GOLDUS PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) v TEETULPA GOLDFIELDS PTY LTD [2026] SASCA 44

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA; ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE HUGHES; HER HONOUR JUDGE THOMAS) [2025] SASC 67; ERD-24-000001 Applicant: GOLDUS PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) Counsel: MR N C DOUR - Solicitor: CANDICE SCOTT LEGAL Respondent: TEETULPA GOLDFIELDS PTY LTD Counsel: MR A M MATHAS - Solicitor: MATHASLAW Hearing Date/s: On the papers File No/s: CIV-25-007992 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. GOLDUS PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) v TEETULPA GOLDFIELDS PTY LTD [2026] SASCA 44 Judgment of the Court of Appeal (The Honourable President Livesey and the Honourable Justice Bleby) 28 April 2026 APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT ENERGY AND RESOURCES - MINERALS - MINING FOR MINERALS - DETERMINATION OF TITLES - FORFEITURE, CANCELLATION OR DETERMINATION CORPORATIONS - MANAGEMENT AND ADMINISTRATION - OFFICERS OF CORPORATION - DIRECTOR - APPOINTMENT - GENERALLY CORPORATIONS - VOLUNTARY ADMINISTRATION - PROTECTION OF COMPANY PROPERTY FROM PERSONS BOUND BY DEED OF COMPANY ARRANGEMENT Application for leave to appeal against two decisions, being a judgment of a single judge of the Supreme Court of South Australia and a subsequent ruling of a judge of the Environmental, Resources and Development Court of South Australia (‘ERD Court’). On 22 November 2023, an Auxiliary Warden of the Warden’s Court of South Australia delivered judgment on an application by the respondent (‘Teetulpa’) for an adjudication, pursuant to s 70(2) of the Mining Act 1971 (SA), that certain mining tenements held by the applicant (‘Goldus’) were liable to forfeiture to the Crown. -- 1 of 27 -- On 4 January 2024, Goldus appealed to the ERD Court pursuant to s 65(3) of the Mining Act. At a preliminary stage of that appeal, a judge of the ERD Court identified two potential issues. The first was whether Goldus had a duly appointed director such that it could prosecute the appeal. The second was whether the Deed of Company Arrangement (‘DOCA’) to which Goldus was subject prohibited creditors from making claims against the company without leave of the Supreme or Federal Court. The judge of the ERD Court referred the following two questions of law to the Supreme Court, pursuant to s 20A of the Environment, Resources and Development Court Act 1993 (SA): 1. Who is the duly appointed director of Goldus Pty Ltd (Subject to a Deed of Company Arrangement)? 2. Was leave required for the Warden’s Court Action, and is leave required for an Appeal, and are such actions, without leave, a nullity? The Supreme Court judge to whom those questions were referred determined that Goldus had not established that there was a duly appointed director of the company at the relevant time. As to the second question, the judge held that Teetulpa did not require leave of the Supreme or Federal Court to commence proceedings in the Warden’s Court. The Supreme Court judge having answered the two referred questions, the matter then returned to the ERD Court where Teetulpa filed an Interlocutory Application seeking an order that Goldus’ appeal be dismissed as incompetent under r 5A.6.1 of the Environment, Resources and Development Court Rules 2003 (SA). The ERD Court judge dismissed the appeal on the basis that it was incompetent. Goldus now seeks leave to appeal against the decision of the ERD Court judge and the decision of the Supreme Court judge. Held (by the Court), refusing leave to appeal: 1. The proposed grounds do not raise questions of general principle or importance or have sufficient prospects of success to warrant a grant of leave. 2. The administration of justice does not favour Goldus having the opportunity to agitate new arguments that it did not seek to prosecute on the original appeal in the ERD Court. Corporations Act 2001 (Cth) ss 126, 201M, 206B(3), 236(1), 444D, 444E, 444G, 1322; Environment, Resources and Development Court Act 1993 (SA) s 20A; Environment, Resources and Development Court Rules 2003 (SA) r 5A.6.1; Mining Act 1971 (SA) ss 15AB, 65(3), 70; Mining Regulations 2020 (SA) regs 62, 82; Uniform Civil Rules 2020 (SA) rr 212.5(2)(c)(iii), 213.1(1), 218.4, 218.13(2)(d), referred to. Southern Wire Pty Ltd v Clover Communications Pty Ltd [2023] SASCA 18, applied. PK Riddell Investments Pty Ltd v Onwards Up and Gone Pty Ltd (2024) 73 VR 219, discussed. BE Australia WD Pty Ltd v Sutton (2011) 82 NSWLR 336; Goldus Pty Ltd (Subject to a Deed of Company Arrangement) v Teetulpa Goldfields Pty Ltd [2025] SASC 67; Goldus Pty Ltd v Australian Mining Pty Ltd (Recs and Mgrs Apptd) [2023] FCAFC 27; Jones v Dunkel (1959) 101 CLR 298; Lehman Brothers Holdings Inc v City of Swan (2010) 240 CLR 509; M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27, considered. -- 2 of 27 -- GOLDUS PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) v TEETULPA GOLDFIELDS PTY LTD [2026] SASCA 44 Court of Appeal – Civil: Livesey P and Bleby JA 1 THE COURT: This is an application for leave to appeal against two decisions, being a judgment of a single judge of this Court, Hughes J,1 and a subsequent ruling of Thomas DCJ in the Environment, Resources and Development Court of South Australia (‘ERD Court’). Procedural history 2 This matter has already had a difficult history. The applicant (‘Goldus’) filed a Notice of Appeal against the decision of Hughes J on 6 June 2025. The matter was listed in a callover before Livesey P on 10 July 2025, at which time timetabling orders were made for the preparation of the appeal. Those orders included an order that the applicant file and serve an application for leave to appeal setting out the grounds on which leave was sought, by 4:00pm on Thursday, 24 July 2025. 3 The matter was then called over on 19 September 2025. Goldus had not filed an application for leave and was in default. It also sought to add a ground of appeal to challenge an order of Thomas DCJ in the ERD Court that was consequent on the judgment under appeal. On 19 September 2025, Livesey P referred that application to the hearing of the appeal and ordered that the applicant was to serve its application for leave on the respondent within the next 48 hours. Goldus was also given leave to serve any proposed amended Notice of Appeal by 4:00pm on Friday, 17 October 2025. 4 The applicant filed an Interlocutory Application seeking leave to appeal on 29 September 2025. 5 On 10 October 2025, Livesey P called the matter on for directions. On that occasion, counsel for Goldus, who had only recently been briefed, acknowledged the necessity of amending the Notice of Appeal, and that Goldus was required to seek leave to appeal on the proposed amended grounds. On that occasion, Livesey P indicated that the Court was prepared to allow incorporation of the appeal against the ruling of Thomas DCJ, and that leave may be required in that regard also. 6 On 17 October 2025, Goldus applied for leave to file and rely on Amended Appeal Grounds (Revision 2). These proposed amended appeal grounds incorporated challenges to the ruling of Thomas DCJ. 1 Goldus Pty Ltd (Subject to a Deed of Company Arrangement) v Teetulpa Goldfields Pty Ltd [2025] SASC 67. -- 3 of 27 -- [2026] SASCA 44 The Court 2 7 On 20 October 2025, Goldus filed an Interlocutory Application seeking to vacate the hearing date. President Livesey called the matter on the following day. He dismissed the Interlocutory Application. He adjusted the date for Goldus to file and serve any Notice of Appeal, amended grounds of appeal, written submissions, chronology and list of authorities to 4:00pm Monday, 27 October 2025. He adjourned the matter to a callover before Bleby JA on Tuesday, 28 October 2025 and indicated the listed date for the appeal would remain. 8 On 27 October 2025, Goldus filed a proposed Amended Notice of Appeal (Revision 3). This purported, among other things, to add a third decision to the decisions appealed against. It also asserted that leave to appeal was not required. Goldus did not file an application for an extension of time or any affidavit supporting the application to include an appeal against what was a different decision made two years earlier. 9 Justice Bleby called the matter on for directions on 28 October 2025. He ordered Goldus to file an electronic copy of the appeal book by 5:00pm on Thursday, 30 October 2025 and three physical copies of the appeal book by 5:00pm on Friday, 31 October 2025. 10 The applicant did not comply with those orders. On 31 October 2025, somebody called Tony Tong, apparently an employee of a different company, emailed the Registry with a link to what was asserted to be the electronic appeal book. Sending a link to the Registry does not constitute filing an appeal book in electronic form. The person then sent as many as 14 emails, attaching sections of the appeal book. The Registry declined to accept the core appeal book as it did not comply with r 218.4 of the Uniform Civil Rules 2020 (SA). 