-
NOTICE OF FILING
This document was lodged electronically in the FEDERAL COURT OF AUSTRALIA (FCA) on
6/08/2020 11:56:53 AM AEST and has been accepted for filing under the Court’s Rules. Details of
filing follow and important additional information about these are set out below.
Details of Filing
Document Lodged: Submissions
File Number: VID519/2020
File Title: HABROK (DALGARANGA) PTY LTD v GASCOYNE RESOURCES
LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) & ORS
Registry: VICTORIA REGISTRY - FEDERAL COURT OF AUSTRALIA
Dated: 6/08/2020 11:57:00 AM AEST Registrar
Important Information
As required by the Court’s Rules, this Notice has been inserted as the first page of the document which
has been accepted for electronic filing. It is now taken to be part of that document for the purposes of
the proceeding in the Court and contains important information for all parties to that proceeding. It
must be included in the document served on each of those parties.
The date and time of lodgment also shown above are the date and time that the document was received
by the Court. Under the Court’s Rules the date of filing of the document is the day it was lodged (if
that is a business day for the Registry which accepts it and the document was received by 4.30 pm local
time at that Registry) or otherwise the next working day for that Registry.
-
Filed on behalf of Habrok (Dalgaranga) Pty Ltd, the Plaintiff
Prepared by Philip Crutchfield QC and Elizabeth Boros, Counsel for the Plaintiff
Law firm ARNOLD BLOCH LEIBLER Tel 03 9229 9961 Fax 03 9229 9900 Email [email protected]
Address for service Level 21, 333 Collins Street, Melbourne, VIC 3000
No. VID 519 of 2020
Federal Court of Australia
District Registry: Victoria
Division: Corporations List
IN THE MATTER OF GASCOYNE RESOURCES LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 139 522 900)
HABROK (DALGARANGA) PTY LTD (ACN 640 780 141)
Plaintiff
GASCOYNE RESOURCES LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 139 522 900) AND OTHERS NAMED IN THE ATTACHED SCHEDULE 1
Defendants
PLAINTIFF’S SUBMISSIONS FOR 7 AUGUST 2020
A. BACKGROUND
1. The plaintiff seeks orders in the proceeding terminating the Deed of Company
Arrangement (Administrators’ DOCA)1 executed on 26 June 2020 by the first to
seventh defendants (GCY Group) and the eighth defendant (Administrators), and for
the appointment of independent liquidators.
2. The grounds are that the Administrators’ DOCA contains material misleading
statements and omissions and that it would operate oppressively against one or more
creditors. More specifically, the grounds relate to:
(a) inadequate disclosure of the likely return to creditors in a liquidation;
(b) inadequate investigation of claims in a liquidation;
(c) inadequate disclosure regarding the creditors’ trust which is to be established;
(d) concerns regarding preferential treatment of the second-ranking secured creditor
(NRW) and the status of its security interest;
(e) the extinguishment of shareholder claims; and
1 Tab 20 to exhibit SR-1 to the affidavit of Simon Raftery sworn 4 August 2020.
-
2
(f) inadequate disclosure regarding the proposed capital raising and, in particular
whether, even if successful, it will return the GCY Group to solvency.
3. The completion of the capital raising is the last of several conditions precedent to
Completion set out in clause 3.1 of the Administrators’ DOCA.
4. Completion is further described in clause 8 of the Administrators’ DOCA and involves
termination of the DOCA, return of the GCY Group to control of the directors, and
release of the claims of all creditors, who will then only be entitled to participate as
creditors and beneficiaries under the creditors’ trust.
5. Once Completion occurs:
(a) it may no longer be possible to set aside the DOCA under s 445D of the
Corporations Act;2 and
(b) even if s 447A gives the court to terminate a deed ab intio (which has been
doubted), if rights and obligations separate from those created by the deed have
been created (such as rights under a creditors’ trust), those rights and
obligations may not be capable of being unwound under s 447A.3
B. REQUEST FOR EXPEDITED HEARING
6. It is for the reasons set out in the preceding paragraph that the application also seeks
interim relief to restrain the capital raising pending determination of this proceeding.
7. However, that relief would not be required if the hearing of this proceeding can be
expedited, and/or the administrators agree to adjust the timetable contemplated by the
DOCA, as they are empowered to do.
