GOLDUS PTY LIMITED (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) v TEETULPA GOLDFIELDS PTY LTD [2025] SASC 67

Appellant: GOLDUS PTY LIMITED (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) Respondent: TEETULPA GOLDFIELDS PTY LTD Counsel: MR M MATHAS - Solicitor: MATHAS LAW Hearing Date/s: 21/08/2024, 08/10/2024, 29/10/2024 File No/s: ERD-24-000001 B SUPREME COURT OF SOUTH AUSTRALIA (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 [2025] SASC 67 Judgment of the Honourable Justice Hughes 16 May 2025 CORPORATIONS - GENERALLY - CORPORATIONS LEGISLATION APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS - CASE STATED AND RESERVATION OF QUESTION OF LAW ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - SUPREME COURT - OTHER MATTERS 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 The respondent applied to the Warden’s Court for an adjudication as to whether certain of the appellant’s mining tenements were liable for forfeiture and sought a finding that the respondent was a suitable entity to have those tenements issued to it. The Warden’s found that the appellant had breached certain conditions of the Mining Act 1971 and certain of its mining tenements were found liable to forfeiture. The appellant appealed to the Environment, Resources and Development Court. On appeal, the Judge identified two potential issues. The first was whether the appellant had a director such as to be capable of prosecuting the appeal. The second was whether the original proceedings in the Warden’s Court, and the appeal, were only able to be commenced on a grant of leave by the Supreme Court or Federal Court, pursuant to a term in the deed of company arrangement to which the appellant was subject The Judge referred these questions referred to the Supreme Court pursuant to s 20A of the Environment, Resources and Development Court Act 1993, in the following terms: -- 1 of 38 -- 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 the Appeal, and are such actions, without leave, a nullity? The appellant’s contention was that it had appointed a director on 29 August 2023 such that when its first director was declared bankrupt on 15 December 2023, the appellant continued to have a director who could cause the appellant to prosecute the appeal. The respondent contended that the events asserted by the appellant did not occur such that the appellant had no director and the appeal could not be prosecuted. In relation to the issue of leave to commence proceedings, the appellant contended that in bringing the original proceedings, the respondent acted as the agent of a creditor bound by the deed of company arrangement such that it would be an abuse of process for the orders to be allowed to stand in the absence of a grant of leave to proceed with the action. The respondent denied that it was a creditor within the meaning of the deed of company arrangement or that it acted as a creditor’s agent, and that the proceedings did not concern a claim against the appellant in any event. Held: 1. As to question 1: It has not been established that there is a duly appointed director of Goldus Pty Ltd. 2. As to question 2: 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. Bankruptcy Act 1966 (Cth); Corporations Act 2001 (Cth) ss 203C, 206B, 444D, 444E, 444G, 553, Part 5.3A; Environment, Resources and Development Court Act 1993 (SA) s 20A; Mining Act 1971 (SA) s 70, Part 10A; Mining Regulations 2020, referred to. Adelaide Brighton Cement Limited, in the matter of Concrete Supply Pty Ltd v Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement) (2018) 124 ACSR 389; BE Australia WD Pty Ltd v Sutton (2011) 82 NSWLR 336; Brash Holdings Ltd v Katile Pty Ltd [1996] 1 VR 24; Emanuele & Anor v Australian Securities Commission & Ors (1997)188 CLR 114; Goldus Pty Ltd v Australian Mining Pty Ltd SASC 32; Goldus Pty Ltd v Australian Mining Pty Ltd (Recs and Mgrs Apptd) FCAFC 27; Goldus Pty Ltd (Subject to a DOCA) v Cummins (No 4) (2021) 157 ACSR 118; Hoath v Connect Internet Services (2006) 229 ALR 566; Jones v Dunkel (1959) 101 CLR 298, Knell v QAV Pty Ltd [2020] WASCA 23; Lehman Brothers Holdings Inc v City of Swan (2010) 240 CLR 509; Mighty River International Ltd v Hughes (2018) 265 CLR 480; PK Riddell Investments Pty Ltd v Onwards Up and Gone Pty Ltd (2024) 73 VR 219; RnD Funding Pty Ltd v Roncane Pty Ltd (2023) 297 FCR 91; Sons of Gwalia Ltd v Margaretic (2007) 231 CLR 160; Taouk v Assure (NSW) Pty Ltd [2019] NSWCA 224, considered. -- 2 of 38 -- GOLDUS PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) v TEETULPA GOLDFIELDS PTY LTD [2025] SASC 67 Civil 1 HUGHES J: On 22 November 2023, an Auxiliary Warden of the Warden’s Court delivered judgement in Teetulpa Goldfields Pty Ltd v Goldus Pty Limited (Subject to a Deed of Company Arrangement) (‘the Warden’s Court Action’).1 The parties to those proceedings both conduct mining operations. The proceedings concerned an application by Teetulpa Goldfields Pty Ltd (‘Teetulpa’) for an adjudication that certain mining tenements held in the name of Goldus Pty Ltd (Subject to a Deed of Company Arrangement) (‘Goldus’) were liable to forfeiture to the Crown. The proceedings were brought pursuant to s 70(2) of the Mining Act 1971 (SA) (‘the Act’). 2 Following a contested hearing in the Warden’s Court Action, the Auxiliary Warden made an order that the specified tenements (being ML 5337, ML 5471, ML 5485, ML 5486, ML 5550, ML 5759, and ML 5886) were liable to forfeiture. The Auxiliary Warden found that Goldus’ liability to forfeit the tenements arose because it had breached the Act and the Mining Regulations 2020, had breached a term or condition of its tenements, had failed to conduct mining operations on the tenements, and that its breaches caused undue damage to the environment.2 The Auxiliary Warden also found that, following Goldus’ forfeiture, Teetulpa was a suitable entity to have the tenements issued in its name.3 No orders were made in respect of that aspect of the decision. 3 Goldus appealed the Warden’s Court Action by commencing an action (‘the Appeal’) in the Environment, Resources and Development Court (‘ERD Court’).4 4 In the preliminary hearings on the Appeal, a Judge of the ERD Court identified two potential impediments to the disposition of the appeal. Goldus is subject to a deed of company arrangement (‘DOCA’), that has as one of its terms a prohibition on creditors making claims against Goldus without the leave of the Supreme or Federal Court.5 Teetulpa and associated companies have been engaged in dispute with Goldus for some years. The Judge observed that no leave had been granted by a court for the Warden’s Court Action or the Appeal to proceed. 1 Court Book 6 (‘CB’), CIV-22-006102, (‘the Warden’s Court Action’). 2 Ibid [294]. 3 Ibid [297]. 4 ERD-24-000001. 5 The DOCA appears at CB 135, as part of Exhibit MM2 to the affidavit of Angelos Mitchell Mathos affirmed 10 May 2024. The counter-signed copy is annexed to the affidavit of Sarobol Teeranukul affirmed on 6 August 2024 and appears in the CB at 277. Hereafter, references to the DOCA will be made to the document as it appears earliest in the CB. The relevant clause of the DOCA is [10]. -- 3 of 38 -- [2025] SASC 67 Hughes J 2 5 Secondly, the Judge observed that the affairs of Goldus, including the provision of instructions to solicitors as to the conduct of the appeal, appeared to be being managed by Goldus’ former director Mr John Hillam, who is an undischarged bankrupt and as such unable to hold directorship or participate in the management of the company. Goldus’ legal representatives (at that time) denied that Mr Hillam was managing the company’s affairs and asserted that Goldus’ director is Ms Sarobol Teeranukul, who is Mr Hillam’s wife. Teetulpa disputed that assertion, and contended that Ms Teeranukul was either never validly appointed as a director of Goldus, but that if she had been, such appointment had been later revoked by Goldus’ creditors shortly after it occurred. Teetulpa contended that Goldus has no director and that the appeal cannot be prosecuted.6 6 Accordingly, within the appeal proceedings, her Honour referred two questions to this Court pursuant to s 20A of the Environment, Resources and Development Court Act 1993. They are: 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? 7 The disposition of the referred questions was assisted by written submissions, oral argument and some oral evidence by Ms Teeranukul on behalf of Goldus. Goldus was represented by two different law firms over the course of the referral, and unrepresented at other times. Counsel appeared for Goldus at the hearings on 21 August 2024 (when evidence was led) and on 8 October 2024 for submissions, but not at the final hearing on 29 October 2024. Parties’ written submissions 8 Goldus filed the following documents in relation to the referred questions: 1. FDN 26 - Affidavit of Sarobol Teeranukul affirmed on 24 April 2024, filed on 18 June 2024. This affidavit was not relied upon and not read, and I have not taken it into account in this decision. 2. FDN 29 - Written Submissions of Goldus Pty Ltd filed 19 July 2024. 3. FDN 32 - Affidavit of Sarobol Teeranukul affirmed on 6 August 2024, filed on 13 August 2024. This affidavit was read. 4. FDN 39 - Affidavit of Sarobol Teeranukul affirmed on 20 August 2024, filed on 4 October 2024. This affidavit was read. 5. FDN 40 - Written submissions of Goldus dated 4 October 2024, filed by Goldus’ then legal representatives on 4 October 2024. 6 This represents Teetulpa’s final position on this issue. -- 4 of 38 -- [2025] SASC 67 Hughes J 3 6. FDN 42 - Written submissions of Goldus dated 21 October 2024, filed on 24 October 2024 by Ms Teranukul on behalf of Goldus, on the directorship issue. 7. FDN 43 - Updated Written Submissions filed by Goldus on 24 October 2024 on the issue of whether leave was required. 8. FDN 51 - Appellant’s Submission in Reply filed by Goldus on 8 November 2024. Teetulpa filed the following documents in respect of the referred questions: 9. FDN 37 Respondent’s submissions dated 11 September 2024, filed on 12 September 2024. 10. FDN 24 Affidavit of Angelos Mitchell Mathas sworn on 10 May 2024. This affidavit was read. 11. FDN 49 Respondent’s Reply Submissions dated 4 November 2024. Context 9 Before considering the referred questions, it is convenient to set out some undisputed facts and to describe the Warden’s Court Action in some more detail. It was common ground that: • 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.7 • 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.8 • Goldus became embroiled in dispute with Australian Mining.9 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;10 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. 