11 The appeal book was deficient in numerous respects. Nevertheless, on the same day, the applicant filed a solicitor’s certificate signed by Mr Cam Ly, who was then the applicant’s solicitor. The certificate was not filed as part of the core appeal book as required by the Uniform Civil Rules. It purported to certify that the appeal books had been examined and prepared in accordance with the Uniform Civil Rules and were accurate and complete. That certification was contradicted by the state of the appeal books which were manifestly and egregiously non-compliant with the Uniform Civil Rules. 12 On 31 October 2025, Bleby JA struck out the Notice of Appeal pursuant to rr 212.5(2)(c)(iii) and 218.13(2)(d) of the Uniform Civil Rules and vacated the hearing date for the appeal. 13 On 21 November 2025, Goldus filed an Interlocutory Application to reinstate the Amended Notice of Appeal, subject to certain paragraphs being struck through, and applying for leave to file and serve amended grounds of appeal. On 5 February 2026, the respondent (‘Teetulpa’) filed an Interlocutory Application seeking to summarily dismiss the appeal or, in the alternative, seeking directions with respect to the prosecution of the appeal. -- 4 of 27 -- [2026] SASCA 44 The Court 3 14 On 17 March 2026, after hearing argument, Bleby JA made the following orders: 1. The applicant’s application for reinstatement (FDN 32) is granted on the condition that the applicant prosecute an application for leave to appeal in terms of the clean version of the Amended Notice of Appeal Revision 3 annexed to FDN 33 (Exhibit ST1, pp7-9). 2. The respondent’s application for summary dismissal (FDN 43) is dismissed. 3. The applicant is to file and serve written submissions in support of its application for leave to appeal in accordance with UCR r 213.5(2)(a), attachments to those written submissions in accordance with UCR r 213.5(2)(b) and three physical copies of an application book in accordance with UCR r 213.5(2)(c) by close of business on Tuesday, 31 March 202[6]. 4. The Court will determine the application for leave on the papers. 5. The costs of and incidental to the application for reinstatement and the application for summary dismissal are to be the respondent’s costs in the cause. 15 This is the determination of the application for leave. The decisions subject to challenge 16 On 22 November 2023, an Auxiliary Warden of the Warden’s Court of South Australia delivered judgment on an application by Teetulpa for an adjudication, pursuant to s 70(2) of the Mining Act 1971 (SA) (‘the Act’), that certain mining tenements held by Goldus were liable to forfeiture to the Crown. The Auxiliary Warden found, amongst other findings, that Goldus had breached the Act and the Mining Regulations 2020 (SA), had breached a term or condition of its tenements and that its breaches caused undue damage to the environment. He then found that following forfeiture by Goldus, Teetulpa was a suitable entity to have the tenements issued in its name. 17 On 4 January 2024, Goldus appealed to the ERD Court pursuant to s 65(3) of the Act. At a preliminary stage of that appeal, a judge of the ERD Court identified that Goldus was subject to a Deed of Company Arrangement (‘DOCA’) that prohibited creditors from making claims against Goldus without leave of the Supreme or Federal Court. No leave had been granted by a court for the Warden’s Court action or the appeal to proceed. The parties were divided on whether, for the purposes of the Warden’s Court action, Teetulpa was bound by the DOCA by reason of an agency relationship said to exist between Teetulpa and Australian Mining Pty Ltd (Receivers and Managers Appointed) (‘Australian Mining’), a creditor bound by the DOCA. Further, it appeared that the affairs of Goldus, including the provision of instructions to solicitors for the conduct of the appeal, were being managed by Goldus’ former director Mr John Hillam, who was an undischarged bankrupt and therefore unable to hold any directorship or participate -- 5 of 27 -- [2026] SASCA 44 The Court 4 in the management of the company.2 A dispute arose as to whether Mr Hillam’s wife, Ms Sarobol Teeranukul, had been validly appointed as a director of Goldus and if so, whether that appointment had been revoked by Goldus’ creditors. 18 The ERD Court judge, Thomas DCJ, referred the following two questions to the Supreme Court, pursuant to s 20A of the Environment, Resources and Development Court Act 1993 (SA): Q1. Who is the duly appointed director of Goldus Pty Ltd (Subject to a Deed of Company Arrangement)? Q2. Was leave required for the Warden’s Court Action, and is leave required for the Appeal, and are such actions, without leave, a nullity? 19 The present application for leave to appeal is concerned, in the first instance, with the judgment of Hughes J answering these questions.3 The determination of the questions by Hughes J 20 Justice Hughes noted the following matters of common ground:4 • Goldus was authorised, pursuant to various mining licences issued under the Act, to conduct mining operations on certain tenements in the Teetulpa Goldfields, near Yunta in the Flinders Ranges of South Australia.5 • In 2012, Goldus and another company, Australian Mining Pty Ltd (Receivers and Managers Appointed) (‘Australian Mining’), entered into a joint venture agreement to carry out exploration and mining operations on the tenements for alluvial gold and other minerals.6 • Goldus became embroiled in dispute with Australian Mining.7 This led to litigation over the assets of the joint venture: Goldus Pty Ltd v Australian Mining Pty Ltd [2015] SASC 32; Goldus Pty Ltd (Subject to a DOCA) v Cummins (No 4) (2021) 157 ACSR 118;8 Goldus Pty Ltd v Australian Mining Pty Ltd (Recs and Mgrs Apptd) [2023] FCAFC 27; RnD Funding Pty Ltd v Roncane Pty Ltd (2023) 297 FCR 91. • Goldus went into voluntary administration in October 2017. Goldus’ appointed administrators were Mr Christopher Powell and Mr Stephen Duncan. • On 14 October 2019, Mr Hillam became Goldus’ sole director. • Goldus became subject to a DOCA on 11 May 2018. The relevant date for the effect of the DOCA is 17 September 2017. • Teetulpa was incorporated on 26 February 2021. 2 Corporations Act 2001 (Cth) s 206B(3). 3 [2025] SASC 67. 4 [2025] SASC 67 at [9]. 5 The Warden’s Court Action (n 1) [10]. 6 Ibid [13]. 7 Ibid [14]. 8 (‘Goldus No 4’). -- 6 of 27 -- [2026] SASCA 44 The Court 5 • Teetulpa and Australian Mining are not related companies for the purpose of the Corporations Act 2001 but share common directors.9 • Teetulpa is the sole shareholder of Australian Mining. • Australian Mining is controlled by RND Funding Pty Ltd. (Footnotes in original.) 21 On the question of the duly appointed director of Goldus, Goldus’ case was that Ms Teeranukul was appointed as a second director of Goldus at a duly convened meeting of the company on 29 August 2023 and became its sole director on 15 December 2023. Teetulpa’s case was that Goldus had not established that Ms Teeranukul had been appointed at all. 22 Goldus relied on an affidavit of Ms Teeranukul affirmed on 6 August 2024, which included evidence to the effect that at a meeting on 29 August 2023, it was resolved that she would be appointed as an additional director of Goldus from that date. Ms Teeranukul annexed to the affidavit a register of officers containing two entries, being Mr Hillam’s appointment on 14 October 2019 and her own on 29 August 2023. It contained no other information about her appointment. Goldus adduced no evidence about the gap in time between that date and the notification to the Australian Securities and Investments Commission (‘ASIC’) of the change of directorship, which occurred on or about 18 December 2023. 23 Ms Teeranukul gave evidence by video link. She was assisted by a Thai interpreter when necessary. At the commencement of her evidence, Mr Hillam was requested not to assist Ms Teeranukul with her evidence, or to be in the same room as her. Ms Teeranukul was cross-examined on an affidavit of February 2024, that had been relied on in the ERD Court, in which she gave evidence that her appointment as a director of Goldus became effective ‘on or around 15 December 2023’. 24 In the course of cross-examination, it became apparent that Mr Hillam was in the room with Ms Teeranukul. 25 Justice Hughes found that Ms Teeranukul’s answer, in response to being asked why her February 2024 affidavit did not refer to a date in August 2023, was unresponsive and that she did not explain in her later affidavit why she said she was appointed on 29 August 2023. 