Gandel Metals Pty Ltd, in the matter of Centennial Mining Limited (Subject to Deed of Company Arrangement) v Centennial Mining Limited (Subject to Deed of Company Arrangement)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: MOSHINSKY J
• Judgment Date: 20 February 2020
• Neutral Citation: [2020] FCA 250
• Date: 20 February 2020

FEDERAL COURT OF AUSTRALIA

Gandel Metals Pty Ltd, in the matter of Centennial Mining Limited (Subject to Deed of Company Arrangement) v Centennial Mining Limited (Subject to Deed of Company Arrangement) [2020] FCA 250

File number:	VID 688 of 2019
Judge:	MOSHINSKY J
Date of judgment:	20 February 2020
Catchwords:	CORPORATIONS – deed of company arrangement – whether deed of company arrangement had terminated due to non-satisfaction of conditions precedent – whether proposed new deed of company arrangement would constitute a “variation” of the existing deed of company arrangement within the meaning of s 445A of the Corporations Act 2001 (Cth) – whether orders should be made pursuant to s 447A of the Corporations Act that Pt 5.3A operate in a particular way in relation to a company
Legislation:	Corporations Act 2001 (Cth), ss 444B, 444DA, 444GA, 445A, 445C, 445D, 447A, 1322
Cases cited:	Australian Memory Pty Ltd v Brien (2000) 200 CLR 270 Brandrill Pty Ltd v Newmont Yandal Pty Ltd (2006) 24 ACLC 1,179 Calabretta v Redpen Developments Pty Ltd (in liq) (2010) 183 FCR 47 Deputy Commissioner of Taxation v Portinex Pty Ltd (2000) 156 FLR 453 FAI Workers Compensation (NSW) Ltd v Philkor Builders Pty Ltd (No 2) (1996) 21 ACSR 532 McIntosh v CMX Technologies Pty Ltd (2005) 56 ACSR 283 Mighty River International Ltd v Hughes (2018) 359 ALR 181
Date of hearing:	19 February 2020
Registry:	Victoria
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Category:	Catchwords
Number of paragraphs:	64
Counsel for the Plaintiff:	Mr S Maiden QC with Mr A Ounapuu
Solicitor for the Plaintiff:	HWL Ebsworth Lawyers
Counsel for the First, Second, Third, Fourth and Fifth Defendants:	Mr P Crutchfield QC with Mr P Edgar
Solicitor for the First, Second, Third, Fourth and Fifth Defendants:	Lavan
Counsel for the Sixth Defendant:	The Sixth Defendant did not appear
Counsel for the Interested Party:	Mr CR Brown
Solicitor for the Interested Party:	CCK Lawyers

ORDERS

		VID 688 of 2019
IN THE MATTER OF CENTENNIAL MINING LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT (ACN 149 308 921))
BETWEEN:	GANDEL METALS PTY LTD (ACN 102 347 955) Plaintiff
AND:	CENTENNIAL MINING LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 149 308 921) First Defendant ; MALDON RESOURCES PTY LTD (ACN 090 458 665) Second Defendant ; RICHARD SCOTT TUCKER (and others named in the Schedule) Third Defendant

JUDGE:	MOSHINSKY J
DATE OF ORDER:	20 FEBRUARY 2020

THE COURT NOTES THAT:

The third to fifth defendants and the interested party undertake to not effectuate the DOCA, being the “effectuation steps” referred to at point 6 of part 4.3.14 of the Report to Creditors dated 28 January 2020, prior to 4.00 pm on 13 March 2020 subject to further order from the Court.

THE COURT ORDERS THAT:

1. Pursuant to s 447A of the Corporations Act 2001 (Cth) (the Act), Part 5.3A of the Act is to operate in relation to Centennial Mining Ltd (subject to deed of company arrangement) (Centennial) and Maldon Resources Pty Ltd (subject to deed of company arrangement) (Maldon) (collectively, the Companies) as if:

   1. on or around 20 January 2020, the date for satisfaction of the Conditions Precedent (as defined in clause 22.1 of the deed of company arrangement dated 20 November 2019 (Amended DOCA)) was extended by the Deed Administrators and Avior Consulting Pty Ltd to 28 February 2020;

   2. s 445C(c) of the Act did not have the effect that the Amended DOCA was terminated on 24 January 2020;

   3. the terms of the Amended DOCA continue to bind the Deed Administrators and the creditors of Centennial and Maldon (Creditors); and

   4. the Notice of Meeting of Creditors dated 28 January 2020 and published on the Deed Administrators’ firms’ website on 30 January 2020, for the meeting held on 12 February 2020 (the Meeting of Creditors) was validly issued pursuant to the continuing Amended DOCA and the Act.

2. Pursuant to s 447A of the Act, Part 5.3A of the Act is to operate in relation to the Companies such that:

   1. the Amended DOCA continues to bind the Deed Administrators and the Creditors;

   2. Clause 22.1.1 of the Amended DOCA read:

the Conditions Precedent are not satisfied or waived on or before 31 March 2020, or such other date as agreed in writing between the Deed Administrators and the Proponent.

3. Paragraphs (b)(i) and (c)(i) of the plaintiff’s further amended originating process (FAOP) dated 7 February 2020 be dismissed.

4. The plaintiff’s interlocutory process dated 7 February 2020 (Plaintiff’s Interlocutory Process) otherwise be dismissed.

Further interlocutory application

5. The plaintiff file and serve any application to set aside the Oldfield DOCA and any affidavits in support by 4.00 pm on 26 February 2020, such application be made returnable on 12 March 2020.

6. The first to fifth defendants file and serve any affidavits in response by 4.00 pm on 28 February 2020.

7. The interested party file and serve any affidavits in response by 4.00 pm on 2 March 2020.

8. The plaintiff file and serve any affidavits in reply, and its outline of submissions, by 4.00 pm on 4 March 2020.

9. The first to fifth defendants and interested party file and serve any outline of submissions in response by 4.00 pm on 6 March 2020.

Costs

10. The first to fifth defendants pay the plaintiff’s costs of the questions raised by paragraphs (b)(i) and (c)(i) of the FAOP.

11. In respect of the Plaintiff’s Interlocutory Process:

    1. the first to fifth defendants pay the plaintiff’s costs of the Plaintiff’s Interlocutory Process (excluding the costs incurred in respect of paragraph 1 of that application); and

    2. the plaintiff pay to the first to fifth defendants any costs thrown away by reason of the amendments to the amended originating process.

12. The first to fifth defendants pay the plaintiff’s costs of the first to fifth defendants’ interlocutory process dated 14 February 2020.

13. There be no order as to costs in respect of the interested party in relation to the questions and applications described in paragraphs 10 to 12 above.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1. The plaintiff, Gandel Metals Pty Ltd (Gandel), is a creditor of the first defendant, Centennial Mining Limited (subject to deed of company arrangement) (Centennial). The second defendant is Maldon Resources Pty Ltd (subject to a deed of company arrangement) (Maldon). The third, fourth and fifth defendants are the administrators of a deed of company arrangement in respect of Centennial and Maldon (the Deed Administrators). A company named V C Oldfield Investments Pty Ltd (Oldfield), which is not a party to the proceeding, has been given leave to appear as an interested party.

2. The proceeding was commenced some time ago, in June 2019. At that stage, a deed of company...