7 The Warden’s Court Action (n 1) [10]. 8 Ibid [13]. 9 Ibid [14]. 10 (‘Goldus No 4’). -- 5 of 38 -- [2025] SASC 67 Hughes J 4 • 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. • Teetulpa and Australian Mining are not related companies for the purpose of the Corporations Act 2001 but share common directors.11 • Teetulpa is the sole shareholder of Australian Mining. • Australian Mining is controlled by RND Funding Pty Ltd. The Warden’s Court Action 10 Section 70 of the Act authorises a person to apply to the Warden’s Court for an adjudication that a mineral tenement is liable to forfeiture and for a recommendation to the Minister for Energy and Mining that the tenement be forfeited. 11 In June 2022, Teetulpa commenced the Warden’s Court Action seeking such an adjudication in respect of certain tenements held by Goldus.12 In addition to an order for forfeiture, Teetulpa sought to be found by the Court to be eligible to have the tenements transferred by the Minister to Teetulpa. 12 Goldus was the respondent to those proceedings. 13 The administrators of the DOCA declined to intervene or be heard in the proceedings.13 14 The Auxiliary Warden approached the Warden’s Court Action as having two discrete aspects.14 The first was that there had been a breach of the Act or regulations by Goldus and that the matter was sufficiently grave to justify forfeiture.15 The second was that Teetulpa had met or was capable of meeting the relevant legislative requirements. 11 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. 12 CB 156, Exhibit MM2 to the affidavit of Angelos Mitchell Mathos affirmed 10 May 2024. 13 CB 64, Affidavit of Angelos Mitchell Mathos affirmed 10 May 2024. 14 The Warden’s Court Action (n 1) [7]. 15 Ibid [231]-[237]. -- 6 of 38 -- [2025] SASC 67 Hughes J 5 Breach by Goldus 15 Teetulpa was required to demonstrate that Goldus’ conduct was such as to render the tenements liable to forfeiture by reference to the criteria in s 70 of the Act. 16 Under this section,16 the Court must be satisfied that the tenement holder has breached the Act or regulations, and/or breached a term or condition of the tenement, and/or breached a program under Part 10A of the Act,17 and/or caused undue damage to the environment in connection with any authorised operations carried out under the tenement, and/or failed to carry out activities associated with holding the relevant type of tenement within a reasonable time or to a reasonable extent. Further, the conduct must be “in a material respect” and of sufficient gravity to justify forfeiture of the tenement.18 17 In considering this first matter, the Court considered evidence provided by witnesses called by Teetulpa. Those witnesses included Teetulpa’s director and officers of the Department for Energy and Mining. 18 Goldus was not legally represented in the Warden’s Court Action and the proceedings were conducted by its director, Mr John Hillam. Goldus’ position in the Warden’s Court Action was, in part, that various disputes between Goldus and its joint venture partner Australian Mining, had interfered with Goldus’ ability to comply with its obligations with respect to the tenements. 19 The Auxiliary Warden found that the tenements were liable to forfeiture by reason of Goldus’ breaches of its obligations with respect to them. Those breaches were: • Failure to pay rent on the tenements;19 • Failure to conduct mining operations;20 • Failure to comply with the relevant program for environment, protection and rehabilitation;21 and • Creating undue damage to the environment.22 16 Mining Act 1971 s 70(2b). 17 Ibid Part 10A. A program under this Part ensures that holders of mineral tenements have a program in force which, broadly speaking, specifies information regarding the authorised operations proposed to be carried out, sets out the environmental outcomes expected to occur as a result of the operations (including after rehabilitation) and sets out a statement of the criteria to be adopted to measure those environmental outcomes, and incorporates information about the ability of the party to achieve the environmental outcomes. 18 Ibid s 70(2b). 19 The Warden’s Court action (n 1) [250]-[252]. 20 Ibid [253]-[260]. 21 Ibid [261]-[269]. 22 Ibid [270]-[276]. -- 7 of 38 -- [2025] SASC 67 Hughes J 6 Teetulpa’s suitability 20 Section 70(3) of the Act provides that where the Warden's Court has recommended the forfeiture of a mineral tenement, the Minister may forfeit the mineral tenement to the Crown. The person on whose application the Court recommended forfeiture is then entitled, if they satisfy certain criteria, to a transfer of the mineral tenement to them from the Crown for the balance of its term. 21 Pursuant to the regulations under s 70(2a),23 in order to establish the right to have the tenement transferred, the applicant must demonstrate their capacity to meet the terms and conditions of the tenement and the outcomes, criteria, and requirements of the relevant approved program.24 The applicant must also be able to show that they have the relevant technical, operational and financial capabilities and resources to undertake the operations, and the rectifications.25 The Minister must also consent to the transfer.26 22 Upon considering Teetulpa’s capabilities, the Court was satisfied that the requirements of regulation 62 were met.27 Orders 23 The Warden’s Court made an adjudication, as sought by Teetulpa, that certain mineral tenements held by Goldus were liable to forfeiture and recommended the forfeiture of certain tenements.28 24 This order only concerned forfeiture. Whilst making findings that Teetulpa was suitable to assume the rights to mine the tenements, no order was made that directly conferred any proprietary or other interest upon Teetulpa. This accords with the scheme under s 70(3) by which the Minister to whom tenements have been forfeited, is required to transfer tenements to a party who has established that, to the Court’s satisfaction, they are a suitable recipient. Appeal 25 Goldus filed the Appeal in the ERD Court on 12 December 2023.29 It was signed by Mr Hillam as director of Goldus. 26 Mr Hillam’s estate was sequestrated by the Federal Court on 15 December 2023.30 23 Ibid s 70(2a); Mining Regulations 2020 reg 62. 24 Ibid s 70(3); Mining Regulations 2020 reg 62. 25 Ibid. 26 Ibid sub-reg 3. 27 Ibid [280]-[293]. 28 Ibid [298]. 29 CB 55. 30 CB 170, Exhibit MM2 to the affidavit of Angelos Mitchell Mathos sworn on 10 May 2024. -- 8 of 38 -- [2025] SASC 67 Hughes J 7 27 The ERD Court referred the two questions to this Court in March 2024.31 The forfeiture order has been stayed since that time. The Mining Registrar has observed but not taken an active role in the proceedings. Question 1 – Who is the duly appointed director of Goldus Pty Ltd (Subject to Deed of Company Arrangement)? 28 The purpose of this referred question is to determine, as at the current time, who is the director or are the directors of Goldus. This will determine whether Goldus is capable of prosecuting the appeal and if so, at whose direction. 29 Goldus submits that it has a director: Ms Sarobol Teeranukul, who was appointed by Goldus at a duly convened meeting of the company on 29 August 2023 as a second director, and became its sole director on 15 December 2023. It submits that Ms Teeranukul can represent the company on the appeal. 30 Teetulpa submits that Goldus has not established that Ms Teeranukul was appointed as director on 29 August 2023, and has not been shown to have been appointed at all. It submits that Goldus has not had a director since Mr Hillam became incapable of managing Goldus’ affairs on 15 December 2023.32 During the referral hearings, Teetulpa abandoned a contention that if Ms Teeranukul had been appointed on 29 August 2023 or at some other time, such appointment had been revoked by a creditors’ resolution. 31 Goldus’ notice of appeal filed on 12 December 2023 was signed by Mr Hillam as director of Goldus. Teetulpa does not dispute that Mr Hillam was Goldus’ director at that date and that as such, he had authority to cause Goldus to initiate the appeal at that time. A person associated with Goldus, Ms Ren, sent the appeal documents to Teetulpa’s solicitors by email the following day. 32 Orders sequestrating Mr Hillam’s estate under the Bankruptcy Act 1966 were made on 15 December 2023 in the Federal Circuit and Family Court of Australia (Division 2).33 Thomas Stuart Otway and Alan Geoffrey Scott were appointed as joint and several trustees in respect of the estate. By virtue of s 206B(3) of the Corporations Act 2001, Mr Hillam became disqualified from taking part in the management of Goldus, and any other company, from the date of the Court order. 33 On the day the order was made, Mr Hillam filed an application for a review of the sequestration decision in the Federal Circuit and Family Court (Division 2). 34 On 19 December 2023, someone on behalf of Goldus caused a Change of Company Details form to be lodged with the Australian Securities and Investments Commission (‘ASIC’) with respect to Goldus Pty Ltd.34 The form nominated Mr Hillam as the contact for the information contained therein. The form was 31 See [6] of this judgment. 32 CB 170, Exhibit MM2 to the affidavit of Angelos Mitchell Mathos sworn on 10 May 2024. 33 Ibid. 34 CB 172, Exhibit MM2 to the affidavit of Angelos Mitchell Mathos affirmed 10 May 2024. -- 9 of 38 -- [2025] SASC 67 Hughes J 8 certified by Mr Hillam in the stated capacity of “director”. The form notified ASIC of the appointment of Ms Sarobol Teeranukul as a director and secretary of Goldus with an appointment date of 29 August 2023 for both offices. 35 On 28 December 2023, solicitors for Teetulpa wrote to Mr Hillam requesting, amongst other things, to be advised of the person on whose authority Goldus could continue the Appeal, in light of his bankruptcy.35 Mr Hillam’s brief email response did not answer that question.36 36 On 15 January 2024, Receivables TRD Pty Ltd, as controller of Goldus’ shares, resolved to remove Ms Teeranukul as a director of Goldus with immediate effect.37 37 Mr Hillam’s review of the sequestration order was dismissed. The sequestration order was affirmed by a Judge of the Federal Circuit and Family Court (Division 2) on 22 March 2024.38 38 During the hearings of these referred questions of law, Mr Hillam remained an undischarged bankrupt. Parties’ respective positions on the first question: directorship of Goldus 39 It is Goldus’ position that Ms Teeranukul is a director of Goldus and can cause Goldus to prosecute the Appeal. 