26 An extract from the ASIC companies register provided some support for the proposition that Ms Teeranukul was holding herself out as a director and/or secretary by 6 December 2023, but Hughes J held it was insufficient to establish ‘with any certainty’ that any action had taken place prior to that date of her 9 CB 139. A “related entity” under the DOCA means an entity that is related for the purposes of the s 5 Bankruptcy Act 1966 which relevantly adopts the definition within the Corporations Act 2001. -- 7 of 27 -- [2026] SASCA 44 The Court 6 appointment to those offices any earlier. Justice Hughes concluded with respect to Ms Teeranukul’s evidence:10 Ms Teeranukul’s evidence – in affidavit form and orally - did not provide the Court with confidence that she was being truthful regarding attending a company meeting on 29 August 2023. She gave no detail of the meeting. There was no adequate explanation of what happened, if anything, at a coffee shop, and what happened, if anything, at the offices at 80 Pyrmont Street. Even taking into account that the witness was not speaking in her first language, she did not give the impression of a person speaking from memory. Further, giving due allowance for any difficulty she may have had expressing herself, she was unresponsive to questions that afforded her an opportunity to satisfy the Court about the events of 29 August 2023, whilst at the same time determined to repeat whenever the opportunity arose that she is a director of Goldus and has been since 29 August 2023. Ms Teeranukul’s affidavit evidence did not provide any explanation as to why she was appointed to be a second director at that particular time, although in her oral evidence she suggested that it was because of Mr Hillam’s illness which necessitated overnight hospitalization. Nor did Ms Teeranukul refer to any decisions or actions she has taken as director since her appointment. 27 Teetulpa also relied on other evidence. In the Warden’s Court action, it had relied on an affidavit of Mr Hillam dated 31 August 2023, in which he described himself as ‘the director’ of Goldus. Then in an affidavit of 18 October 2023, Mr Hillam again described himself in those terms. Paragraph 7 of that affidavit described him as the ‘sole director and company secretary’ of Goldus. 28 Mr Hillam did not give evidence. Justice Hughes found that his evidence would not have assisted Goldus. She was also more inclined to draw that adverse inference in circumstances where it was open on Ms Teeranukul’s evidence to infer that Goldus did not appoint her as a director on 29 August 2023.11 29 Justice Hughes concluded:12 Having weighed the evidence that was before the Court and having considered the proof that was within Goldus’ power to produce, I am not satisfied that Sarobol Teeranukul was appointed as a director of Goldus on 29 August 2023 at a duly convened meeting of the company, in the manner required by the Corporations Act 2001. I am unable to find that Ms Teeranukul was appointed as a director at all. It is possible that she was appointed at a duly convened meeting that occurred in December 2023, but as there is no evidence of such a meeting before the Court, I am not able to make such a finding even on the balance of probabilities. I cannot make a positive finding on the balance of probabilities of the existence of a director of Goldus after 15 December 2023. 30 Justice Hughes found that Mr Hillam was the sole director of Goldus from his appointment until his bankruptcy on 15 December 2023. She held that there 10 [2025] SASC 67 at [74]-[75]. 11 [2025] SASC 67 at [83]. 12 [2025] SASC 67 at [85]-[87]. -- 8 of 27 -- [2026] SASCA 44 The Court 7 was insufficient evidence before the Court that Ms Teeranukul was made a director of Goldus at any time.13 Teetulpa had abandoned its alternative argument, that Ms Teeranukul’s appointment was revoked by creditors. 31 The second question was whether Teetulpa required leave to commence the proceedings in the Warden’s Court. Goldus raised for the first time on the ERD Court appeal that the Warden’s Court action was irregular and a nullity. It had not raised this argument in the Warden’s Court. Justice Hughes identified that this question required consideration of Part 5.3A of the Corporations Act 2001 (Cth) (‘Corporations Act’), in particular ss 444D, 444E and 444G, and of the Goldus DOCA, cl 10 of which provided, relevantly: … 10.2 During the period of this deed, each Creditor, must not: 10.2.1 make or proceed with any application for an order to wind up the Company; 10.2.2 without the leave of the Court, and then, only in accordance with such terms as the Court imposes: 10.2.2.1 Begin or proceed with a proceeding against the Company or in relation to any of the Company’s property or property used or occupied by, or in the possession of, the Company, either in court or in any arbitration; 10.2.2.2 begin or proceeding with any enforcement process in relation to any of the Company’s property, or property used or occupied by, or in the possession of, the Company; 10.2.3 exercise any right of set-off to which the Creditor would not have been entitled had the Company been wound up with the Relevant Date being the day on which the winding up was taken to have begun. 10.3 During the period of this deed, the Company, including its members and its officers must not make or proceed with any application for an order to wind up the Company and the Company must take steps to ensure this. 10.4 Nothing in this clause limits the operation of section 444D(2) or section 444D(3) of the Act. 10.5 This clause has effect in addition to, and not in derogation of, section 444E of the Act. 32 The parties to the DOCA are Goldus, Mr Hillam, Courela Minerals Pty Ltd, Sathya Holdings Pty Ltd, Australian Mining and the appointed administrators. 13 [2025] SASC 67 at [88]. -- 9 of 27 -- [2026] SASCA 44 The Court 8 33 Justice Hughes adopted the statement of the relationship between the Corporations Act and the DOCA in Goldus Pty Ltd v Australian Mining Pty Ltd (Recs and Mgrs Apptd).14 She noted that s 444D(1) of the Corporations Act:15 … binds “all creditors of the company, so far as concerns claims arising on or before the day specified in the deed …”. The section as a whole makes is [sic] clear that creditors are bound in respect of claims against the assets of the company that may be the subject of a proof of debt. (Emphasis in original.) 34 Justice Hughes then turned to s 444E, which provides: 444E Protection of company’s property from persons bound by deed (1) Until a deed of company arrangement terminates, this section applies to a person bound by the deed. (2) The person cannot: (a) make an application for an order to wind up the company; or (b) proceed with such an application made before the deed became binding on the person. (3) The person cannot: (a) begin or proceed with a proceeding against the company or in relation to any of its property; or (b) begin or proceed with enforcement process in relation to property of the company; except: (c) with the leave of the Court; and (d) in accordance with such terms (if any) as the Court imposes. (4) In subsection (3): property of a company includes: (a) any PPSA retention of title property of the company; and (b) any other property used or occupied by, or in the possession of, the company. Note: See sections 9 (definition of property) and 51F (PPSA retention of title property). 14 [2023] FCAFC 27 at [79]-[88], cited in [2025] SASC 67 at [101]. 15 [2025] SASC 67 at [103]. -- 10 of 27 -- [2026] SASCA 44 The Court 9 35 There was a dispute over whether s 444E acted as a complete bar to all proceedings by a creditor against the company, or only proceedings in respect of debts or claims covered by the DOCA. Justice Hughes held that ‘the better view’ was that any moratorium imposed by a DOCA was limited to claims and debts which existed at the relevant date:16 This is consistent with the purpose of a DOCA which is to provide an arrangement that creditors accede to in lieu of liquidation of the company. 36 On the question of whether Teetulpa was bound by the DOCA, and thereby unable to bring the action in the Warden’s Court, Hughes J framed the dispute as follows:17 The DOCA binds creditors concerning claims arising on or before the relevant date. A creditor is defined under the DOCA as a person who has a debt payable by or claim against Goldus, the circumstances giving rise to which occurred on or before the relevant date (9 October 2017). Goldus concedes that Teetulpa was not a creditor bound by the DOCA. It was incorporated on 26 February 2021. It does not have claims arising on or before the relevant date, being 9 October 2017. Goldus contended that Australian Mining is a creditor bound by the DOCA, and that Teetulpa should be found by the Court to be bound by the DOCA for the purposes of the Warden Court’s Action because the action was brought by Teetulpa as an agent of Australian Mining. Goldus contended that the circumstances of the common directors between the two companies, and the interconnectedness of their activities and purposes, were such that it would be an abuse of process if the requirement for leave were not applied to Teetulpa. (Footnotes omitted.) 