8. The indicative timetable for the capital raising (as set out in the Explanatory
Memorandum for the Extraordinary General Meeting4 of GCY held 5 August 2020)
provided that the issue date for new shares under the various offers is to be
1 September 2020. However, there is power to extend that timetable.5
9. The solicitors for the plaintiff have written to the Administrators today proposing a
timetable for directions that would enable the proceeding to be heard and determined
before 1 September 2020, and seeking an undertaking from the Administrators not to
cause GCY to issue shares to NRW and/or the trustees of the creditors’ trust before
2 Federal Commissioner of Taxation v Wellnora Pty Ltd (2007) 163 FCR 232, Lindgren J at [173]
and [178]; QBI Corporation Pty Ltd v Planation Rise Pty Ltd (2010) 77 ACSR 573, Wilson J at [27]. 3 Parkview Constructions Pty Ltd v Tayeh (2009) 71 ACSR 65, at [68]-[72]. 4 Tab 49 of exhibit SR-1 to the affidavit of Simon Raftery sworn 4 August 2020, point 1.8, p 12. 5 The Due Date under the DOCA (by which Completion must have occurred) is 30 November 2020,
or such later date as may be specified in a written notice issued by the Deed Administrators to the Creditors.
-
3
1 September 2020 or such later date as may be agreed. The letter is attached to
these submissions.
10. Draft orders reflecting that timetable are also attached to these submissions.
11. An expedited hearing would have the consequence that the interim relief sought in the
originating process, could be adjourned with liberty to apply.
12. The plaintiff therefore seeks orders as set out in the Annexure to these submissions.
6 August 2020
Philip Crutchfield
Elizabeth Boros
-
4
Annexure – Draft orders
No. VID 519 of 2020
Federal Court of Australia
District Registry: Victoria
Division: Corporations List
IN THE MATTER OF GASCOYNE RESOURCES LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 139 522 900)
HABROK MINING PTY LTD (ACN 632 753 989)
Plaintiff
GASCOYNE RESOURCES LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 139 522 900) AND OTHERS NAMED IN THE ATTACHED SCHEDULE 1
Defendants
ORDER
JUDGE: JUSTICE ANASTASSIOU
DATE OF ORDER: 7 August 2020
WHERE MADE: Melbourne
THE COURT ORDERS THAT:
1. The plaintiff file and serve any further affidavits and any expert report(s) by 4:00 pm on
10 August 2020.
2. The defendants (and any other interested party) file and serve any affidavits upon which
they intend to rely by 4:00 pm on 17 August 2020.
3. The plaintiff file and serve any affidavits in reply by 4:00 pm on 19 August 2020.
4. The plaintiff file and serve its contentions of fact and law by 4:00 pm on 21 August 2020.
5. The defendants (and any other interested party) file and serve their contentions of fact
and law by 4:00 pm on 24 August 2020.
6. The trial of the proceeding be listed for 26 August 2020 on an estimate of 2 days.
-
Arnold Bloch LeiblerLawyers and Advisers
6 August 2020
By email
Attention: Michael Ryan, lan Francis and Kathryn Warwick
Gascoyne Resources Limited(Subject to Deed of Company Arrangement)Level 1,41-47 Colin StreetWest Perth, Western Australian 6005
File No. 021914436
PartnerJustin VaatstraDirect61 [email protected]
Level 21
333 Collins Street
Melbourne
Victoria 3000Australia
www.abl.com.au
Mrrg0unrui
"qvn FJiY
e|
c/- FTI ConsultingLevel 47, Central Park152 - 158 St George TerracePerth WA 6000
PartnerLeon ZwierDirect 61 3 9229 [email protected]
Dear Sirs and Madam
Gascoyne Resources Limited (Subject to Deed of Gompany Arrangement) and its relatedentities (GCY Group)Federaf Gourt of Australia Proceeding No. VID 519 of 2020
As you know, we act for Habrok (Dalgaranga) Pty Ltd (Habrok), the plaintiff in the aboveproceeding.
We refer to our letters dated 4 August 2020 and to the first return date of the proceeding listedfor Friday, 7 August 2020.
Please advise whether you have appointed lawyers to represent the defendants and if so, who.
We are instructed as follows
As you are aware, our client seeks interim relief in its Originating Process that isintended to preserve the status quo pending the hearing and determination of theproceeding.
The interim relief is necessary to avoid irreparable prejudice to our client that wouldarise if the Deed of Company Arrangement in respect of the GCY Group companies(DOCA) is terminated by performance in accordance with its terms before theproceeding is determined with the consequence that the DOCA may no longer be ableto be set aside under s 445D o'f the Corporations Act 2001 (Cth).