40 It is Teetulpa’s case that Mr Hillam was, in August 2023 until his bankruptcy on 15 December 2023, Goldus’ only director. Teetulpa says that the evidence does not support a finding that Ms Teeranukul was appointed on 29 August 2023 or on any other date. It contends that since 15 December 2023, there has been no person appointed who can lawfully perform the functions of director of Goldus, including prosecuting the Appeal. 41 Initially, Teetulpa’s alternative position was that if Ms Teeranukul was appointed as a director of Goldus in August 2023, or possibly in December 2023, her directorship was subsequently lawfully terminated on the application of Receivables TRD Pty Ltd, with the consequence that Goldus currently has no director. That alternative line of argument was abandoned upon Teetulpa’s concession that s 203CA of the Corporations Act 2001 prohibits the action of a third party that would remove a company’s sole director.39 Teetulpa’s final position, therefore, was that Ms Teeranukul was not appointed on 29 August 2023 and has not been shown to have been appointed on any date thereafter. 35 CB 166, Exhibit MM2 to the affidavit of Angelos Mitchell Mathos affirmed 10 May 2024. 36 Ibid. 37 CB 184, Exhibit MM2 to the affidavit of Angelos Mitchell Mathos affirmed 10 May 2024. 38 CB 191, ADG269/2023 per Judge Brown, Exhibit MM2 to the affidavit of Angelos Mitchell Mathos affirmed 10 May 2024. 39 Transcript of proceedings dated 21 August 2024, pp 24-27. -- 10 of 38 -- [2025] SASC 67 Hughes J 9 Goldus’ evidence on the issue of directorship 42 Goldus’ primary evidence on the directorship issue was Ms Teeranukul’s affidavits of 6 August 2024 and 20 August 2024, and her oral evidence at the hearing on 21 August 2024. 43 Ms Teeranukul’s affidavit affirmed on 6 August 2024 was read into evidence, subject to paragraph 29 being struck out on the application of the respondent.40 In that affidavit, Ms Teeranukul deposed that she is the sole director of Goldus.41 She asserted that on 29 August 2023, she attended a meeting with Mr Hillam, who was at that time Goldus’ sole director, at 80 Pyrmont Street, Pyrmont, in Sydney.42 Her affidavit reads:43 During that meeting, my written consent to act as a director of Goldus was tabled and it was resolved that I would be appointed as an additional director of Goldus from 29 August 2023 … 44 The affidavit annexed an exhibit comprising several documents included a Form of Consent to Appointment showing Ms Teeranukul’s consent to be appointed as director and secretary of Goldus,44 and the company minutes of the meeting held on 29 August 2023.45 45 Ms Teeranukul deposed that:46 Following the meeting, the register of officers that is part of the company register of Goldus was updated to reflect my appointment … 46 A register of officers containing two entries, Mr Hillam’s appointment on 14 October 2019 and her own on 29 August 2023, was annexed to the affidavit.47 The affidavit of 6 August 2024 contains no other information about Ms Teeranukul’s appointment or her role as second director. 47 Ms Teeranukul’s affidavit of 20 August 2024 was also read into evidence.48 Other than to repeat the assertion ‘I am the sole director of Goldus … ’ in the first paragraph,49 that affidavit concerns other matters and does not touch on the issue of directorship of Goldus. 48 There was, therefore, no affidavit evidence by Goldus in respect of any explanation of a gap in time between the notification to ASIC of the change of 40 CB 209, Affidavit of Sarobol Teeranukul affirmed 6 August 2024; Ibid 32. 41 Ibid [1]. 42 Ibid [6]. 43 Ibid [7]. 44 CB 256, Exhibit ST-1 to the affidavit of Sarobol Teeranukul affirmed 6 August 2024. 45 Ibid, CB 257. 46 CB 209, Affidavit of Sarobol Teeranukul affirmed 6 August 2024 at [9]. 47 CB 276, Exhibit ST-1 to the affidavit of Sarobol Teeranukul affirmed 6 August 2024. 48 FDN 39, Affidavit of Sarobol Teeranukul affirmed 20 August 2024. This document was filed subsequent to the preparation of the Court Book. 49 Ibid [1]. -- 11 of 38 -- [2025] SASC 67 Hughes J 10 directorship on or about 18 December 2023, and the asserted earlier date on which the appointment is purported to have occurred on 29 August 2023. 49 However, Ms Teeranukul referred to the issue when she gave evidence on 21 August 2024. 50 At her request, Ms Teeranukul gave evidence from Sydney over video link, assisted by a Thai interpreter when required. She gave most of her responses in English. At the beginning of the hearing, and in earlier procedural hearings by audio visual link, it had been necessary to ask Mr Hillam not to assist Ms Teeranukul in her giving of evidence, or be in the room with Ms Teeranukul when she was giving evidence. The arrangement agreed upon for 21 August 2024 was that Mr Hillam would listen in on the proceedings from a separate room in the building in Sydney from which Ms Teeranukul was giving evidence. 51 Counsel for Goldus did not ask any questions of Ms Teeranukul to supplement the affidavit evidence described above. Mr Mathas cross-examined the witness, and in particular put to her (and later tendered), an affidavit affirmed by Ms Teeranukul on 6 February 2024 but not sought to be relied upon by Goldus.50 52 In that affidavit, which was filed for the purpose of supporting Ms Teeranukul’s permission to represent Goldus as its director in this appeal when it was before the Environment Resources and Development Court, Ms Teeranukul deposed in paragraph 1:51 I am the sole director and secretary of the applicant which was effective on or around 15 December 2023. 53 It was the apparent inconsistency between this assertion, and that in her later affidavit of 6 August 2024, and the appointment date stated in the documents submitted to ASIC concerning the timing of her appointment as a director, that counsel for Teetulpa sought to explore in cross-examination. 54 Mr Mathas, for Teetulpa, took Ms Teeranukul to paragraph 1 of her affidavit dated 6 February 2024, in which she deposed in paragraph 1 that she was appointed as a director of Goldus “on or about 15 December 2023”.52 Mr Mathas put to her that paragraph 1 suggested that she was not appointed on 29 August 2023. Ms Teeranukul replied:53 I was appointed on 29 August last year, 2023. 55 Mr Mathas referred Ms Teeranukul back to her affidavit of 6 February 2024. As he did so, there was a noise that came through the audio-visual link and there was a brief exchange between counsel, the witness, and myself as to what it caused 50 CB 193, Affidavit of Sarobol Teeranukul affirmed on 6 February 2024. 51 Ibid [1]. 52 Transcript of proceedings dated 21 August 2024, 38. 53 Ibid. -- 12 of 38 -- [2025] SASC 67 Hughes J 11 it. It was not resolved. Mr Mathas then resumed cross-examination of Ms Teeranukul. The witness confirmed that she had deposed in her affidavit of 6 February 2024 that her appointment as a director was “on or around 15 December 2023”.54 Mr Mathas then asked the witness:55 And you now say that was wrong? 56 However, before the witness could answer, Mr Mathas interrupted his own cross-examination to make the point that Mr Hillam could be seen on the video monitor to be in the room from which Ms Teeranukul was giving her evidence.56 57 It was necessary to grant a short adjournment to Ms Keynes, representing Goldus. I had the following exchange with Ms Keynes after the adjournment:57 Q: Your Honour, if I may? I just wanted to advise the court that my solicitor has spoken both to Mr Hillam and Ms Teeranukul on a limited basis, obviously, just to reiterate that they are not to be in any sort of contact or physically in the same location. Can I ask that the court make a direction in that respect directly to Ms Teeranukul as well? HER HONOUR: Ms Teeranukul, whilst giving your evidence you must not communicate with Mr Hillam or any other person whilst giving your evidence. Do you understand that? A. Understand. Q. Thank you. A. Your Honour, yes. 58 In its written closing submissions, Teetulpa invited the Court to conclude that Mr Hillam had sought to interfere with Ms Teeranukul’s evidence. Goldus invited the Court to accept that Mr Hillam was walking through the room in which Ms Teeranukul was giving her evidence, on his way to the bathroom. I have insufficient information to make a finding either way. The point is that cross- examination on the limited but important issue of the difference in content between the affidavits 6 February 2024 and 6 August 2024 struck a number of hurdles, of which that was the first. 59 Cross-examination of Ms Teeranukul by Mr Mathas then resumed. He took the witness back to the first paragraph of her affidavit of 6 February 2024.58 Q We're at court book p.194 and I had directed your attention to para.1. Do you recall that. 54 Ibid. 55 Ibid 39. 56 Ibid. 57 Ibid 39-40. 58 Ibid 40. -- 13 of 38 -- [2025] SASC 67 Hughes J 12 A Yes, I am a director. I am a sole director, yes. Q The statement is - A I will state - MR MATHAS: Your Honour? Witness: I cannot hear. Can you speak again? I cannot hear. XXN Q That paragraph says that you were appointed as a director with effect from on or about 15 December 2023, doesn't it. A Yes, I state with my affidavit that I gave to the court. Q And 15 December 2023 is nowhere near August 2023 is it. A Yes. Q So you were confused in February 2024 were you. A You know I let my staff - I am the director of the company and when I appoint the position on 29 August I let my staff to do all the file into the court, into the what they call, into the ASIC, something like that. They do all - the staff, they do all the document for us, for me. Q Thank you for that - A So I appoint on 29th as a director, full stop. Q Is there any reason why para.1 says 15 December 2023 and not a date in August 2023. A You know I let my staff to do something, they might be make the mistake or forget to do something, but I instruct them to do it again so they did again and then we pay the late fee. So this is by law we are okay. 60 I find that Ms Teeranukul’s answer to being asked why her February 2024 affidavit did not refer to a date in August 2023, was unresponsive. Her answer appears to address the question of why the change of directorship was not notified to ASIC until December 2023. This much is evident by virtue of the reference to the “late fee” which is the fee that Ms Teeranukul says that Goldus paid for filing a change of directorship document after the due date when the asserted event occurred in August 2023. Ms Teeranukul’s answer did not give an account for the apparent difference in the dates she said that her directorship commenced. 