / recapitalisation may not be achieved or that volatility in iron prices in the next 6 to 12 months results in lower than forecast returns and continued losses. The Administrators are also cognisant of the fact that the commercial rationale underpinning the capital expenditure they are undertaking in respect of the Beneficiation Plants is predicated on the OneWhyalla Business targeting forecast sales volumes of high grade ore of 10Mtpa over the next five years. If the OneWhyalla Business ceases operations in the near term, or a ‘going concern’ sale or recapitalisation, or a sale on a ‘care and maintenance’ basis is not possible, then the value of the capital expenditure may be lost and EFIC may not be repaid in full. There remains a risk that the Administrators will not be able to sell the mines, notwithstanding the improved performance arising from the commissioning of the Beneficiation Plants.

78. In these circumstances the Administrators are concerned that they may be criticised for causing OneSteel Manufacturing and the other Arrium Mining Entities to enter into the transactions contemplated in the CDE Contract and the EFIC Loan…

26 Possible legal issues which may arise have also been identified. One issue concerns the

question of apportionment of sale proceeds if the OneWhyalla business is sold or

recapitalised as a package including the mining business, the port facility and the steel

manufacturing business and the extent to which the sale proceeds are referrable to the mining

assets the subject of EFIC’s security. In Re Ansett Australia Limited (2001) 39 ACSR 355

there was concern that a similar kind of apportionment issue would arise. Goldberg J made a

direction under s 447D approving the entry by the administrators into a memorandum of

understanding that involved the payment by Air New Zealand of a lump sum payment in

relation to all claims as between Air New Zealand and Ansett. His Honour accepted that the

decision was not purely commercial but involved legal issues, including in relation to the

value and subsequent apportionment of the value of the compromised claims as between the

Ansett entities and Hazelton Airlines. Another issue concerns the ability of the

administrators to sell the OneWhyalla mining assets if EFIC refused its consent to the sale as

would be required by s 442C of the Act as the holder of security over those assets. There is

also the fact that it is unusual for security to be granted after a company is already in

voluntary administration with the potential to raise unforeseen issues, such as the operation of

- 12 -

s 588FL of the Act in relation to whether the security interest would automatically vest in the

OneWhyalla Mining Entities.

27 These are all matters which are capable of giving rise to legal controversy and bring into

question the propriety and reasonableness of the decision to enter into the two contracts and I

considered it appropriate to make the directions sought.

Order 4

28 Each of the documents the subject of the confidentiality order contain sensitive and

confidential information which justified the order under s 37AF of the Federal Court of

Australia Act 1976 (Cth).

Order 9

29 Order 9 was sought by ASIC because at the date of the hearing the contracts had not been

executed. There was no objection taken.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.

Associate:

Dated: 17 August 2016

- 13 -

SCHEDULE ONE

A.C.N. 006 769 035 Pty Limited (ACN 006 769 035)

Akkord Pty Limited (ACN 060 486 991)

ANI Construction (W.A.) Pty. Limited (ACN 008 670 871)

Arrium Finance Pty Limited (ACN 093 954 940)

Arrium Iron ore Holdings Pty Limited (ACN 152 752 844)

Arrium Limited (ACN 004 410 833)

Atlas Group Employees Superannuation Fund Pty. Limited. (ACN 060 568 998)

Atlas Group Staff Superannuation Fund Pty. Limited. (ACN 059 654 241)

Atlas Group Superannuation Plan Pty Limited (ACN 065 649 050)

Australian National Industries Pty Limited (ACN 000 066 071)

Australian Wire Industries Pty Limited (ACN 064 267 456)

Austube Mills Holdings Pty Limited (ACN 123 160 172)

Austube Mills Pty Limited (ACN 123 666 679)

AWI Holdings Pty Limited (ACN 004 157 475)

B.G.J. Holdings Proprietary Limited (ACN 004 859 536)

Bradken Consolidated Pty Limited (ACN 000 011 932)

Central Iron Pty Limited (ACN 143 503 397)

Cockatoo Dockyard Pty Limited (ACN 000 025 918)

Comsteel Pty. Limited (ACN 006 218 524)

Coober Pedy Resources Pty Limited (ACN 151 599 905)

Eagle & Globe Pty Limited (ACN 000 122 305)

Email Accumulation Superannuation Pty Limited (ACN 065 263 658)

Email Executive Superannuation Pty Limited (ACN 065 263 818)

Email Holdings Pty Limited (ACN 092 348 555)

Email Management Superannuation Pty Limited (ACN 065 263 710)

Email Metals Pty. Limited. (ACN 004 574 681)

