SCL AUS Limited v Kirkalocka Gold SPV Pty Ltd

• Jurisdiction: Australia Federal only
• Judgment Date: 24 December 2025
• Neutral Citation: [2025] FCA 1678
• Date: 24 December 2025
• Court: Federal Court

Federal Court of Australia

SCL AUS Limited v Kirkalocka Gold SPV Pty Ltd [2025] FCA 1678

ORDERS

WAD 454 of 2025
BETWEEN:	SCL AUS LIMITED Appellant
AND:	KIRKALOCKA GOLD SPV PTY LTD (FORMERLY SUBJECT TO DEED OF COMPANY ARRANGEMENT) (FORMERLY RECEIVERS AND MANAGERS APPOINTED) (ACN 626 160 816) First Respondent CHRISTOPHER HILL, VAUGHAN STRAWBRIDGE AND HAYDEN WHITE IN THEIR CAPACITIES AS FORMER JOINT AND SEVERAL RECEIVERS AND MANAGERS OF KIRKALOCKA GOLD SPV PTY LTD (FORMERLY SUBJECT TO DEED OF COMPANY ARRANGEMENT) (FORMERLY RECEIVERS AND MANAGERS APPOINTED) (ACN 626 160 816) Second Respondent

order made by:	VANDONGEN J
DATE OF ORDER:	24 DECEMBER 2025

THE COURT ORDERS THAT:

1. Upon:

(a) the appellant's undertaking as to damages that was filed on 16 December 2025; and

(b) the appellant further undertaking to pursue these proceedings with all due expedition,

the order made by the Court in WAD 110 of 2024 on 28 November 2025, that is in the following terms:

'Pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) (being Sch 2 to the Corporations Act) the defendant must:

(a) on or before Friday 12 December 2025, under s 122E(2)(b) of the Mining Act 1978 (WA), provide its consent to the withdrawal of Caveat No. 649465 registered over the Mining Lease; and

(b) otherwise do all things and provide all cooperation to the plaintiffs as is reasonably necessary to effect the withdrawal of the caveat as soon as practicable after Friday 12 December 2025',

is stayed until 4.00 pm AWST on 20 May 2026.

2. The sum of $100,000 that was paid into court on 19 December 2025 by the appellants in WAD 110 of 2024, shall stand as security for the appellant's undertaking as to damages referred to in order 1.

3. The costs of the appellant's further amended interlocutory process dated 23 December 2025 are reserved.

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

REASONS FOR JUDGMENT

VANDONGEN J:

1 The appellant, SCL AUS Limited (SCL), was the unsuccessful party in proceedings that were commenced by the respondents in mid-2024. In those proceedings the primary judge made orders in terms that largely reflected the orders that the respondents had sought: Kirkalocka Gold SPV Pty Ltd (Subject to Deed of Company Arrangement) (Receivers and Managers Appointed) v SCL AUS Limited [2025] FCA 1490. Having recently commenced an appeal against the primary judge's orders, the appellant has now made an urgent interlocutory application for an order temporarily staying one of those orders.

2 I am of the view that the appellant's application should be allowed and that orders should be made substantially in the form sought by the appellant. Before explaining why I have reached that conclusion, it is necessary to briefly summarise the background to the appellant's application.

Relevant background

3 The first respondent, Kirkalocka Gold SPV Pty Ltd (Kirkalocka), is a company that was incorporated in 2018 with a view to undertaking gold exploration and mining. One of its assets is a gold mine that is situated within a mining lease, M59/234, which is located about 70 km south of Mount Magnet, in the Mid-West region of Western Australia. The mine is called the 'Kirkalocka Gold Project'.

4 SCL, together with another company called Tor Asia Credit Opportunity Master Fund LP, entered into a royalty deed with Kirkalocka on 21 December 2018. Under the terms of the royalty deed, Kirkalocka was required to pay a royalty to SCL at a rate of $35 per ounce of doré (semi-refined gold) that was produced from any gold bearing material mined from the Kirkalocka Gold Project. The royalty deed also made provision for the lodgement, under the Mining Act 1978 (WA), of a caveat against the mining lease in favour of SCL, forbidding the registration of a dealing or surrender affecting the mining lease, or Kirkalocka's interest in the mining lease. SCL eventually lodged a caveat under the Mining Act against the mining lease in late 2022, after the Kirkalocka Gold Project has been placed into care and maintenance.

5 The second respondents are the former receivers and managers of Kirkalocka who were appointed in November 2023. Administrators were also appointed under Pt 5.3A of the Corporations Act 2001 (Cth) at the same time as the second respondents.

6 On 22 December 2023 the creditors of Kirkalocka entered into a deed of company arrangement (DOCA) to which Kirkalocka was then subject.