61 Mr Mathas continued:59 MR MATHAS: Your Honour, can I ask her to answer the question rather than provide- 59 Ibid 40-42. -- 14 of 38 -- [2025] SASC 67 Hughes J 13 HER HONOUR: I wonder, Mr Mathas, whether or not it wouldn't be preferable for her to answer the question in Thai and for a translation, because some of the words that are being used leave me in some doubt as to whether or not they convey her intention. What do you say about that, Mr Mathas? MR MATHAS: That's the preferable course. HER HONOUR: The court would be assisted if you would answer Mr Mathas' question in your first language, and I will ask for the question to be translated and then for your answer to be given and translated, please. MR MATHAS: Yes, your Honour. HER HONOUR: Mr Mathas, could you put the question for the interpreter. XXN Q The date of 15 December 2023 in para.1 of your affidavit is nowhere near August 2023, is it. INTERPRETER: Can you break that up a little bit please, sentence by sentence please? XXN Q (Interpreted) Is 15 December 2023 close to August 2023. HER HONOUR: Can you hear that, Ms Teeranukul. A I cannot hear. HER HONOUR: Madam Interpreter, could you please come closer to the microphone. HER HONOUR: Ms Teeranukul, can you just - are you able to adjust your camera so that your face is more close to the middle of the screen, thank you, because when you move we can't see your face when you're answering. A Okay. HER HONOUR: Madam Interpreter, do you need the question again? INTERPRETER: Yes, your Honour. MR MATHAS: My concern is that I've put the question four times and I'm going to put it in a different way again, I'm afraid. XXN Q Is 15 December 2023 anywhere near August 2023. A Not close but we have planned because - so we planned to do everything for Mr Hillam because he's not well, he's like one years in the hospital. You know night time operation. So, we plan to do something for the director. HER HONOUR: I would like to hear your answers having been interpreted and you must speak in short sentences so that the interpreter can tell the court what you're saying. Your lawyer would like to say something. -- 15 of 38 -- [2025] SASC 67 Hughes J 14 MS KEYNES: Ms Boyce has just advised me that she can't really hear the translator. There maybe some issue that perhaps my microphone might assist in that case. HER HONOUR: I would like your answer to Mr Mathas' question to be given in Thai to the interpreter in short sentences so I can understand the answer that you have given. Please give your answer again. A What did he ask? XXN Q The date of 15 December 2023 in para.1 of your affidavit of 6 February 2024 is nowhere near August 2023 is it. A I said, yes. HER HONOUR: Are you happy to move on? MR MATHAS: I'm happy to move on. We've run out of time and I think I've made the point but I've got more questions. HER HONOUR: Thank you. 62 Mr Mathas tendered Ms Teeranukul’s affidavit of 6 February 2024.60 63 Mr Mathas then referred Ms Teeranukul to an affidavit affirmed by Mr Hillam and filed in the Warden’s Court Action on 31 August 2023.61 Mr Mathas referred Ms Teeranukul to paragraph 1 of that affidavit, which deposed:62 I am the director of Goldus Pty Limited, the respondent… 64 Mr Mathas asked Ms Teeranukul whether Mr Hillam discussed the affidavit with her at the time. The witness answered:63 We are discuss everything every day, because we stay together. So we discuss everything, so this can be part of. 65 Mr Mathas then referred Ms Teeranukul to an affidavit of Mr Hillam affirmed on 18 October 2023, filed by Goldus in the Warden’s Court Action.64 In particular, Mr Mathas referred Ms Teeranukul to paragraph 7 of that affidavit, which deposed:65 John Hillam (Hillam) as its sole director and company secretary… 60 Ibid 46. 61 Transcript of proceedings dated 21 August 2024, 42-45. 62 CB 521, Affidavit of John Francis Hillam affirmed on 31 August 2023. 63 Transcript of proceedings dated 21 August 2024, 45. 64 Ibid 45; CB 527, Affidavit of John Hillam affirmed on 18 October 2023. 65 Ibid. -- 16 of 38 -- [2025] SASC 67 Hughes J 15 66 Mr Mathas asked Ms Teeranukul in cross-examination: 66 Read it to yourself please. So that paragraph suggests, does it not, that Mr Hillam remained the sole director as long as 18 October 2023 some two months after the alleged change appointing you as a director in August 2023, doesn’t it? Ms Teeranukul answered:67 I stick whatever I say into the affidavit. 67 Mr Mathas then tendered Mr Mathas’ affidavits and their receipt was not objected to.68 68 Mr Mathas asked the witness whether there was independent evidence from any person other than Mr Hillam as to Ms Teeranukul’s appointment as a director. She responded:69 I have a meeting at the… coffee shop to making this, you know, all the document. That day on 29 August I sign it and you know after I sign it, at the moment I become director, that what I believe. 69 I asked Mr Mathas to put this question to the interpreter and Ms Teeranukul was directed to give her answers in Thai, which was then interpreted. The following exchange occurred:70 XXN Q Is there any evidence from any third party to verify your appointment as a director in August 2023. A (Interpreted) Only Mr Hillam. Q The truth is you weren’t appointed in August 2023, where you. A (Interpreted) No, I was appointed on 29 August 2023. Q In fact, you were not appointed until December 2023 or later, after Mr Hillam was made bankrupt, isn’t it. A No. 70 I have given consideration to the difficulties experienced by Ms Teeranukul arising from giving evidence by video-link, and through an interpreter. Having done so, I am nevertheless satisfied that Ms Teeranukul gave no adequate explanation as to why, in her affidavit of 6 February 2024, she stated that she was appointed as a director of Goldus effective “on or around December 2023” and did 66 Transcript of proceedings dated 21 August 2024, 45. 67 Ibid. 68 Ibid 45-46. 69 Ibid 46. 70 Ibid. -- 17 of 38 -- [2025] SASC 67 Hughes J 16 not explain why she said she was appointed “on 29 August 2023” in her later affidavit dated 6 August 2024. 71 Ms Teeranukul was not asked in examination-in-chief or cross-examination about a share certificate issued by Goldus to Outalapa Iron Pty Ltd which was annexed to her affidavit affirmed on 20 August 2024. The certificate bears an issue date of 20 November 2023 and is signed by Sarobol Teeranukul as “Director/Secretary” of Goldus Pty Ltd. On the one hand, the certificate might have been relied upon as evidence that Ms Teeranukul was conducting herself, at 20 November 2023, as the director of Goldus. On the other hand, the document does not bear an ASIC stamp or a document number. Ms Teeranukul’s affidavit of 20 August 2024 does not make any statement about the certificate such as how or why it came into existence or her role, if any, in the share issue. 72 The extract from the ASIC register refers to the shareholding allocation to Outalpa as having a document number 7ECM29373.71 That number corresponds with a “Change to Company Details Changes to (Members) Share Holdings” that was notified to ASIC, and effective from, 6 December 2023.72 This is consistent with the extract annexed to Ms Teeranukul’s affidavit of 6 February 2024.73 73 Whilst this amounts to some evidence that Ms Teerankul was holding herself out as a director and/or secretary of Goldus by 6 December 2023, it is 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 that date. 74 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. 75 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. 71 CB 76 and 88. 72 CB 88. 73 CB 197, Exhibit ST1 to the affidavit of Sarobol Teeranukul affirmed 6 February 2024. -- 18 of 38 -- [2025] SASC 67 Hughes J 17 Other sources of evidence and submission about the directorship 76 Mr Mathas sought to have his affidavit of 10 May 2024 read. With one minor qualification that does not bear on the directorship issue, the affidavit was received without objection.74 77 In that affidavit, Mr Mathas deposed to having obtained copies of the orders of the Federal Court which sequestered Mr Hillam’s estate on 15 December 2023.75 He further deposed to having obtained a current and historical ASIC search of Goldus on 18 December 2023.76 His affidavit annexed ASIC documents disclosing that, at that date, Mr Hillam was the recorded director of Goldus and no additional director was recorded.77 On 28 December 2023, he checked the ASIC register again and noted that a change of officer document had been filed recently with ASIC.78 78 In the Warden’s Court Action, Teetulpa had tendered Mr Hillam’s affidavit which was affirmed on 31 August 2023,79 this date of affirmation being two days after the meeting asserted to have occurred by which Ms Teeranukul was appointed as director. The affidavit states: 80 I am the director of Goldus Pty Ltd, the Respondent in the proceedings CIV-22-006102 Teetulpa Goldfields Pty Ltd v Goldus Pty Ltd currently before the Wardens Court of South Australia (hereinafter referred to as “the proceedings”). 79 In his subsequent affidavit affirmed on 18 October 2023 and filed in the Warden’s Court Action,81 Mr Hillam again described himself in the opening paragraph as “the director of [Goldus]”,82 and made no reference to there being any other director of Goldus. Paragraph 7 of the affidavit says: John Hillam (Hillam) as its sole director and company secretary (see pages 6 of JH 3 on 27 July 2023) 80 Had the events of 29 August 2023 occurred as Goldus asserts, it might have been expected that these affidavits would have referenced the recent changes to the office-bearers of the company and omitted the use of the word ‘sole’ as a descriptor of Mr Hillam’s directorship. 81 Goldus’ written submissions filed on 24 October 2024,83 when Goldus was not legally represented, contain a set of factual assertions which provided an explanation of the gap in time between 29 August 2023 and 18 December 2023. 74 Transcript of proceedings dated 21 August 2024, 49. 75 CB 62, Affidavit of Angelos Mitchell Mathos affirmed 10 May 2024, [19]. Proceedings AGD269/2023. 76 Ibid [5], [19]. 77 CB 72, Exhibit MM2 to the affidavit of Angelos Mitchell Mathos affirmed 10 May 2024. 