Park, in the matter of IG Power (Callide) Ltd (Administrators Appointed) (No 4) [2024] FCA 1316

Park, in the matter of IG Power (Callide) Ltd (Administrators Appointed) (No 4) [2024] FCA 1316

The pre-emption rights in cll 9A and 9B of the JVA do not bind IGPH or IGEH as they are not parties to the JVA and there is no evidence of agency authorising IGPC to bind them. No good faith or collateral contract extends those obligations. Clause 9B cannot operate absent a validly nominated Ultimate Holding Company. Accordingly, the administrators are justified in proceeding with the contemplated share sale without compliance with the pre-emption clauses and no breach of the JVA or implied obligations arises by such sale.

Parties
First Plaintiff: John Richard Park and Benjamin Peter Campbell in their capacity as joint and several administrators of each of the second to fifth plaintiffs; Second Plaintiff: IG Energy Holdings (Australia) Pty Ltd (Administrators Appointed); Third Plaintiff: IG Power Holdings Limited Pty Ltd (Administrators Appointed); Fourth Plaintiff: IG Power Marketing Pty Ltd (Administrators Appointed); Fifth Plaintiff: IG Power (Callide) Ltd (Administrators Appointed); First Interested Person: Callide Energy Pty Ltd; Second Interested Person: Sev.en Global Investments a.s.; Third Interested Person: Union Star Development Limited
Jurisdiction
Australia
Judgment Date
15 November 2024
Procedural Posture
Application for Directions (corporations – Administration) / Judgment After Opposed Interlocutory Application
Outcome
Direction made in favour of applicants (administrators)
Legal Topics
Administrators' Personal Liability, Directions Under S 90 15 IPS, Pre Emption Rights in Joint Ventures, Interpretation of Joint Venture Agreements, Privity of Contract, Agency in Company Law
Corporations Law Insolvency Commercial Law Administrators' Personal Liability Directions Under S 90 15 IPS Pre Emption Rights in Joint Ventures Interpretation of Joint Venture Agreements Privity of Contract +1 more

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Parties

John Richard Park and Benjamin Peter Campbell in their capacity as joint and several administrators of each of the second to fifth plaintiffs

First Plaintiff

IG Energy Holdings (Australia) Pty Ltd (Administrators Appointed)

Second Plaintiff

IG Power Holdings Limited Pty Ltd (Administrators Appointed)

Third Plaintiff

IG Power Marketing Pty Ltd (Administrators Appointed)

Fourth Plaintiff

IG Power (Callide) Ltd (Administrators Appointed)

Fifth Plaintiff

Callide Energy Pty Ltd

First Interested Person

Sev.en Global Investments a.s.

Second Interested Person

Union Star Development Limited

Third Interested Person

Procedural Posture

Application for Directions (corporations – Administration) / Judgment After Opposed Interlocutory Application

Legal Issues

  1. 1 Do pre-emption rights in the Joint Venture Agreement apply to the proposed share sale by the administrators?
  2. 2 Are the holding companies of IGPC bound by the JVA and its pre-emption rights?
  3. 3 Is there any agency or collateral contract binding the holding companies?

Ratio Decidendi

The pre-emption rights in cll 9A and 9B of the JVA do not bind IGPH or IGEH as they are not parties to the JVA and there is no evidence of agency authorising IGPC to bind them. No good faith or collateral contract extends those obligations. Clause 9B cannot operate absent a validly nominated Ultimate Holding Company. Accordingly, the administrators are justified in proceeding with the contemplated share sale without compliance with the pre-emption clauses and no breach of the JVA or implied obligations arises by such sale.

Court Disposition

Direction made in favour of applicants (administrators)

Orders

  • Pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) (Sch 2 to the Corporations Act 2001 (Cth)), administrators of the IG Power Group are justified in conducting the administrations on the basis that a sale of shares as described does not engage pre-emption obligations or constitute a breach of the...
  • Any person with sufficient interest may apply to discharge or modify the orders with proper notice.