RE NORTHERN TERRITORIES RESOURCES PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) [2026] WASC 229

[2026] WASC 229 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : RE NORTHERN TERRITORIES RESOURCES PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) [No 3] [2026] WASC 229 CORAM : HILL J HEARD : 8 MAY 2026 DELIVERED : 8 MAY 2026 PUBLISHED : 8 JUNE 2026 FILE NO/S : COR 192 of 2025 MATTER : IN THE MATTER OF NORTHERN TERRITORIES RESOURCES PTY LTD (ADMINISTRATORS APPOINTED) EX PARTE JARED TROY PALANDRI AS JOINT AND SEVERAL ADMINISTRATOR OF NORTHERN TERRITORIES RESOURCES PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) First Plaintiff RICHARD SCOTT TUCKER AS JOINT AND SEVERAL ADMINISTRATOR OF NORTHERN TERRITORIES RESOURCES PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) Second Plaintiff -- 1 of 9 -- [2026] WASC 229 Page 2 Catchwords: Corporations - External administration - Deed of novation and variation of funding agreement entered into by administrators - Application for orders relieving administrators of personal liability - Application for orders that administrators were justified in entering into deed of novation and variation - Turns on own facts Legislation: Corporations Act 2001 (Cth) pt 5.3A, s 443A, s 443D, sch 2 s 90-15 Result: Application granted Category: B Representation: Counsel: First Plaintiff : A Kaur Second Plaintiff : A Kaur Solicitors: First Plaintiff : Blackwall Legal LLP Second Plaintiff : Blackwall Legal LLP -- 2 of 9 -- [2026] WASC 229 Page 3 Case(s) referred to in decision(s): Mentha, Re Griffin Coal Mining Company Pty Ltd (Administrators Appointed) [2010] FCA 1469; (2010) 82 ACSR 142 Re Green Camel Pty Ltd [2024] NSWSC 1199 Re Northern Territories Resources Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) [2025] WASC 540 Re Northern Territories Resources Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) [No 2] [2026] WASC 46 Re Renex Holdings (Dandenong) 1 Pty Ltd (Administrators Appointed) [2015] NSWSC 2003 Secatore, Re Fletcher Jones and Staff Pty Ltd (Administrators Appointed) [2011] FCA 1493 -- 3 of 9 -- [2026] WASC 229 HILL J Page 4 HILL J: (This judgment was delivered extemporaneously and has been edited from the transcript to include references, headings and to correct matters of grammar and expression.) 1 On 4 December 2025 and 13 February 2026, I made orders in terms of the originating process that was filed in this matter extending the convening period of the Company's second creditors' meeting, and limiting the plaintiffs' personal liability in respect of an amended loan agreement that had been entered into by them. 2 On 5 May 2026, the plaintiffs filed an interlocutory process seeking orders in respect of a deed of novation and variation. At the same time, a certificate of urgency was filed certifying the application was of such an urgent nature that it was required to be listed and heard on or before 8 May 2026. On this basis, the interlocutory process was listed before me today on an urgent basis. 3 In support of the application, the plaintiffs relied on four affidavits of the first named plaintiff, Jared Troy Palandri, filed on 1 December 2025, 5 February 2026, and two dated 5 May 2026 (one open and one confidential). 4 I have also had the benefit of a written outline of submissions and brief oral submissions from counsel who has appeared before me this morning. Factual background 5 Most of the factual background to the application has been summarised in my two previous decisions in this matter.1 I do not intend to repeat those summaries, and have adopted the same definitions that are used in those reasons. Since these reasons have been delivered, the following developments have occurred. 6 On 13 March 2026, the plaintiffs were informed by a director of Gold Valley that Gold Valley would no longer continue to fund the company under the Amended Loan Agreement because it was focused on applying their resources to other projects.2 1 Re Northern Territories Resources Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) [2025] WASC 540; Re Northern Territories Resources Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) [No 2] [2026] WASC 46. 