78 Ibid CB 172; CB 62, Affidavit of Angelos Mitchell Mathos affirmed 10 May 2024, [20]. 79 CB 521, Affidavit of John Francis Hillam affirmed on 31 August 2023. 80 Ibid [1]. 81 CB 527, Affidavit of John Hillam affirmed on 18 October 2023. 82 Ibid [1]. 83 FDN 42. -- 19 of 38 -- [2025] SASC 67 Hughes J 18 Essentially, the explanation is that despite Ms Teeranukul asking “the staff” to file the change of company details with ASIC, she later discovered that this had not occurred and that she again asked staff to complete the task, and it was completed on 17 December 2023 with ASIC receiving these documents the next day on 18 December 2023.84 I have disregarded these statements as they do not constitute affirmed evidence. There is no documentary evidence to support the explanation, and it sits uneasily with the fact that the signature of the lodger on the ASIC-filed documents is that of Mr Hillam, and not “staff”. There is no signature on the document constituting the written submissions, which is described as lodged with the Court by Ms Teeranukul for Goldus. Evidence that was lacking 82 Mr Hillam did not give oral evidence. Having been the only other person present at the company meeting, the nominated person who lodged the ASIC documents filed in December 2023, and the deponent of two affidavits put to Ms Teeranukul, it must have been apparent that he had knowledge of matters that are relevant to the issues that the Court is required to decide. 83 In the circumstances, I consider that it is open to the Court to find, and I do so find, that Mr Hillam’s evidence would not have assisted Goldus. Further, it being already open on Ms Teeranukul’s evidence to infer that the company did not appoint her as a director on 29 August 2023, I am more inclined to draw that adverse inference based on Mr Hillam’s failure to file an affidavit or for Goldus’ failure to call him as a witness. 84 The Court’s confidence in the assertions of directorship may have been bolstered if it had been provided with: − evidence of the actions taken by Ms Teeranukul as director, particularly after 15 December 2023 on behalf of the company; and/or − affidavit evidence from the company’s, or associated companies’, employees Mr Tony Tong and Ms Sue Ren, or any other person, as to their roles in the filing of documents with ASIC, and their observations of any actions taken by Ms Teeranukul as director of Goldus, in circumstances in which Mr Tong and Ms Ren have been involved in the affairs of the company with apparent authority to issue correspondence on its behalf in respect of the proceedings;85 and/or 84 Ibid [3]-[8]. 85 For example, correspondence between Mr Hillam and Mr Mathas copied in Tony Tang and Sue Ren, see CB 166, 168; correspondence from Ms Sue Ren to the Registry at CB 201; correspondence from Mr Tony Tong to the Registry at CB 204. In Mr Tong’s email to the Court Registry dated 12 December 2023 (CB 204), Mr Tong describes himself as “reaching out on behalf of Mr John Hillam, the director of Goldus Pty Ltd.” -- 20 of 38 -- [2025] SASC 67 Hughes J 19 − evidence filed in this proceeding from Mr Hillam, being the only other person who might have corroborated Ms Teeranukul’s evidence regarding the meeting on 29 August 2023; and/or − evidence of the Administrators as to their understanding of events affecting Goldus’ officers and shareholders in the relevant period. None of these were provided to the Court. As to the consequences of the manner in which Goldus advanced its case, I have taken into consideration the rule in Jones v Dunkel,86 as described in Knell v QAV Pty Ltd.87 Pritchard and Vaughan JJA said at [96]-[97]: The content of the rule in Jones v Dunkel is uncontroversial. Two consequences may flow from the unexplained failure of a party to call a witness who that party may be expected to call. First, the court may infer that the evidence of the absent witness would not assist the case of the party. Second, the court may draw an inference unfavourable to the party with greater confidence. In the latter case the inference must already be available on the evidence. Also, the uncalled witness must be one who appears to be in a position to cast light on the facts relied on as the ground for the inference. However, the rule in Jones v Dunkel does not permit an adverse inference that the uncalled evidence would have been positively damaging to the party. The absence of the witness cannot be used to make up any deficiency of evidence. Accordingly, the rule in Jones v Dunkel is accepted to be an application of the maxim that evidence is to be weighed according to the proof which it was within the power of one side to have produced and in the power of the other to have contradicted. (Citations omitted) Conclusions in relation to the first referred question 85 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. 86 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. 87 I cannot make a positive finding on the balance of probabilities of the existence of a director of Goldus after 15 December 2023. 86 (1959) 101 CLR 298. 87 [2020] WASCA 23. -- 21 of 38 -- [2025] SASC 67 Hughes J 20 88 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. 89 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. Question 2: Was Teetulpa prohibited from commencing the proceedings in the Warden’s Court? 90 The second referred question requires consideration of Part 5.3A of the Corporations Act 2001 and in particular sections 444D, 444E and 444G, and consideration of the Goldus DOCA,88 particularly the moratorium on proceedings against Goldus contained in clause 10. 91 Goldus did not object to the commencement of the Warden’s Court Action on the basis that Teetulpa was required, and did not have, a Federal or Supreme Court’s permission to do so. The question as to whether the Warden’s Court Action required such a grant was first raised on the appeal by the Judge assigned to hear the interlocutory arguments. 92 Goldus sought to contend that the Warden’s Court Action was irregular and a nullity. 93 Part 5.3A of the Corporations Act 2001 establishes how, by deeds of company administration, creditors may agree to forego certain rights in respect of a debtor company, with a view to securing a better return on their debts.89 The history of Part 5.3A was described by the High Court in Mighty River International Ltd v Hughes,90 in which the Court said:91 The object of Pt 5.3A is set out in the opening section of the Part, s 435A. That object is to administer an insolvent company in a way that (a) maximises the chance of the company, or its business, continuing in existence, or (b) if that is not possible, provides a better return for the company's creditors and members than would result from an immediate winding up of the company. This object is pursued by an intended flexibility or, put another way, by a wide variety of different possible deeds of company arrangement. These possibilities include extinguishing or varying debts and imposing moratoria on claims. As Finkelstein J observed in The Commonwealth v Rocklea Spinning Mills Pty Ltd, “Pt 5.3A assumes that it might often be necessary to extinguish by composition or bar certain claims”. Similarly, in the Explanatory Memorandum to the Bill that introduced what became Pt 5.3A, it was suggested that a deed of company arrangement may commonly provide for “some form of compromise of debts, such as repayment of debts by delayed instalments”. Consistently with this object, Pt 5.3A creates a structured, sequential process for the creation and 88 CB 135, Exhibit MM2 to the affidavit of Angelos Mitchell Mathos affirmed 10 May 2024. 89 Ibid CB 137. 90 (2018) 265 CLR 480. 91 Ibid [7]. -- 22 of 38 -- [2025] SASC 67 Hughes J 21 duration of a deed of company arrangement. Five steps should be emphasised in the sequential process that gives rise and effect to a deed of company arrangement. (Footnotes omitted) 94 A moratorium clause in a DOCA is to be read subject to the Court’s power to grant leave.92 95 The DOCA was executed on 11 May 2018.93 Mr Hillam was not, at that point in time, a director of Goldus. He was a director of Australian Mining Pty Ltd (Australian Mining). The parties to the DOCA are Goldus, John Hillam, Courela Minerals Pty Ltd, Sathya Holdings Pty Ltd and Australian Mining.94 One of the effects of the DOCA was to bring Goldus under the control of an entity nominated by Mr Hillam.95 Subsequently, RnD Funding appointed a controller of Australian Mining.96 The relevance of this limited representation of company interactions is to illuminate Goldus’ assertions that, despite not being named as a party, Australian Mining was the driving force behind the Warden’s Court Action. 96 For the purposes of determining whether Teetulpa required leave to commence that action, it is necessary to consider the terms of the DOCA. It contains the following definitions relevant to the exercise before this Court:97 Court means the Supreme Court of South Australia or the Federal Court of Australia; Creditor means a person who has a debt payable by or claim against the Company whether present or future, certain or contingent, ascertained or sounding only in damages, the circumstances giving rise to which occurred on or before the Relevant Date; Creditor’s Claim means, in relation to a Creditor, the Creditor’s debt payable by or Claim against the Company as at the Relevant Date; Deferred Creditor means Hillam, Courela, Sathya, Australian Mining and any related entity of any and all of them; EL means Exploration Licence; … Hillam entities means John Hillam personally and companies and persons associated with John Hillam. … 92 Hoath v Connect Internet Services (2006) 229 ALR 566, [192] (White J). Adelaide Brighton Cement Limited, in the matter of Concrete Supply Pty Ltd v Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement) (2018) 124 ACSR 389, [30] (Besanko J). 93 CB 133, Exhibit MM2 to the affidavit of Angelos Mitchell Mathos affirmed 10 May 2024. 94 Ibid CB 151-152. 95 CB 135, Exhibit MM2 to the affidavit of Angelos Mitchell Mathos affirmed 10 May 2024, cl [9.2]. 96 Goldus Pty Ltd (Subject to a Deed of Company Arrangement) v Cummins (No 4) (2021) 157 ACSR 118. 