37 As to whether Australian Mining was a creditor in the relevant sense, Teetulpa conceded that Australian Mining had claims arising prior to the relevant date and, in that sense, was a creditor of Goldus for the purposes of the DOCA. Justice Hughes held, first, that whether Australian Mining was prohibited from bringing any claim against Goldus without leave, or was only prohibited in respect of claims arising before the relevant date, was ultimately not determinative. This was because she concluded that Australian Mining did not bring a claim through Teetulpa and the proceedings did not constitute a claim at all.18 38 On the question of whether Teetulpa brought the Warden’s Court action as the agent of Australian Mining, Goldus asserted that the circumstances of interconnectedness between those two companies, and their common purposes, were such that it would be an abuse of process not to require Teetulpa to obtain a 16 [2025] SASC 67 at [105]. 17 [2025] SASC 67 at [106]-[109]. 18 [2025] SASC 67 at [115]. -- 11 of 27 -- [2026] SASCA 44 The Court 10 grant of leave before proceedings.19 Goldus later relied on an implied agency contention. 39 Justice Hughes noted that Goldus did not lead any evidence supporting the proposition that Australian Mining was the ‘true party’ to the action.20 Goldus only ventilated the implied agency argument orally after written submissions were closed and Goldus was no longer legally represented.21 Justice Hughes noted that both Australian Mining and Teetulpa were involved in the use of the tenements. However, when Mr Hillam cross-examined Mr Joe Nakat, a director and shareholder of Teetulpa, in the Warden’s Court proceedings, he did not put to him that Teetulpa was the agent of Australian Mining for the purposes of the proceedings.22 40 Justice Hughes found that there was no evidence of any agency agreement between the two companies. While Teetulpa accepted that the bringing of the Warden’s Court action was ‘opportunistic’, it denied the existence of any agency. 41 Justice Hughes concluded with respect to Goldus’ contention of agency:23 Significantly, and unaddressed by Goldus, is the fact that the legal benefit of the recommendation by the Auxiliary Warden as to suitability to assume the tenements flows to Teetulpa, not Australian Mining. The tenements may not be transferred further – for example to Australian Mining - without the Minister’s agreement.24 For the reasons given above, the conclusion that no agency agreement could be implied from the material that is before the Court, is inescapable. The implied agency agreement contention is misguided. That is not to say that Australian Mining will not benefit from the outcomes of the Warden’s Court Action, but the contention that the Warden’s Court Action must be understood, in a legal sense, to have been prosecuted by Australian Mining, has not been established. (Footnote in original.) 42 Justice Hughes concluded that the contention that Teetulpa was bound by the DOCA, by this means of agency, failed.25 She then turned to the alternative version of the argument, which is that it would be an abuse of process to allow Teetulpa to take the benefit of the Auxiliary Warden’s recommendation in circumstances where Australian Mining had effectively engineered a way to avoid the moratorium imposed by the DOCA and had failed to identify itself as the true party to the action.26 As to this, she concluded:27 19 [2025] SASC 67 at [117]. 20 [2025] SASC 67 at [119]. 21 [2025] SASC 67 at [120]. 22 [2025] SASC 67 at [123]. 23 [2025] SASC 67 at [126]-[127]. 24 Mining Act 1971 s 15AB. 25 [2025] SASC 67 at [128]. 26 [2025] SASC 67 at [129]. 27 [2025] SASC 67 at [131]-[132]. -- 12 of 27 -- [2026] SASCA 44 The Court 11 It appears that Goldus’ contention is that, even without Teetulpa applying for permission, or Goldus asserting a bar on proceedings, the Warden’s Court in an exercise of inherent jurisdiction ought to have stayed the Warden’s Court Action upon it becoming apparent that Australian Mining was using Teetulpa to conduct the proceeding improperly. Given that the action proceeded without consideration of this issue, this may be apt as a point for ventilation on appeal rather than on this referral. It is not necessary, therefore, to venture to a consideration of whether the Warden had any inherent power to stay the proceedings in the exercise of powers under s 70 of the Act. I do not consider that the abuse of process contention assists in the answering of the referred question. 43 Finally, Hughes J held that the Warden’s Court action was not a ‘claim’ against Goldus in the sense envisaged by the Corporations Act and the DOCA. In the first instance, she noted and emphasised parts of cl 11 of the DOCA: 11. Bar to creditors' claims Subject to section 444D of the Act, this deed may be pleaded by the Company against any Creditor in bar of any debt or claim that is admissible under this deed and a Creditor (whether the Creditor's debt or claim is or is not admitted or established under this deed) must not, before the termination of this deed: 11.1.1 take or concur in the taking of any step to wind up the Company; or 11.1.2 except for the purpose and to the extent provided in this deed, institute or prosecute any legal proceedings in relation to any debt incurred or alleged to have been incurred by the Company before the Relevant Date; or 11.1.3 take any further step (including any step by way of legal or equitable execution) in any proceedings pending against or in relation to the Company at the Relevant Date; or 11.1.4 exercise any right of set-off or cross-action to which the Creditor would not have been entitled had the Company been wound up at the Relevant Date; or 11.1.5 commence or take any further step in any arbitration against the Company or to which the Company is a party. (Emphasis added by the judge.) 44 Justice Hughes considered the meaning of the term ‘claim’ in the insolvency context, as distinct from the ordinary legal context.28 In PK Riddell Investments Pty 28 [2025] SASC 67 at [135]-[138], referring to Lehman Brothers Holdings Inc v City of Swan (2010) 240 CLR 509 at [38] (French CJ, Gummow, Hayne and Kiefel JJ), BE Australia WD Pty Ltd v Sutton (2011) 82 NSWLR 336 at [105] (Campbell JA), PK Riddell Investments Pty Ltd v Onwards Up and Gone Pty Ltd (2024) 73 VR 219 at [78] (Waller J). -- 13 of 27 -- [2026] SASCA 44 The Court 12 Ltd v Onwards Up and Gone Pty Ltd,29 Waller J summarised the authorities and said:30 These authorities confirm that the claims that may be compromised by a deed of company arrangement are those that have a basis, founded on an existing legal right, for asserting a right to participate in the division of the company’s assets. The reference to ‘a right to participate in the division of the company’s assets’ indicates that the claims that may be compromised by a deed of company arrangement are in the nature of monetary claims or at least something that may be valued and taken into account in a winding up or other administration that is under way … 45 Justice Hughes concluded that it was evident that a ‘claim’ in the sense used in the DOCA was an assertion by the claimant of an entitlement, being one that arose before the relevant date, to some portion of the property of the company. However, Teetulpa had not sought and obtained an order in respect of a debt payable by Goldus concerning a ‘claim’ against Goldus for the purposes of the DOCA:31 Rather, the proceedings were an application for an adjudication of Goldus’ liability to forfeit certain rights to the Crown. 46 Justice Hughes then reviewed the scheme in s 70 of the Act to conclude that proceedings under that section were not a ‘claim’ in the sense used in Part 5.3A and the DOCA:32 The scheme in s 70 of the Mining Act may be summarised as follows: • The applicant must meet certain criteria to bring a proceeding under s 70, as set out in regulation 62.33 • Those criteria do not include establishing that the applicant is or is not a creditor of that person or whether the applicant has any existing right or interest in the property of the person in relation to whom the proceedings are brought. • Upon concluding that the applicant meets the criteria to commence the proceedings, the Warden is tasked with an adjudication as to whether a specified tenement is liable to forfeiture by the respondent.34 • The adjudication is determined by reference to whether the respondent has breached the Act or the conditions of the tenement, or has otherwise met the criteria of s 70(2b). • Where the Warden finds the tenement liable to forfeiture, it may be transferred to the Crown.35 29 (2024) 73 VR 219. 30 PK Riddell Investments Pty Ltd v Onwards Up and Gone Pty Ltd (2024) 73 VR 219 at [78]. 31 [2025] SASC 67 at [140]. 32 [2025] SASC 67 at [141]-[142]. 33 Mining Regulations 2020. 