2 Open affidavit of Jared Troy Palandri filed 5 May 2026 [9(a)]. -- 4 of 9 -- [2026] WASC 229 HILL J Page 5 7 On 13 April 2026, the plaintiffs were informed that Gold Valley intended to appoint receivers and managers to the Company pursuant to cl 4 of the First Amendment Deed. On this date, the Company had cash at bank of approximately $130,000.3 8 Given these developments, the plaintiffs believed the Company urgently needed to secure new funding, in order to meet its immediate care and maintenance obligations for the Mine, and to preserve the Company's assets pending completion of the sales campaign.4 The plaintiffs sought and obtained expressions of interest from eight alternative financiers. Having considered these offers and expressions of interests, the plaintiffs formed the view that the proposed deed of novation and variation was the best available option for the Company as it was on the most favourable commercial terms and provided certainty.5 9 On 22 April 2026, the plaintiffs and the company entered into a deed of novation and variation (Novation and Variation Deed) with Gold Valley and Evolver Investments Pty Ltd (Evolver).6 An affiliate company of Evolver, Adriot CL Pty Ltd, has submitted a proposal for a deed of company arrangement (DOCA) in respect of the Company.7 10 Since receipt of the funds from Evolver, the plaintiffs' solicitors have paid Gold Valley the amount required by the terms of the Novation and Variation Deed, have paid employees and trade creditors of the Company, and paid their own outstanding fees. Mr Palandri's evidence is that these payments were made to preserve the assets of the Company, and to ensure that existing employees continue to be employed by the Company. Should orders be made to relieve the plaintiffs from personal liability? 11 The plaintiffs seek orders under s 447A of the Act to limit their personal liability under s 443A in respect of the Novation and Variation Deed. 12 Pursuant to s 443A of the Act, an administrator is personally liable for any debts they incur in the performance or exercise of their functions and powers as administrators. 3 Open affidavit of Jared Troy Palandri filed 5 May 2026 [9(c)] - [9(d)], 'JTP19'. 4 Open affidavit of Jared Troy Palandri filed 5 May 2026 [9(e)]. 5 Open affidavit of Jared Troy Palandri filed 5 May 2026 [10]. 6 Open affidavit of Jared Troy Palandri filed 5 May 2026 [8], 'JTP18'. 7 Open affidavit of Jared Troy Palandri filed 5 May 2026 [13]. -- 5 of 9 -- [2026] WASC 229 HILL J Page 6 13 Pursuant to s 443D of the Act, an administrator is entitled to be indemnified out of the company's property for the debts for which they are liable under s 443A. Where an administrator enters into a loan agreement, the loan and the interest payable on it are not considered to be a debt falling within the terms of s 443A of the Act, and the indemnity that is the subject of s 443D. For this reason, unless an order is made by the court under s 447A modifying the operation of pt 5.3A of the Act, the administrators will be personally liable for the loan and any interest payable on it. 14 It is well accepted that s 447A of the Act empowers the court to make orders limiting the personal liability of an administrator where it is satisfied the loan agreement is made for the purpose of allowing the company and administration to trade, or to continue operating for the benefit of creditors.8 15 Where these circumstances arise, courts have generally expressed the view that administrators should not be expected to expose themselves to substantial personal liabilities. Where orders are made relieving administrators from personal liability in respect of borrowings, the orders permit the administrators to make commercial decisions about the ongoing operations of the company under administration by focusing on what is in the best interest of creditors, without any influence of the concern as to their personal liability. 16 The factors the court takes into account on an application such as the one before me this morning were summarised by Gilmour J in Mentha, Re Griffin Coal Mining Company Proprietary Limited (administrators appointed),9 which I adopt without repeating those factors. 17 In this case, the key terms of the Novation and Variation Deed can be summarised as follows: (a) the plaintiffs have entered into the Novation and Variation Deed in their capacity as the joint and several administrators of the Company; (b) Evolver is substituted as the Company's lender under the same terms as the Amended Loan Agreement (subject to some variations); 8 Secatore, Re Fletcher Jones and Staff Pty Ltd (Administrators Appointed) [2011] FCA 1493. 9 Mentha, Re Griffin Coal Mining Company Pty Ltd (Administrators Appointed) [2010] FCA 1469; (2010) 82 ACSR 142 [30]. -- 6 of 9 -- [2026] WASC 229 HILL J Page 7 (c) Evolver has agreed to lend the Company $5,150,000, to be drawn in full by the Company in a single draw down; (d) of this, approximately $3,519,000 was used to repay Gold Valley's secured debt in full, and Gold Valley released and discharged the Company from all claims; and (e) an additional amount of $500,000 will be made by Evolver to the Company in specific circumstances. 