97 CB 135, Exhibit MM2 to the affidavit of Angelos Mitchell Mathos affirmed 10 May 2024, cl [1]. -- 23 of 38 -- [2025] SASC 67 Hughes J 22 ML means Mining Licence; … Related entity has the meaning ascribed to it by s 5 of the Bankruptcy Act 1966; 97 Clause 4 creates a fund and by clause 4.2 populates it with certain sums of money. Clause 4.3 provides:98 All other assets of the Company, including any and all ELs and MLs, any entitlement to royalties and any resource and production payments that are or may become payable to the Company by Magnetite Mines Ltd, are not included in the Fund. 98 Clauses 5.7 to 5.11 make provision for parties to the Deed to do certain things such as to proceed with the sales and transfers of certain property. 99 Section 7.3 of the Deed provides for various releases to be given to Goldus by the creditors as follows:99 Hillam, Courela, Sathya, Australian Mining and all other Hillam Entities will discontinue any and all proceedings that have been issued by them or any of them against the Company, but otherwise do not release the Company from any claims they have or purport to have, except as otherwise provided for in this deed. 100 Clause 10 of the DOCA is entitled “Moratorium” and relevantly states that:100 … 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. 98 Ibid cl [4.3]. 99 Ibid cl [7.3]. 100 Ibid cl [10]. -- 24 of 38 -- [2025] SASC 67 Hughes J 23 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. 101 The relationship between the Corporations Act 2001 and the DOCA was described in Goldus Pty Ltd v Australian Mining Pty Ltd (Recs and Mgrs Apptd).101 I respectfully adopt the analysis of Beach, Derrington and Halley JJ who said at [79]-[88]:102 First, the DOCA derives its force and effect from Part 5.3A of the Corporations Act and particularly ss 444D and 444G and binds the relevant company, all creditors concerning claims arising on or before the s 444A(4)(i) day, the company’s officers and members and the DOCA administrators. Accordingly, the DOCA is more than a contract. As said by the majority in MYT Engineering Pty Ltd v Mulcon Pty Ltd at [25]: It may be, however, that the deed of company arrangement is not simply a contract. No doubt a deed of company arrangement will contain stipulations and promises of a kind found in contracts between parties. But a deed of company arrangement is more than a set of promises between those who are parties to it. (The only essential parties to a deed of company arrangement are the company and the deed administrator (s 444B(6)). First, it is a document that, on execution, effects a change in status of the company — from a company under administration to a company subject to a deed of company arrangement. Secondly, it is a document that contains terms that bind all creditors of the company “so far as concerns claims arising on or before the day specified in the deed under paragraph 444A(4)(i)” (s 444D (1)). Those obligations stem from the combined operation of the deed of company arrangement and the Law, not from any contractual bargain between the persons bound, and are imposed on all creditors — not just those who voted in favour of any composition or moratorium reflected in the deed of company arrangement. Second, the DOCA can also however have contractual force to the extent that it contains and purports to bind persons or entities in addition to the company, its creditors and other s 444G persons or entities, particularly where those additional persons or entities are themselves parties to the DOCA. Third, as the DOCA can be seen to operate as a form of statutory instrument, in terms of the construction of a particular provision one must focus on its text read in the context of the other provisions of the DOCA. Further, broader contextual matters may be considered such as the terms of other documents or transactions referenced or incorporated by reference in the DOCA. Further, surrounding circumstances may be considered, but given the status of the DOCA there are significant limitations. In that respect, and generally speaking, we agree with what the primary judge said (Goldus (No 4) at [182] to [184]): 101 [2023] FCAFC 27. 102 Ibid. -- 25 of 38 -- [2025] SASC 67 Hughes J 24 As has been indicated, the evidence of the drafts exchanged and matters known to Mr Hillam and others about the context which provided part of the background (not evident from the terms of the DoCA itself) are not relevant to the construction of its terms. Even though the DoCA is a commercial instrument, it is public in character and affects the rights of other parties, particularly creditors, who are not parties to the dealings that preceded the terms. It is presented to the creditors, and in the present case the Court, for approval. Those parties will consider the instrument divorced from its context. The DoCA operates as a form of statutory instrument which has binding effect upon the persons specified in s 444D and s 444G of the Corporations Act. For those reasons, it is necessary to focus upon the terms of the instrument itself and perhaps matters of context that will be known to anyone interested in the affairs of the company. As to these matters see: MYT Engineering Pty Ltd v Mulcon Pty Ltd [1999] HCA 24; (1999) 195 CLR 636 at [25] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Reed Constructions Australia Ltd v DM Fabrications Pty Ltd [2007] NSWSC 1190 at [20]–[24] (Barrett J); City of Swan v Lehman Brothers Australia Ltd [2009] FCAFC 130; (2009) FCR 243 at [5]–[9] (Stone J), [62]–[63] (Rares J) expressing views not disturbed on appeal to the High Court); and Re Antqip Hire Pty Ltd (subject to deed of company arrangement (in liq) [2020] NSWSC 487 at [65]–[73] (Rees J). If indeed a deed of company arrangement is to be understood in a particular commercial context then the appropriate course is for those matters to be recited within the deed. Then parties whose interests will be affected by the terms of the instrument (and who will have to decide whether to challenge its operation) will be able to understand the manner of its operation by considering its terms. Fourth, the DOCA must be construed in light of the object of Part 5.3A set out in s 435A and only in a fashion consistent with the provisions of Part 5.3A. Additionally but subject to what we have said, the following principles that are usually applied in construing the terms of a commercial instrument also relevantly apply in the present context. First, it is necessary to ask what a reasonable businessperson would have understood the terms to mean, and in that regard consideration must be given to the language used, the surrounding circumstances known to the parties and the commercial purposes or objects secured by the contract; see Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 at [35] per French CJ, Hayne, Crennan and Kiefel JJ. Second, the terms must be given a businesslike interpretation. The task should be approached on the basis that the parties intended to produce a result that made commercial sense given the evident commercial object; see Electricity Generation Corporation at [35] and Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603 at [19] per Allsop P (as his Honour then was). But care must be taken to ensure that it is the evident commercial object that is being given effect, recognising that minds may differ as to the commerciality of a particular outcome. There is a difference between resolving an ambiguity in language so as to avoid a construction which is commercially unreasonable or plainly inconsistent with the evident commercial object of the instrument and choosing between alternatives on the basis of a sense of commercial fairness. The task is to construe the words used, rather than to remake the commercial bargain; see Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99 at 109 per Gibbs J (as his Honour then was) in dissent, but the principle is not in doubt. -- 26 of 38 -- [2025] SASC 67 Hughes J 25 Third, commercial instruments should be construed fairly and broadly without being too astute or subtle in finding defects; see Hillas & Co Ltd v Arcos Ltd [1932] UKHL 2; (1932) 147 LT 503 at 514 per Lord Wright, cited in Australian Broadcasting Commission at 109 and 110. They should be interpreted in a practical and realistic way, and not by adopting an overly theoretical approach. Words in a commercial contract should not be approached pedantically or in a manner that would be prone to defeat the evident commercial purpose of the document; see Franklins at [19]. Fourth, documents that form part of a suite of commercial instruments should be construed together. 102 Further to their Honours’ exposition, the DOCA cannot be, and does not aspire to be, inconsistent with the legislation from which it derives its vitality. I turn then, to the relevant Corporations Act 2001 provisions. Section 444D states: 444D Effect of deed on creditors (1) A deed of company arrangement binds all creditors of the company, so far as concerns claims arising on or before the day specified in the deed under paragraph 444A(4)(i). (2) Subsection (1) does not prevent a secured creditor from realising or otherwise dealing with the security interest, except so far as: (a) the deed so provides in relation to a secured creditor who voted in favour of the resolution of creditors because of which the company executed the deed; or (b) the Court orders under subsection 444F(2). (3) Subsection (1) does not affect a right that an owner or lessor of property has in relation to that property, except so far as: (a) the deed so provides in relation to an owner or lessor of property who voted in favour of the resolution of creditors because of which the company executed the deed; or (b the Court orders under subsection 444F(4). (3A) Subsection (3) does not apply in relation to an owner or lessor of PPSA retention of title property of the company. Note: Subsection (2) applies in relation to an owner or lessor of PPSA retention of title property of the company. Such an owner or lessor is a secured creditor of the company (see section 51F (meaning of PPSA retention of title property )). (4) Section 231 does not prevent a creditor of the company from becoming a member of the company as a result of the deed requiring the creditor to accept an offer of shares in the company. 103 Sub-section 444D(1) provides that a DOCA 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 clear that creditors are bound in respect -- 27 of 38 -- [2025] SASC 67 Hughes J 26 of claims against the assets of the company that may be the subject of a proof of debt. 104 Section 444E provides that a person who is bound by a DOCA cannot begin or proceed with a proceeding against the company or in relation to any of its property, except with the leave of the Court:103 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). 