34 Mining Act 1971 s 70(2). 35 Ibid s 70(3)(a). -- 14 of 27 -- [2026] SASCA 44 The Court 13 • By operation of the statute, the applicant is entitled to have the Crown transfer the tenement to it for the balance of the term of the tenement.36 Proceedings under s 70 are not a ‘claim’ in the sense intended by Part 5.3A of the Corporations Act 2001 or the DOCA. They do not concern any existing liability by the respondent to the applicant. The proceedings seek to establish a basis for forfeiture. There need be no relationship between an applicant under s 70 and the respondent. The applicant must merely consider that it can establish that the respondent has acted in a manner that warrants forfeiture, and that it can establish suitability to inherit the tenements. (Footnotes in original.) 47 Justice Hughes concluded that Teetulpa did not need the leave of the Court under Part 5.3A to commence the Warden’s Court action. 48 Justice Hughes answered the two referred questions as follows: Q1. Who is the duly appointed director of Goldus Pty Ltd (Subject to a Deed of Company Arrangement)? Answer: It has not been established that there is a duly appointed director of Goldus Pty Ltd. Q2. Was leave required for the Warden’s Court Action, and is leave required for the Appeal, and are such actions, without leave, a nullity? Answer: Teetulpa did not require leave of the Court under Part 5.3A of the Corporations Act 2001 to commence the Warden’s Court Action. As to the second part of the question, it is not necessary to answer. The ERD Court decision 49 Justice Hughes having answered the two referred questions, the matter then returned to the ERD Court. On 30 May 2025, Teetulpa filed an Interlocutory Application seeking an order that Goldus’ appeal be dismissed as incompetent under r 5A.6.1 of the Environment, Resources and Development Court Rules 2003 (SA). The Interlocutory Application cited the judgment of Hughes J to the effect that it was not established that there was a duly appointed director of Goldus at the time of the commencement of the proceedings. The Grounds then asserted: C. As at the time of the filing of the Notice of Appeal, the applicant did not have a director so that the filing of the notice of appeal was without its authority and therefore incompetent. 50 Teetulpa’s Interlocutory Application also asserted that Goldus’ appeal was out of time. It is not necessary to address that aspect of the application here. 51 The solicitor for Teetulpa, Mr Angelos Mathas, filed an affidavit in support of the Interlocutory Application 30 May 2025 (FDN 64). Mr Mathas noted that Goldus’ Notice of Appeal (FDN 1) had been signed by ‘John Hillam’, who stated 36 Ibid s 70(3)(b). -- 15 of 27 -- [2026] SASCA 44 The Court 14 that he was ‘Director of Goldus Pty Ltd’. The affidavit also exhibited an extract from the National Personal Insolvency Index identifying Mr Hillam as being an undischarged bankrupt. The affidavit referred to the decision of the single judge on the first question reserved, to the effect that the Court was not satisfied that there was a duly appointed director of Goldus at the time of filing the Notice of Appeal (FDN 1). 52 Goldus relied on six affidavits in opposition to Teetulpa’s Interlocutory Application: • Affidavit of John Hillam affirmed 24 June 2025 (FDN 67). In this affidavit, Mr Hillam asserted he was a director of Goldus until 15 December 2023 and that the appeal was authorised by him as a director of Goldus prior to that date; • Affidavit of Anton Margitich affirmed 24 June 2025 (FDN 68). This affidavit appeared to be concerned with the issue of the timing of the filing of the Notice of Appeal; • Affidavit of Sarobol Teeranukul affirmed 1 July 2025 (FDN 69). This affidavit asserted that Ms Teeranukul was a director of Goldus. It was partly concerned with the timing issue. As to the question of Ms Teeranukul’s directorship, the affidavit contradicted the finding of Hughes J: 4. With respect to the judgement made on 16 May 2025 by Justice Hughes whether I am/was a duly appointed director of Goldus Pty Ltd (subject to a Deed of Company Arrangement), I refer to on 29 August 2023, I was nominated by Mr. Hillam and accepted in writing to become the second director of 10 companies in which Mr. Hilam [sic] was also a director. The group of companies included Goldus Pty Ltd. (see ST10 page 54-74 for ASIC records). 5. I also have filed a Notice of Appeal on behalf of the company and paid filing fee on 19 June 2025 to appeal against the decision made by Justice Hughes made on 16 May 2025 … Judge Thomas struck out these paragraphs as inadmissible, on the basis that she was bound by Hughes J’s conclusion as to the existence of a duly appointed director of Goldus at the relevant time. • Affidavit of Sarobol Teeranukul affirmed 6 February 2024 (FDN 4). In paragraph 1 of this affidavit, Ms Teeranukul asserted she was the director of Goldus. Judge Thomas struck out the paragraph on the basis that it was contradicted by the decision of Hughes J. She also struck out paragraph 4 of that affidavit on the basis that it constituted a submission. That and the balance of the affidavit were not relevant to the question of the directorship of Goldus; -- 16 of 27 -- [2026] SASCA 44 The Court 15 • Affidavit of Sarobol Teeranukul affirmed 6 February 2024 (FDN 8). Paragraph 1 asserted that Ms Teeranukul was the sole director and secretary of Goldus. Judge Thomas struck this paragraph out on the same basis. No other paragraph was relevant to the question of the directorship of Goldus; • Affidavit of Sarobol Teeranukul affirmed 9 February 2024 (FDN 10). Judge Thomas received the affidavit. No part of the affidavit concerned the question of the directorship of Goldus. 53 Goldus filed written submissions in opposition to Teetulpa’s Interlocutory Application. On the topic of the directorship of Goldus, the written submissions said only the following: 10. The Supreme Court answered question 1 by stating that “It has not been established that there is a duly appointed director of [Goldus]”. Goldus has lodged an appeal in the SA appellate court concerning this claim, which is Goldus Submits, which was an error in the judgement. 11. Goldus relied on the affidavit made by Sarobol Teeranukul dated 1 July 2025 and evidence shown in the ASIC records confirming that Sarobol was/is a duly appointed director of 10 companies since August 2023. See Sarobol Affidavit dated 1 July 2025, paragraph 4. 54 It is necessary to have some regard to what transpired at the hearing. At the outset, Thomas DCJ raised with Mr Ly, who was appearing for Goldus, that she was bound by the decision of Hughes J to the effect that there was no validly appointed director of Goldus after Mr Hillam’s disqualification on 15 December 2023. Mr Ly submitted that Goldus ‘maintain[ed] that Ms Teeranukul is duly appointed as director as evidenced by the ASIC record’. Judge Thomas clarified that Mr Ly was referring to the results of an ASIC search and expressed the view that this was not conclusive evidence of an appointment. Rather, those search results only meant that someone had lodged a form to notify ASIC of their directorship. She said to Mr Ly that it was incumbent on Goldus to prove that Ms Teeranukul was a duly appointed director. She indicated that this was relevant to whether Mr Ly had authority to appear: And underlying that matter is then the question that is the subject of dispute and argument this morning, which is about whether the appeal is incompetent for want of authority of a director at the time of filing, which is disputed, but it doesn’t end there. 55 Judge Thomas went on to express the concern that there was no evidence before her that Ms Teeranukul was a duly appointed director. Mr Ly said the reason he had not addressed that issue was that Hughes J’s decision was the subject of an appeal to the Court of Appeal. The judge intimated to Mr Ly that she did not regard a submission that the decision of Hughes J was wrong to amount to a valid argument. -- 17 of 27 -- [2026] SASCA 44 The Court 16 56 Mr Ly then made an oral application for an adjournment. As well as the costs implication of any adjournment, the overlying issue remained whether Mr Ly had authority to be appearing at all, given the absence of any evidence that there was a duly appointed director of Goldus. Judge Thomas pressed Mr Ly on this issue. Mr Ly continued to rely on the fact that Hughes J’s decision was under appeal and the affidavit evidence of Ms Terranukul, which contained the assertions of Ms Teeranukul’s directorship. The judge then addressed the objections to the affidavits as set out earlier. 57 Judge Thomas then addressed Teetulpa’s reliance on affidavit evidence that it had filed. It is not necessary for present purposes to traverse the objections taken and the parts of these affidavits that the Court received. 58 Mr Ly for Goldus then confirmed to the Court that he had no further material to rely on other than his written submissions. 