This potential prejudice will be avoided if the proceeding is determined expeditiouslybefore the DOCA is effectuated and terminated by performance.
There are numerous conditions precedent that must be satisfied before the DOCAterminates and converts to creditors' trust, including the completion of the capital raiseand issue of shares to the creditors trust. According to the Explanatory Statement dated6 July 2020, the shares under the lnstitutional Entitlement Offer, Placement and Retail
1
2
ParlnoFlrark M Leibler ACHenry D Lanzor AM
Josph Boronszlajn AMLron ZwirrPhilip ChesterRoss A PatorenStephen L sharpK€nnelh A GrayKsvin F Frawloy
Zav€n Mardko$ianJonalhan M Wenig
Paul SokolowsliPaul Rubensteln
P6l6r M Seidol
John lVitchellBen Mahoney
Jonalhan MilnsrJohn lllengolianCarolins Gould6nl\.latlhew LeesGenoviove SexlonJeremy LeiblerNalhan Brin€r
Jonahan CaplanJustinVaalsfaClint Harding
Susanna Ford
Tyron€ l\4ccarlhyTerosa WadChrislin€ Fl€erJorcmy LanzerBridgel LitUs
Gia Cari
Ja$n van Gd6k6nElys HiltonJonalhan orlnerstephen LloydScottPhillipsGavin Hammsr$hlag
ConsulhntJanec sheridan
Special Counselsam DdllardLaila De l\4€loDamien CuddihyZoe ChungBarbara EellEmily Simmons
Sonlor A88o9i8tsrLiam Thomson
Eridgid Cowling
Brianna YoungsnRob€@a Zwi6rKaitilin Lowdon
Lara O'Rorke
stephanie CmpbdlClaire Stubbe
Briely TrollopoLaura CochraneDorian Honnoron
Rehd SohGreg Judd
B€n Friis-O'Tool€
Elly Bishop
Liam Cav€ll
Rapha€l Loibl€r
cabriel salkalP6l€r S@ttMa* MeraoDavid l,{onteilhElyss lrooreRsbekah FrenchGisllaD'costaLisa GarsonVldushee DeoraLuk€ JsdynakEmily KordaJenny Loongug
chris lvurphyGabilolle Piosi€wiczlllichael RepsAnna SapountsisJ€$ica Throrer
3
4
ABL/8159146v2
SXR�FreeTextAnnexure - Letter to Administrators�
-
5
Arnold Bloch LeiblerPage:2
Offer will not be issued until 1 September 2020. We also note that under the DOCA,the Deed Administrators have powers to extend the "Completion Date" and the "DueDate" by written notice issued to creditors.
ln order to narrow the issues in dispute and facilitate the just resolution of the disputeas quickly, inexpensively and efficiently as possible, our client makes the followingproposal to preserve the status quo and expeditiously progress the proceeding:
(a) that parties agree to the following timetabling directions to enable theproceeding to be heard and determined before 1 September 2020:
(i) by 4.00pm on 10 August 2020 the plaintiff file and serve any furtheraffidavits and any expert report(s);
(ii) by 4.00pm on 17 August 2020 the defendants (and any interestedparty) file and serve any affidavits;
(iii) by 4.00pm on 1 9 Augu sl 2020 the plaintiff file and serve any affidavitsin reply;
(iv) by 4.00pm on 21 August 2020 the plaintiff file and serve its outline ofsubmissions;
(v) by 4.00pm on 24 August 2020 the defendants (and any interestedparty) file and serve an outline of submissions;
(vi) the trial of the proceeding be listed for 26 August 2020 on estimate of2 days.
(b) that the defendants (ie the Administrators and the GCY Group companies)provide an undertaking that they will not issue or cause the GCY Groupcompanies to issue the shares to NRW and / or the trustees of the creditors'trust under the DOCA before 1 September 2020, or such later date as may beagreed.
These timetabling directions provide for the expeditious determination of theproceeding, preserve the status quo and minimise disruption. lf agreed, the applicationfor interim relief could be adjourned to the first day of the trial.
Please let us know if the defendants agree with the above proposed orders andundertaking as soon as possible and in any event by 12pm (AEST) on 6 August2020.
6
7
Yours faithfully
AD Justin VaatstraI I Partner
ABU8159146v2