7 A dispute then emerged about whether the DOCA extinguished and barred certain rights and claims by SCL under the royalty deed, including SCL's rights to receive payment of future royalties and to see that caveats over relevant mining tenements are lodged and maintained. The parties were also in dispute about whether SCL should withdraw the caveat it had lodged over the mining lease.

8 Kirkalocka, while receivers and managers were still appointed, and while it was still subject to the DOCA, then commenced proceedings in this Court against SCL. Ultimately, the primary judge made various declarations in those proceedings, including declarations about the nature of SCL's rights under the royalty deed, and about the extent to which the DOCA was binding on SCL in respect of monetary claims it had against Kirkalocka under the royalty deed. Importantly, in the context of SCL's current interlocutory application, the primary judge also made an order that required SCL to provide its consent to the withdrawal of a caveat that was registered over the mining lease and to otherwise do all things that were reasonably necessary to effect the withdrawal of that caveat. In the balance of these reasons, I will refer to that order as the 'withdrawal of caveat order'.

9 After the primary judge had made final orders, SCL applied to his Honour for interlocutory orders to temporarily stay the withdrawal of caveat order. The primary judge allowed SCL's application and made further orders that required SCL to (a) file and serve an undertaking as to damages; (b) file and serve a notice of appeal; and (c) pay into Court by way of interim security for its undertaking, the sum of $100,000. Upon satisfaction of those conditions, the primary judge's order relating to the withdrawal of the caveat was to be stayed until 4.00 pm on 24 December 2025, or until further order of the Court.

10 The primary judge also made orders that effectively required the parties to ensure that SCL's application for a stay would be dealt with in any appeal proceedings that were commenced, and thus in the exercise of the Court's appellate jurisdiction.

11 There is no dispute that SCL has complied with the conditions referred to at [9] of these reasons, or that the interlocutory process that is now before me, as duty judge, has been brought in the appeal proceedings that were commenced by SCL on 12 December 2025. By that interlocutory process, SCL seeks an order that upon giving the usual undertaking as to damages, which is to be secured by the $100,000 that has already been paid into Court, the withdrawal of caveat order be stayed until 4.00 pm on 20 May 2026, or until further order of the Court.

12 Having sufficiently summarised the background to SCL's interlocutory process, it is then convenient to make brief reference to the principles that I am required to apply in determining whether the orders sought by SCL should be made.

Relevant principles

13 The principles that must be applied in the context of an application for a stay pending an appeal are not in dispute.

14 Rule 36.08(1)(a) of the Federal Court Rules 2011 (Cth) (Rules) provides that an appeal does not operate as a stay of execution or a stay of any proceedings under the judgment subject to the appeal. However, an appellant may apply to the Court for an order to stay the execution of the proceeding until the appeal is heard and determined. Section 25(2B)(ab) of the Federal Court of Australia Act 1976 (Cth) confers power on a single Judge to grant a stay under r 36.08 of the Rules pending determination of an appeal to the Court: O'Connor v Zentai [2011] FCA 1162 at [9] and Foster v Australian Competition and Consumer Commission [2014] FCA 240; (2014) 219 FCR 563 at [53].

15 The relevant principles to be applied were summarised by Thawley J in Darmali v Chu [2024] FCA 1521 at [29] to [30], where his Honour cited Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737 at [18]; Lehrmann v Network Ten Limited [2024] FCA 1226 at [30] and Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth (No 2) [2010] FCA 1212 at [15]. In the particular circumstances of this case, it is only necessary to note that in deciding whether to grant a stay, consideration must be given to at least the question of whether the appeal raises serious issues for determination of the appellate court, in the sense of raising arguable grounds, and the question of where the balance of convenience lies.

The evidence on which the parties rely

16 SCL relies on an affidavit affirmed by Steve Lyons, the General Counsel of a global asset management and banking group, SC Lowy. Mr Lyons says that he is authorised to make an affidavit on behalf of SCL. In his affidavit, Mr Lyons refers to the history of this matter and annexes a copy of the primary judge's reasons and orders, as well as correspondence that has been exchanged between the parties about the stay. His affidavit also contains what are, in effect, submissions in support of SCL's application for a stay.

17 SCL also tendered a copy of a letter sent by the respondents' solicitors to the solicitors acting on behalf of SCL on 11 December 2025. Amongst other things, the letter demonstrates that the respondents' solicitors indicated that the respondents may be prepared to consent to a stay on the basis that security be provided by SCL by paying $1.5 million into Court.

18 The respondents rely on an affidavit of Michael Tilley, who is a current director of Kirkalocka. In his affidavit, Mr Tilley says that Kirkalocka has now exited...