59 Mr Mathas for Teetulpa then made the following submission: Well, if that’s the case, your Honour, the two points that I want to make reinforce what you’ve said earlier: they bear the onus, they don’t have a ground. The only ground that’s been asserted has been dealt with by the Supreme Court. That’s then [sic] end of it. There is no evidence that there is anyone giving instructions to Goldus now. That’s a further basis. It’s an abuse of process for someone in the name of Goldus to continue acting in circumstances where the spotlight has been put on competency. And by competency, I mean is there someone who is lawfully instructing Goldus in order to conduct a defence, or conduct these proceedings … … And there is no evidence before you today, despite that it has been called for, identified, and that should be the end of it. 60 Goldus adduced no evidence before Thomas DCJ to support its assertion that the appeal was competent by reason of there being someone lawfully in a position to instruct on its behalf between 15 December 2023 and 16 May 2025, the date of Hughes J’s judgment. Goldus relied on nothing more than a bare assertion of Ms Teeranukul’s directorship in the face of Hughes J’s judgment and its institution of an appeal against that decision. Importantly for present purposes, Goldus adduced no evidence, and made no submission, that the acts of Ms Teeranukul were authorised by the company by some means other than that which Hughes J had rejected, namely, the appointment of Ms Teeranukul on 29 August 2023. 61 In the course of argument, Thomas DCJ put to Mr Ly that Goldus’ only ground for resisting the assertion of incompetency was that Goldus was appealing the decision of Hughes J. Mr Ly did not contradict this. 62 Judge Thomas dismissed the appeal on the basis that it was incompetent. She gave ex tempore reasons as follows: Gentlemen, the transcript for today’s hearing will record the detail of what has occurred. It is plain from the appellant’s submissions that the only ground relied on in discharging the -- 18 of 27 -- [2026] SASCA 44 The Court 17 company’s onus in showing that the appeal is competent is that the Supreme Court’s determination that there has been no duly appointed director of Goldus since 15 December 2023 is wrong. Goldus’ onus has not been discharged. That is because it is no answer to say in this Court that an appeal is, or will be, pending against the decision of the Honourable Justice Hughes. Her Honour’s decision binds me until an appeal succeeds. In the circumstances there is no utility, nor is it in the parties’ or the public interests in me reserving my decision and providing written reasons. The parties need to get on with this matter and deal with the consequences that flow from the inevitable result of that being the only ground upon which Goldus contends the appeal is competent. For clarity I emphasise it is not sufficient to show that the notice of appeal was drawn with the authority of a duly appointed director, nor lodged, nor filed with such authority (putting aside the dispute about whether it was filed within time which is not necessary to resolve). It is incumbent on Goldus to show that the appeal has been maintained on the instructions of a duly appointed director since 15 December 2023. By reason of the decision of Hughes J (which binds me), I must conclude on the evidence before me, that there is no such duly appointed director and the appeal is incompetent and should be dismissed. 63 Goldus now seeks leave to appeal against this decision and the decision of Hughes J. The application for leave to appeal 64 The decision of Hughes J was interlocutory in nature. Goldus requires leave to appeal against that decision pursuant to r 213.1(1)(a) of the Uniform Civil Rules. The decision of Thomas DCJ was final in nature. However, it was a decision on appeal from the Warden’s Court. Goldus requires leave to appeal against this decision pursuant to r 213.1(1)(b) of the Uniform Civil Rules. 65 In Southern Wire Pty Ltd v Clover Communications Pty Ltd,37 this Court observed:38 The question of whether to grant leave to appeal looks to the following considerations:39 a) whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal; b) whether the decision raises an issue of general principle or importance; and c) whether allowing the decision to stand would work a substantial injustice to the applicant. (Footnote in original.) 37 [2023] SASCA 18. 38 Southern Wire Pty Ltd v Clover Communications Pty Ltd [2023] SASCA 18 at [53] (Livesey P and Bleby JA). 39 M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27 at [7] (Doyle and Livesey JJA). -- 19 of 27 -- [2026] SASCA 44 The Court 18 66 It is necessary to apply these considerations to each proposed ground of appeal. Proposed Ground 1 67 Proposed Ground 1 reads as follows: 1. Hughes J and in turn Thomas J failed to find that Ms Teeranukul was not [sic – was] validly appointed as a director of Goldus on or about 29 August 2023 or thereafter (directorship issue). Particulars A. Her Honour failed to have regard to the sworn evidence of Sarobol Teeranukul that she had been appointed as a director and had signed a consent to act as director on 29 August 2023. B. Her Honour erred by regarding evidence that the position of Sarobol Teeranukul became effective as sole director on or about 15 December 2023 as inconsistent with her evidence that she was appointed as one of two directors on 29 August 2023. C. Her Honour erred in treating the failure of Mr John Hillam to give evidence as supporting an inference that Ms Teeranukul was not appointed as director on 29 August 2023. D. Her Honour erred by disregarding or failing to make findings in respect of paragraphs [71-73] of the Judgment being critically important evidence referred to by Her Honour at those paragraphs. 68 The written submissions of Goldus in support of Particular A of this proposed ground go further than the particular itself. In effect, they complain that Hughes J failed to consider the cumulative effect of various pieces of evidence supporting Ms Teeranukul’s appointment as director. As far as Particular A itself is concerned, Hughes J manifestly had regard to the sworn evidence of Ms Teeranukul.40 The further complaint, in the written submissions, that Hughes J ‘failed to consider the cumulative objective evidence supporting the 29 August 2023 appointment’ appears similarly difficult to sustain in that, subject to consideration of Particular D, below, Hughes J manifestly considered evidence relevant to both the asserted appointment on 29 August 2023 and the holding out of Ms Teeranukul as a director.41 69 This complaint appears to amount to little more than a complaint about the weight that Hughes J attached to various pieces of evidence. That was a matter for the judge. It had to be considered in its entire context. That included the judge’s assessment of Ms Teeranukul’s credit. The judge found that Ms Teeranukul’s 40 [2025] SASC 67 at [43]. 41 [2025] SASC 67 at [71]-[73]. -- 20 of 27 -- [2026] SASCA 44 The Court 19 evidence ‘did not provide the Court with confidence that she was being truthful regarding attending a company meeting on 29 August 2023’.42 70 In support of Particular B, Goldus complains that Hughes J failed to consider the conduct of Ms Teeranukul consistent with holding herself out as a director on certain dates after 29 August 2023. Justice Hughes did consider these matters. She concluded that while there was ‘some evidence’ of holding out, the evidence was ‘insufficient to establish with any certainty that any action had been taken prior to that date for her appointment to either of these company offices on or prior to [6 December 2023]’.43 71 Goldus’ written submission seems to contend that Hughes J should have gone further, and that the evidence was stronger than merely ‘some evidence’ of appointment. This submission fails to engage with the whole of the evidence. Perhaps most significantly, Ms Teeranukul’s earlier affidavit evidence in the ERD Court of 6 February 2024 was to the effect that Ms Teeranukul’s appointment was effective on or around 15 December 2023. Justice Hughes found that Ms Teeranukul had failed to explain her change in position satisfactorily. In addition, Mr Hillam had, in an affidavit affirmed on 18 October 2023, described himself as the sole director and company secretary of Goldus.44 72 Goldus did not address Particular C separately. It is difficult to see that this particular has any real prospect of success; the application of the rule in Jones v Dunkel45 to the failure of Mr Hillam to give evidence was straightforward. 