105 The parties did not agree whether section 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. The better view is that any moratorium imposed by a DOCA is limited to those claims and debts which exist at the relevant date. 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. 103 Corporations Act 2001 s 444E. -- 28 of 38 -- [2025] SASC 67 Hughes J 27 Is Teetulpa bound by the DOCA? 106 The DOCA binds creditors concerning claims arising on or before the relevant date. 107 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).104 108 Goldus concedes that Teetulpa was not a creditor bound by the DOCA. It was incorporated on 26 February 2021.105 It does not have claims arising on or before the relevant date, being 9 October 2017. 109 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. Is Australian Mining a creditor in the relevant sense? 110 Each of Goldus’ propositions in that contention must be separately considered. The first contention is that Australian Mining is a creditor of Goldus in the sense intended by the DOCA. 111 The terms “creditor” and “deferred creditor” are separately defined in the DOCA and not by reference to one another.106 Goldus did not assert that Australian Mining comes within the definition of “creditor”. Rather, it relied on the fact that Australian Mining is named in the DOCA as a “deferred creditor”. Goldus asserted that a deferred creditor is a sub-set of the class of creditors (as opposed to a separate class),107 but did not expand on that assertion. The wording of the two definitions does not make this evident. Nevertheless, Teetulpa conceded that Australian Mining has claims arising prior to the relevant date and in that sense is a creditor of Goldus for the purposes of the DOCA. However, it contended that Australian Mining had not brought or continued a proceeding against Goldus, and that there was no evidence before the Court of an agency relationship between Australian Mining and Teetulpa, and that in any event the conduct by Goldus upon which the Warden’s Court made its decision was (apart from a portion of the unpaid rent allegation) conduct that occurred after the relevant date. 112 Acknowledging that it is permissible to rely upon a broad context when construing the DOCA,108 I find that for the purposes of the current exercise, a 104 CB 135, Exhibit MM2 to the affidavit of Angelos Mitchell Mathos affirmed 10 May 2024, cl [1]. 105 CB 457. 106 CB 135, Exhibit MM2 to the affidavit of Angelos Mitchell Mathos affirmed 10 May 2024, cl [1]. 107 FDN 40 Written submissions of Goldus dated 4 October 2024 at [11]. 108 Goldus No 4 (n 10) [182]-[184]. -- 29 of 38 -- [2025] SASC 67 Hughes J 28 deferred creditor is a type of creditor, and that Australian Mining has or had claims against Goldus that bring Australian Mining within the terms of the DOCA. 113 However, the provision only operates in respect of circumstances prior to 9 October 2017 that created a debt payable by, or claim against, Goldus. The DOCA is an instrument that directs the future behaviour of bound parties in respect of claims that exist at the time the instrument is created. It is directed at the resolution of existing liabilities, with a view to enabling Goldus to move forward.109 It does not purport to manage new disputes or conduct arising after the relevant date. The purpose of a requirement for leave to proceed is to ensure that the Court considers whether the procedure for a proof of debt should be abandoned in favour of adjudicating the claim by proceedings, and reflects the inability of the DOCA to oust the Court’s right to quell a dispute through its own processes.110 114 Whilst Goldus made a broad assertion in its written submissions that the dispute between Goldus and Australian Mining predates the relevant date, it did not identify the circumstances and their relationship to the Warden’s Court Action. This is discussed further in considering what constitutes a ‘claim’. 115 As will be seen, whether Australian Mining is prohibited from bringing any claim against Goldus without leave, or only prohibited in respect of claims that arose prior to the relevant date, is ultimately not determinative. This is because I have concluded that Australian Mining did not bring a claim through Teetulpa, and that the proceedings do not constitute a claim at all. Was the Warden’s Court Action brought by Teetulpa as Australian Mining’s agent? 116 To the extent that Australian Mining is or was a creditor of Goldus in a general sense, Goldus further contended that it may be inferred from Teetulpa’s conduct that Teetulpa was acting on behalf of Australian Mining when Teetulpa commenced the Warden’s Court Action. 117 This contention was argued by Goldus’ lawyers (at that time) by drawing on equitable principles to assert that the circumstances of interconnectedness between Australian Mining and Teetulpa and their common purposes were such that it would be an abuse of process for the Court not to require Teetulpa to obtain a grant of leave before proceeding.111 Goldus, when subsequently unrepresented, mounted this argument on the bolder scaffold of an asserted implied agency relationship between Australian Mining and Teetulpa.112 109 Brash Holdings Ltd v Katile Pty Ltd [1996] 1 VR 24, 28 (Brooking, Phillips and Hansen JJ). 110 Adelaide Brighton Cement Limited, in the matter of Concrete Supply Pty Ltd v Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement) (2018) 124 ACSR 389, [29]-[30] (Besanko J). 111 FDN 40, Written submissions of Goldus dated 4 October 2024. 112 FDN 43, Written submissions of Goldus dated 24 October 2024; FDN 51, Reply Submissions of Goldus dated 8 November 2024. -- 30 of 38 -- [2025] SASC 67 Hughes J 29 118 Both arguments drew upon the assertion that Teetulpa relied on Australian Mining’s legal rights to mine the tenements in order to satisfy the Warden’s Court that a recommendation should be made for the transfer of the tenements to Teetulpa. Goldus argued that Australian Mining will reap the benefits of the orders made in the Warden’s Court Action. 119 Goldus did not contend, or lead any evidence in the Warden’s Court Action, that Australian Mining was the “true party” in respect of the Warden’s Court Action proceedings. This is notwithstanding the fact that the relationship between Goldus, Australian Mining and Teetulpa was the subject of evidence in the original proceedings. In fact, Goldus sought to rely upon the fact that Australian Mining was not a party to the action to bolster an argument that certain evidence sought to be filed by Teetulpa ought not be admitted. Goldus objected to the Court’s admission of certain parts of the affidavits of Joe Nakat filed by Teetulpa, which referred to Australian Mining and Synergy Pty Ltd. The objection was based on the assertion that neither Australian Mining nor Synergy Pty Ltd were parties to the proceedings.113 The Court overruled that objection, and the Auxiliary Warden considered himself able to refer to the relationships between Goldus and Australian Mining, including the disputes between them, in determining the proceedings.114 The decision demonstrates that Mr Hillam had at least attempted to convey the antipathy and commercial disputation between Goldus and its joint venture partner Australian Mining. Even in the absence of an express submission on the issue, if an agency relationship between Australian Mining and Teetulpa existed, it might be thought to have been apparent to the Auxiliary Warden on the evidence that the “correct” party had not been named. 120 Further, the contention that Teetulpa was the agent of Australian Mining was not advanced by Goldus in its first written submissions or at the hearings before this Court on the referred questions, while Goldus was legally represented. It was only after oral submissions were concluded, and the parties were entitled to file further submissions, that Goldus ventilated this contention fulsomely. 121 Goldus’ reply submissions assert that Australian Mining has rights to mine the tenements that were the subject of the Wardens Court Action proceedings.115 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 22 October 2019, that Mr Nakat is a director of Teetulpa, and that Mr Nakat also holds 50% of the shares in Teetulpa.116 122 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”.117 It was 113 The Warden’s Court action (n 1) [37]. 114 Ibid. 115 FDN 40, Written submissions of Goldus dated 4 October 2024 at [12]. 116 Ibid [18]-[20]. 117 Ibid [22]. -- 31 of 38 -- [2025] SASC 67 Hughes J 30 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. 123 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.118 It was not put to him that Teetulpa was the agent of Australian Mining for the purposes of those proceedings. 124 Goldus’ reply submissions filed on 8 November 2024 arguably purported to place further evidence before the court by way of the following assertions:119 Teetulpa conducting Mining Operations in ML 5550 together with other parties and illegal mining operations in MPL 28 in September and October 2023 and at other times. All mining operation in ML 5550 & especially those in MPL 28 are all deemed illegal causing $millions in damages to Goldus tenements. … Teetulpa’s claim herein that there is no factual basis for the inference is incorrect. The relationship between Teetulpa and Australian Mining and the 1 June 2022 application shows that Teetulpa acted on behalf of Australian Mining under an Implied Agency Agreement when it initiated these proceedings. By making the application in Teetulpa’s name it was clear that Teetulpa attempted to bypass the rules of the DOCA, Moratorium and Part 5.3A. The reference to the appeal and conduct leading to the Wardens Court decision is disputed in Goldus appeal in the ERD Court. The specific details in the 22 November decision are not specifically part of the two questions being asked in the Supreme Court apart from Nullity and they are generally not relevant. This does not negate the obligation to follow the proper legal procedures. Therefore, Teetulpa’s actions amount to an Abuse of Process, both by using Australian Mining rights as its agent under an Implied Agency Agreement and in attempting to circumvent the moratorium by making an application in the first instance in Teetulpa’s name. 125 To the extent that the Reply contains factual assertions not supported by affidavit or oral evidence, I disregard them as not having been established on an appropriate evidential basis. However, more importantly, Goldus’ submission does not establish any agreement, express or implied, between the parties. There were no terms of any such agreement advanced. Mr Mathas on behalf of Teetulpa conceded that the bringing of the Warden’s Court Action was “opportunistic”.120 It was denied, however, that Teetulpa acted as agent for Australian Mining, or that the bringing of the action constituted an abuse of process.121 118 The Warden’s Court action (n 1) [63]. 