- 14 -

Email Pty Limited (ACN 000 029 407)

Email Superannuation Pty Limited (ACN 065 263 603)

Emwest Holdings Pty. Limited. (ACN 001 992 123)

Emwest Properties Pty Limited (ACN 003 146 334)

GSF Management Pty Limited (ACN 064 116 874)

J. Murray-More (Holdings) Pty Limited (ACN 000 158 412)

John McGrath Pty Limited (ACN 000 004 937)

Kelvinator Australia Pty Limited (ACN 007 873 734)

Litesteel Products Pty Limited (ACN 109 854 677)

Litesteel Technologies Pty Limited (ACN 113 101 054)

Metals Properties Pty. Limited. (ACN 000 040 040)

Metalstores Pty Limited (ACN 000 267 112)

Metpol Pty Limited (ACN 000 927 373)

N.K.S. (Holdings) Proprietary Limited (ACN 004 321 313)

O Dee Gee Co. Pty. Limited. (ACN 004 208 191)

Onesteel Americas Holdings Pty Limited (ACN 147 067 016)

Onesteel Building Supplies Pty Limited (ACN 000 045 349)

Onesteel Coil Coaters Pty Limited (ACN 123 138 732)

OneSteel Manufacturing Pty Limited (ACN 004 651 325)

Onesteel MBS Pty Limited (ACN 096 273 979)

Onesteel Nsw Pty Limited (ACN 003 312 892)

Onesteel Queensland Pty Limited (ACN 010 558 871)

Onesteel Recycling Holdings Pty Limited (ACN 059 240 952)

Onesteel Recycling Overseas Pty Limited (ACN 105 479 356)

Onesteel Recycling Pty Limited (ACN 002 707 262)

Onesteel Reinforcing Pty Limited (ACN 004 148 289)

Onesteel Stainless Australia Pty Limited (ACN 004 610 851)

- 15 -

Onesteel Stainless Pty Limited (ACN 006 362 652)

Onesteel Technologies Pty Limited (ACN 096 380 219)

Onesteel Trading Pty Limited (ACN 007 519 646)

Onesteel US Investments 1 Pty Limited (ACN 131 211 606)

Onesteel US Investments 2 Pty Limited (ACN 131 211 571)

Onesteel Wire Pty Limited (ACN 000 010 873)

Overseas Corporation (Australia) Pty Limited (ACN 004 242 086)

P & T Tube Mills Pty Limited (ACN 010 469 977)

Palmer Tube Mills Pty Limited (ACN 010 469 879)

Pipeline Supplies of Australia Pty Limited (ACN 008 573 475)

Reosteel Pty Limited (ACN 000 142 094)

Roentgen Ray Pty Limited (ACN 000 028 106)

Southern Iron Pty Limited (ACN 119 611 068)

SSG Investments Pty Limited (ACN 085 490 526)

SSG No.2 Pty Limited (ACN 087 840 720)

SSG No.3 Pty Limited (ACN 087 840 515)

SSGL Share Plan Nominees Pty Limited (ACN 085 943 540)

SSX Acquisitions Pty Limited (ACN 090 574 520)

SSX Employees Superannuation Fund Pty Limited (ACN 064 431 116)

SSX Holdings Pty Limited (ACN 087 813 116)

SSX International Pty Limited (ACN 084 990 947)

SSX Pty Limited (ACN 082 181 726)

SSX Retirement Fund Pty Limited (ACN 064 431 303)

SSX Services Pty Limited (ACN 083 090 831)

SSX Staff Superannuation Fund Pty Limited (ACN 064 431 072)

Tasco Superannuation Management Pty Limited (ACN 071 901 712)

The ANI Corporation Pty Limited (ACN 000 421 358)

- 16 -

The Australian Steel Company (Operations) Pty Limited (ACN 069 426 955)

Tube Estates Pty. Limited. (ACN 010 449 939)

Tube Street Pty Limited (ACN 004 785 157)

Tube Technology Pty. Limited. (ACN 010 469 986)

Tubemakers of Australia Pty Limited (ACN 000 005 498)

Tubemakers Somerton Pty Limited (ACN 004 595 546)

Western Consolidated Industries Pty Limited (ACN 001 185 913)

Whyalla Ports Pty Limited (ACN 153 225 364)

X.C.E. Pty Limited (ACN 004 081 903)

XEM (Aust) Pty Limited (ACN 004 158 025)

XLA Pty Limited (ACN 004 239 392)

XLL Pty Limited (ACN 006 301 266)

XMS Holdings Pty Limited (ACN 008 742 014)

Zinctek Pty limited (ACN 010 474 790)