73 The submissions on Particular D appear to be bound up with the complaints on Particulars A and B, and the failure to consider the cumulative effect of the evidence in support of Ms Teeranukul having been validly appointed. It is not arguable that the judge failed to make findings about that evidence. Justice Hughes accepted that some of the evidence supported that Ms Teeranukul was holding herself out as a director at an earlier date. However, she also had regard, as she was entitled to do, to evidence that manifestly contradicted Ms Teeranukul having been appointed on 29 August 2023. 74 Goldus’ written submissions in support of Proposed Ground 1 go well beyond the ground as articulated in the Notice of Appeal. The ground itself has poor prospects of success. The written submissions in its support fail to address the evidence in its complete context. We do not consider that Proposed Ground 1 supports the existence of sufficient doubt about Hughes J’s conclusion to warrant its reconsideration. It raises no question of general principle or importance. Obviously enough, it has significant consequences for Goldus on its appeal in the ERD Court. However, it has insufficient prospects to warrant a grant of leave. 42 [2025] SASC 67 at [74]. 43 [2025] SASC 67 at [73]. 44 [2025] SASC 67 at [78]. 45 (1959) 101 CLR 298. -- 21 of 27 -- [2026] SASCA 44 The Court 20 75 We refuse leave to appeal on Proposed Ground 1. Proposed Ground 2 76 Proposed Ground 2 is a complaint about the decision of Thomas DCJ: 2. Her Honour Thomas J erred in ruling that the appeal was not competent by reason of her reliance on the findings and answer given to the first question at [148] of the decision of Hughes J, and in failing to consider whether or not the appeal was nevertheless competent on the basis that the acts, conduct or otherwise of Ms Sarobol Teeranukul were any one or more of the following: (a) subsequently ratified or authorised by the company; (b) undertaken as the company’s duly authorised agent under actual or implied authority; (c) undertaken or validated pursuant to principles of ostensible authority; (d) carried out as the company’s directing mind and will; (e) sufficient to constitute her as de facto director; and/or (f) validated by the operation of any of ss 126, 128, 129, 201, 1322 of the Corporations Act 2001 (Cth). (competency issue) Goldus’ written submissions in support of leave on this ground say: The ‘purpose’ of the referred question was to identify who was the director of Goldus, as that question would determine whether Goldus was capable of prosecuting the appeal and, if so, at whose direction (J[28]). The question was thus directed to the capacity of Goldus to prosecute the appeal, as to which the existence of a formally appointed director would assist in the determination of that issue, but was not exhaustive of the question and did not relieve Thomas J from the Court’s obligation to determine whether the appeal was competent on that or any other legally available bases. 77 Goldus has provided extensive written submissions in support of the various bases listed in Proposed Ground 2 as capable of supporting the competency of the appeal. The immediate difficulty with these submissions is that Goldus relied on none of them before Thomas DCJ on Teetulpa’s Interlocutory Application to dismiss the appeal as incompetent. 78 The submissions also exhibit some confusion. At paragraph [24], Goldus submits: When the appeal was filed, Goldus was entitled to rely on the statutory assumption in s 129(2) of the Corporations Act that persons so recorded had been duly appointed. That is due to the existence of the ASIC records, Form 484 listing Ms Teeranukul as director (recorded as effective from 29 August 2023 and is to be treated as prima facie evidence of the matters stated within it under s 1274B(2)). That assumption could only be displaced if a person knew or suspected the irregularity under s 128(4), which it did not prior to the relevant date. In any event, litigation is not rendered void ab intio simply because issues -- 22 of 27 -- [2026] SASCA 44 The Court 21 arise as to who is properly authorised internally to conduct litigation from time to time, particularly where such authority is capable of subsequent ratification. 79 Putting aside the question of subsequent ratification for the moment, this does not address Hughes J’s finding that she was not satisfied that Ms Teeranukul was appointed as a director of Goldus on 29 August 2023 at a duly convened meeting by the company, in the manner required by the Corporations Act.46 That is, the assumption was displaced by a judicial finding. 80 Goldus’ submissions then address the means under the Corporations Act47 by which Ms Teeranukul’s actions may bind Goldus in any event, concluding that: … Hughes J erred at [85]-[89]. The sections of the Corporations Act referred to above entitled third parties to presume due appointment and authority unless actual knowledge or irregularity is shown. Hughes J erred in conflating the validity of an individual director’s appointment with the company’s standing to litigate. A company registered under s 124 of the Corporations Act possesses full legal capacity and may act through agents or persons authorised by board resolution, shareholder approval, or corporate conduct giving rise to actual or ostensible authority. Disputed internal appointments do not extinguish a company’s standing to commence or maintain proceedings. (Footnote omitted.) 81 This submission is difficult to understand. The impugned paragraphs [85]-[89] read as follows: Having weighed the evidence that was before the Court and having considered the proof that was within Goldus’ power to produce, I am not satisfied that Sarobol Teeranukul was appointed as a director of Goldus on 29 August 2023 at a duly convened meeting of the company, in the manner required by the Corporations Act 2001. I am unable to find that Ms Teeranukul was appointed as a director at all. It is possible that she was appointed at a duly convened meeting that occurred in December 2023, but as there is no evidence of such a meeting before the Court, I am not able to make such a finding even on the balance of probabilities. I cannot make a positive finding on the balance of probabilities of the existence of a director of Goldus after 15 December 2023. I find that Mr Hillam was the sole director of Goldus from his appointment until his bankruptcy on 15 December 2023. There is insufficient evidence before the Court that Ms Teeranukul was made a director of Goldus at any time. As a consequence of this conclusion, Teetulpa’s alternative argument that Ms Teeranukul’s appointment was lawfully revoked by creditors, was abandoned and does not require consideration. 82 It is entirely clear that Hughes J was simply answering the question she was asked, being: who was the duly appointed director of Goldus? Putting aside that 46 [2025] SASC 67 at [85]. 47 Referring to ss 236(1)(a)-(b) and 201M(1). -- 23 of 27 -- [2026] SASCA 44 The Court 22 this proposed ground of appeal attacks only the decision of Thomas DCJ, alternative questions of agency were never agitated before Hughes J. 83 Goldus’s written submissions complain, in any event, that Thomas DCJ did not consider the corporate capacity of Goldus under ss 126 and 1322 of the Corporations Act. They further complain that she did not consider whether Ms Teeranukul’s holding herself out was sufficient to establish herself as its directing mind and will, or as a de facto director. They complain Thomas DCJ did not consider the questions of ostensible authority, corporate continuity or the possibility of ratification by Goldus of Ms Teeranukul’s actions. The submissions conclude: His [sic] Honour’s approach to competency, by relying solely on the answer to the referred question, also occasions substantial injustice by confining the evidence Goldus could advance on that issue to that which was relevant to the narrower question referred to Hughes J. 84 This submission demonstrates the fundamental difficulty with the proposed ground. After Hughes J had answered the reserved questions, the matter came on before Thomas DCJ. We have set out at some length the efforts that Thomas DCJ made in order to be sure of the basis on which Goldus resisted Teetulpa’s application in the face of Hughes J’s decision. Mr Ly for Goldus relied only on the assertions in Ms Teeranukul’s affidavit as to her appointment on 29 August 2023 and the fact that Goldus had instituted an appeal against Hughes J’s decision. 85 Judge Thomas did not ‘confine’ the evidence that Goldus could advance on the issue. The transcript shows that Goldus did not seek to advance evidence supportive of any basis supporting the competency of the appeal other than Ms Teeranukul’s due appointment on 29 August 2023. Mr Ly confined his submissions to that basis. Contrary to Goldus’ submissions on this application for leave, Goldus is now seeking to run a case that it did not seek to run on the appeal below. The merits of any of the contentions are impossible to assess, as Goldus did not adduce evidence in their support on the appeal before Thomas DCJ. 86 The administration of justice does not favour Goldus having the opportunity to agitate entirely new arguments that it did not seek to prosecute on the original appeal. To do so would likely require new evidence to be adduced and assessed. In circumstances where Goldus, which was legally represented, never asserted these grounds of authority or sought to adduce evidence in their support in the ERD Court, the complaint is without merit. 