119 FDN 51, Reply Submissions of Goldus dated 8 November 2024, pp 8-9. No author is listed on the document. 120 Transcript of proceedings dated 21 August 2024, pp 21. 121 FDN 49 ‘Respondent’s Submissions in reply’, pp 4, 8. -- 32 of 38 -- [2025] SASC 67 Hughes J 31 126 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.122 127 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. 128 There is insufficient evidence to establish whether there was an agreement between Australian Mining and Teetulpa or what its terms might have been. More importantly, however, any agreement that might be established as existing or inferred has no effect on the legal status of the parties to the proceedings in the Warden’s Court or the orders made in respect of those parties. The Warden’s Court was not asked to recognise the applicant as acting as an agent for another. The Warden’s Court was asked to make an order recommending Teetulpa as an appropriate party to which the tenements might be assigned. The contention that Teetulpa was bound by the DOCA in respect of the Warden’s Court action, in this sense, fails. 129 The alternative version of this argument remains to be considered. The alternative version was that it would be an abuse of process to allow Teetulpa to take the benefit of the Auxiliary Warden’s recommendation in circumstances in which Australian Mining had engineered a way to avoid the moratorium and make an attack on Goldus’ property. Goldus submitted that because Australian Mining agreed to be bound by the DOCA, it abused the Court’s process by instituting proceedings for its own benefit using Teetulpa as its agent, or by failing to identify itself as the true party to the action.123 130 What Goldus did not do is explain how a conclusion that there had been an abuse of process bore upon the question of whether leave was required by Teetulpa. Goldus submitted that the original judgement should be “set aside”. However, the abuse of process argument did not translate into any submission that could be acted upon on the referred question as to whether leave was required to have been obtained. Rather, Goldus argued that, because leave had not been granted, the Warden’s Court Action was “irregular” and an “incompetent proceeding”. But this is to conflate the issue of whether there was an abuse of process, with the effect of a failure to undertake a procedural step on the legal status of the judgement. 122 Mining Act 1971 s 15AB. 123 FDN 40 Written submissions of Goldus dated 4 October 2024 at [43]. -- 33 of 38 -- [2025] SASC 67 Hughes J 32 131 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. 132 I do not consider that the abuse of process contention assists in the answering of the referred question. Not a claim arising on or before the relevant date in any event 133 The final issue that Goldus sought to persuade the Court of was that the Warden’s Court Action was a “claim” against Goldus in the sense envisaged by the Corporations Act 2001 and the DOCA. For the following reasons, I find that it was not. 134 Clause 11 of the DOCA provides:124 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) 124 CB 135, Exhibit MM2 to the affidavit of Angelos Mitchell Mathos affirmed 10 May 2024, cl [11]. -- 34 of 38 -- [2025] SASC 67 Hughes J 33 135 Whilst the meaning of claim is to be construed broadly so as to give effect to the underlying purpose of allowing the company to start afresh125. 136 As such, the term “claim’ must be understood in its insolvency context. The term concerns that which would be provable on a winding up. As the High Court said in Lehman Brothers Holdings Inc v City of Swan: 126 The provisions of the Act examined thus far in these reasons provide no compelling reason to confine the terms upon which creditors might agree to the compromise of claims against the company by the making of a deed of arrangement under Pt 5.3A. The subject matter, scope and purpose of the provisions that have been mentioned readily yield the inference that the subject matter of the compromise or arrangement must be debts or claims against the company. And the debts or claims the subject of the compromise or arrangement can, and ordinarily will, extend to any debt or claim that would be provable in a winding up. That is, in the words of the provision identifying provable debts and claims (s 553(1)), the debts or claims the subject of the compromise or arrangement, whether by way of moratorium or release, will be ‘all debts payable by, and all claims against, the company (present or future, certain or contingent, ascertained or sounding only in damages), being debts or claims the circumstances giving rise to which occurred before the relevant date’. 137 In BE Australia WD Pty Ltd v Sutton,127 Campbell JA distinguished a claim in the ordinary legal sense and a claim under the Corporations Act as follows:128 However, just because something is a ‘claim’ in one sense of the word does not mean necessarily mean that it is a ‘claim’ within the meaning of s 553. The particular shade of meaning that ‘claim’ has in s 553 can be ascertained from the purpose of the section. That purpose is that all the legal obligations to which a company is subject should be ascertained, and each of them valued as at a common date, so that those obligations can be taken into account in a winding up or other administration that is under way. Someone has a ‘claim’ within the meaning of s 553 if he or she has a basis, founded on an existing legal right, for asserting a right to participate in the division of the assets of the company … 138 The authorities concerning the meaning of “claim” were recently summarised by Waller J in PK Riddell Investments Pty Ltd v Onwards Up and Gone Pty Ltd,129 following which his Honour concluded:130 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 … 125 Sons of Gwalia Ltd v Margaretic (2007) 231 CLR 160 [171]-[172] (Hayne J); Brash Holdings Ltd v Katile Pty Ltd [1996] 1 VR 24, 28 (Brooking JD, Phillips and Hansen JJ). 126 Lehman Brothers Holdings Inc v City of Swan (2010) 240 CLR 509 [38] (French CJ, Gummow, Hayne and Kiefel JJ). 127 (2011) 82 NSWLR 336. 128 Ibid [105]. 129 (2024) 73 VR 219. 130 Ibid [78]. -- 35 of 38 -- [2025] SASC 67 Hughes J 34 139 What is evident is that a “claim” in the sense it is used in the DOCA is 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. 140 The order that Teetulpa sought and obtained was not in respect of a debt payable by Goldus or “claim” against Goldus for the purposes of the DOCA. Rather, the proceedings were an application for an adjudication of Goldus’ liability to forfeit certain rights to the Crown. 141 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 62.131 • 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.132 • 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.133 • 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.134 142 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. 131 Mining Regulations 2020. 132 Mining Act 1971 s 70(2). 133 Ibid s 70(3)(a). 134 Ibid s 70(3)(b). -- 36 of 38 -- [2025] SASC 67 Hughes J 35 Conclusions in relation to the second referred question 143 I find the following in relation to the second referred question of whether Teetulpa was prohibited from commencing the proceedings in the Warden’s Court: − Teetulpa was not a creditor of Goldus at the relevant date. − Teetulpa has not been shown to have been acting as the agent of Australian Mining. − The Warden’s Court Action was not a “claim” for the purposes of the DOCA. 144 As a result of the above findings, Teetulpa did not need the permission of a Court under Part 5.3A of the Corporations Act 2001 to commence the Warden’s Court Action. What would the effect have been on the orders if leave had been required and not sought or given? 145 Notwithstanding the answer to the second question, the Court observes that if the answer had been different, there would still be a question to be answered as to whether the failure to obtain leave to proceed was one that had immediate effect upon the legal status of the decision. 146 Goldus referred the Court to Taouk v Assure (NSW) Pty Ltd,135 in which the Court of Appeal was required to consider a summons seeking leave to appeal from a decision of a judge of the Supreme Court of NSW issued in December 2018. The respondent company went into administration the following month. The Court of Appeal dismissed the summons for leave to appeal because the appellant had not obtained consent or leave to proceed with the appeal. Whilst that authority provides an example of a proceeding not being able to be continued as a result of a lack of leave, it does not address the status of orders that have been procured where there is an absence of leave that was required. 147 That issue was considered in Emanuele & Anor v Australian Securities Commission & Ors,136 on an application for special leave to appeal to the High Court from a decision of the Federal Court to wind up a group of companies in circumstances in which leave had not been obtained but was required pursuant to s 459P(2) (as it then was) of the Corporations Act. The High Court held that the failure to obtain leave did not vitiate the orders and the defect could be cured nunc pro tunc. The plurality observed that the status of the order of an inferior court will depend on whether the requirements is substantive such as to condition an exercise of jurisdiction, or procedural.137 However, that issue is not required to be 135 [2019] NSWCA 224 (Macfarlan and Payne JJA, and Emmett AJA). 136 (1997)188 CLR 114. 137 At 131 (per Toohey J, Kirby and Dawson JJ concurring). -- 37 of 38 -- [2025] SASC 67 Hughes J 36 determined in the current proceedings, as leave was not required for the Warden’s Court Action to be commenced. Orders 148 The question of law referred to the Court pursuant to s 20A of the Environment, Resources and Development Court Act 1993 are answered 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. 149 The parties have liberty to apply for consequential orders and the proceedings are otherwise returned to the Environment, Resources and Development Court for disposition. -- 38 of 38 --