18 On the basis of the evidence before me, I am satisfied it is appropriate to make the orders sought under s 447A of the Act for the following reasons. 19 First, I accept the purpose of the funding provided under the Novation and Variation Deed is to provide working capital for the administration, and to fund the continuing operation of the Company during the period of administration. Mr Palandri's evidence, which I accept, is that, without the funding, the Company will lack the resources to undertake the necessary care and maintenance of the Mine. If this were to cease, it is likely there will be a significant deterioration in the value of the Company's assets, potential contamination of the Mine, and surrounding third-party tenements, as well as an increase in claims against the Company. 20 Second, without this funding, I accept the plaintiffs would lack the financial resources to finalise the sales campaign, including any negotiations to cause the Company to enter into a DOCA, which is likely to deliver a better outcome to creditors than liquidation. 21 Third, I accept that orders can be made in respect of a loan agreement that has already been entered into,10 as is the case in the matter before me today. 22 Given these matters, I consider the proposed orders are consistent with the interests of creditors, and the objects of pt 5.3A of the Act. Should directions be given for approval to enter into the Novation and Variation Deed? 23 The plaintiffs also seek orders pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) (sch 2 of the Act) (IPS) 10 Re Green Camel Pty Ltd [2024] NSWSC 1199 [38]; Re Renex Holdings (Dandenong) 1 Pty Ltd (Administrators Appointed) [2015] NSWSC 2003 [14]. -- 7 of 9 -- [2026] WASC 229 HILL J Page 8 that they were justified in causing the Company to enter into the Novation and Variation Deed. 24 Pursuant to s 90-15(1) of the IPS, the court may make 'such orders as it thinks fit in relation to the external administration of the company'. The courts accept that this power is broad, and is at least as extensive as the powers formerly available to the court under s 479(3) and s 511 of the Act. 25 The principles which govern the exercise of the power under s 90-15 can be briefly summarised as follows: (a) the power to give advice is intended to facilitate external administrators' performance of their functions, and should be interpreted widely to give effect to that purpose; (b) the court may give a direction where it is just and beneficial to do so; (c) the function of the power is to give an external administrator advice as to the proper course of action to take in the external administration; (d) the court will not give a direction as to a matter of commercial or business judgment. There must be a legal issue of substance or procedure, including an issue of power, propriety or reasonableness; and (e) the power would generally not be used to determine substantive rights, or make binding orders, although it is now possible to do so. 26 As summarised above, Mr Palandri's evidence is that, without entry into the Novation and Variation Deed, the plaintiffs would not be able to fund the administration of the Company, undertake the necessary care and maintenance, or continue their sales campaign.11 27 I accept that, in the circumstances of this case, the direction sought by the plaintiffs goes to the reasonableness or propriety of the plaintiffs entering into the Novation and Variation Deed, and that it is appropriate to make the direction sought. 11 Open affidavit of Jared Troy Palandri filed 5 May 2026 [24]. -- 8 of 9 -- [2026] WASC 229 HILL J Page 9 Conclusion and orders 28 In relation to costs, the plaintiffs submitted the costs of the application should be costs in the administration of the Company, and paid from the assets of the Company. I accept that this is the appropriate costs order, given the nature of the application. 29 I also accept the form of the ancillary orders sought in terms of giving notice of the court's orders to creditors, and the allowance for any aggrieved party to apply to the court to vacate or vary these orders, protect the creditors of the Company from any possible prejudice arising from this ex parte application. 30 For these reasons, it is my view that it is appropriate to make orders in terms of the minutes of proposed orders filed 5 May 2026. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. KS Associate to the Hon Justice Hill 8 JUNE 2026 -- 9 of 9 --