87 We refuse leave to appeal on Proposed Ground 2. Proposed Ground 3 88 Proposed Ground 3 reads as follows: 3. Her Honour Thomas J relied upon the referred questions and reasoning of Hughes J (16 May 2025), which decision erred in law in holding that the claim against the -- 24 of 27 -- [2026] SASCA 44 The Court 23 Appellant was not a claim as envisioned by the deed of company arrangement (DOCA) and the Corporations Act, with the consequence that the Respondent’s claim required leave of the Court to proceed (which it did not have) (leave issue). Particulars A. The claim against the Appellant was not [sic - was] a claim as envisioned by the DOCA and the Corporations Act. B Her Honour erred in finding at [142] that a proceeding under section 70 of the Mining Act 1971 (SA) is not a claim within the ambit of Part 5.3A of the Corporations Act or the Deed of Company Arrangement set out by Her Honour below at (95-101) of the Judgment. C. Her Honour erred by finding that the Respondent did not bring the Warden’s Court action as agent for Australian Mining Pty Ltd. 89 Particular A appears to contain an error. In any event, Goldus’ written submissions assert that ‘properly characterised’, Teetulpa’s action was a claim within the meaning of the Corporations Act and the DOCA. It seeks to justify this on the basis that the action, ‘in substance and effect’ sought to divest Goldus of valuable proprietary interests. Goldus submitted that the word ‘claim’ should not be given a narrow construction. However, Goldus’s submissions do not engage with the reasoning of Hughes J, by reference to the relevant sections of the Corporations Act or the DOCA, or identify an arguable defect in her reasoning. 90 Goldus also submitted on its leave application that Teetulpa lacked capacity to bring the Warden’s Court action under either reg 82 of the Mining Regulations 2020 (SA) or s 70 of the Act. This complaint is not the subject of any proposed ground of appeal. Neither was it the subject of a question referred to Hughes J. 91 Goldus raised this issue in submissions before Hughes J in support of its argument that Teetulpa was acting as agent for Australian Mining. The effect of the submission was that Teetulpa conducted works in the tenements held by Goldus to demonstrate its capacity, but those works were only available to Australian Mining. Teetulpa therefore acted as Australian Mining’s agent and was bound by the moratorium provisions in the DOCA. On this basis, Goldus’ contention before this Court should be understood as being made in support of Particular C. 92 Justice Hughes noted, in respect of Goldus’ submissions on agency:48 Goldus’ reply submissions assert that Australian Mining has rights to mine the tenements that were the subject of the Wardens Court Action proceedings.49 Goldus referred the Court to documents in the Case Book which showed that Joe Nakat was one of two directors of RND Funding Pty Ltd which was appointed controller over Australian Mining on 48 [2025] SASC 67 at [121]-[123]. 49 FDN 40, Written submissions of Goldus dated 4 October 2024 at [12]. -- 25 of 27 -- [2026] SASCA 44 The Court 24 22 October 2019, that Mr Nakat is a director of Teetulpa, and that Mr Nakat also holds 50% of the shares in Teetulpa.50 Goldus referred the Court to correspondence from the Mining Registrar filed in the Warden’s Court proceedings, in which she informed Goldus that Australian Mining was the “Agent and Operator” of the “Goldus mineral tenements”.51 It was not elaborated upon as to what the Registrar meant by those terms, and does not take the matter much further in that Goldus’ contention is that, in the Warden’s Court, Teetulpa was the agent of Australian Mining in respect of the Warden’s Court Action. Viewing the relevance of that evidence at its highest, Australian Mining and Teetulpa were both involved in the use of the tenements. Mr Hillam cross-examined Mr Nakat in the Warden’s Court Action proceedings.52 It was not put to him that Teetulpa was the agent of Australian Mining for the purposes of those proceedings. (Footnotes in original.) 93 Goldus submitted to this Court that Hughes J did not decide whether or not Teetulpa relied on Australian Mining’s rights to satisfy its requirement of capacity or resolve the issue of Teetulpa’s capacity at all. It submitted that ‘[t]his allowed the proceeding to continue in the ERD Court despite the unresolved threshold issue of standing and capacity of Teetulpa’. However this issue only appears to have been raised before Hughes J as an issue relevant to the question of agency, in Reply, with the agency allegation not even being put to Mr Nakat. 94 The Warden’s Court found that Teetulpa had capacity. That was an essential requirement for making an application under s 70(2a) of the Act, not a matter that went to whether leave was required by reason of the DOCA, which was the matter reserved to Hughes J. Teetulpa either satisfied the requirements of reg 62 or it did not. The Warden’s Court finding of capacity does not appear to have been the subject of challenge in the Notice of Appeal to the ERD Court. 95 In any event, insofar as Goldus seeks to raise, in submissions, the capacity of Teetulpa to commence the Warden’s Court action as an issue on the appeal, we do not accept that the proposed Notice of Appeal supports the attempt. 96 As to Particular C more broadly, Goldus simply submitted that ‘the evidence shows’ that Teetulpa was acting as agent of Australian Mining. Goldus does not explain in what respect Hughes J’s analysis was wrong or point to any infirmity in her reasoning. Justice Hughes found that Goldus had not established the existence of any express or implied agreement between the parties. She also observed that Goldus had not addressed the fact that the legal benefit of the Auxiliary Warden’s determination fell to Teetulpa, not Australian Mining.53 She accepted that Australian Mining might benefit from the outcomes of the Warden’s Court action. That did not, however, require a conclusion that Australian Mining should be taken 50 Ibid [18]-[20]. 51 Ibid [22]. 52 The Warden’s Court action (n 1) [63]. 53 [2025] SASC 67 at [125]-[127]. -- 26 of 27 -- [2026] SASCA 44 The Court 25 to have prosecuted that action. Further, as the judge noted, the Warden’s Court was not asked to recognise that Teetulpa was acting as agent for another. 97 We are not satisfied that Goldus has demonstrated an arguable basis for prosecuting Particular C of Proposed Ground 3. 98 As to whether the Warden’s Court Action was a ‘claim’, for the purposes of Particulars A and B, we set out again Hughes J’s conclusion:54 Proceedings under s 70 are not a ‘claim’ in the sense intended by Part 5.3A of the Corporations Act 2001 or the DOCA. They do not concern any existing liability by the respondent to the applicant. The proceedings seek to establish a basis for forfeiture. There need be no relationship between an applicant under s 70 and the respondent. The applicant must merely consider that it can establish that the respondent has acted in a manner that warrants forfeiture, and that it can establish suitability to inherit the tenements. 99 Goldus has not offered any analysis that could reasonably be said to impugn this reasoning. It merely asserted: The conclusion that the proceedings fell outside the DOCA disregarded the broad construction given to ‘claims’ in the context of corporate administration and misapplied the test for whether a proceeding is stayed or requires leave under a DOCA. 100 To the contrary, Hughes J gave close consideration to judicial treatment of the meaning of ‘claim’ in the insolvency context.55 Goldus has not offered any analysis to contradict her Honour’s approach. 101 While Particulars A and B raise a question of law, to some extent they turn on the correct interpretation of cll 10 and 11 of the DOCA. The significance of the question raised is limited. Otherwise, Goldus has not demonstrated it to be reasonably arguable that Hughes J’s interpretation of the relevant provisions of the Corporations Act was erroneous. In any event, we are not satisfied that these particulars have reasonable prospects of success. 102 We refuse leave to appeal on Proposed Ground 3. Conclusion 103 We refuse leave to appeal. Consistently with Order 5 of the orders dated 17 March 2026, the applicant is to pay the respondent’s costs of and incidental to the application for reinstatement and the application for summary dismissal. 54 [2025] SASC 67 at [142]. 55 [2025] SASC 67 at [135]-[139]. -- 27 of 27 --