Commercial litigation; Contract Law; Corporate Governance; Corporate Insolvency; Regulatory investigations.
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Acted for Daniel Woodhouse and Hayden White in their capacity as the administrators and subsequently deed administrators of then ASX listed gold producer, Calidus Resources Limited, and each of its wholly owned subsidiaries on the restructure of the group. The engagement included acting on a successful application to extend the convening period for the second meeting of creditors to allow time to conduct a sale process (White (Administrator), in the matter of Calidus Resources Limited (Receivers and Managers Appointed) (Administrators Appointed) [2024] FCA 827) and a successful application to the Supreme Court of Western Australia under s 444GA of the Corporations Act 2001 (Cth) to permit the transfer of all shares in Calidus Resources Limited to an entity affiliated with the Creasy Group.
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Acted for Karli Holdings Pty Ltd in Supreme Court of Western Australia proceedings COR 109 of 2023 concerning an urgent application made by Paddington Gold Pty Ltd to set aside deeds of company arrangement on a number of grounds, including so that insolvent trading claims could be pursued that were alleged to arise at a time when the directors were availing themselves and the relevant companies of the safe harbour protections in the Corporation Act 2001 (Cth). The matter was listed for trial on an urgent basis and settled on the first day of trial (Paddington Gold Pty Ltd v Wave Pty Ltd (Subject to a Deed of Company Arrangement) [No 2] [2023] WASC 420).
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Acted on, and provided strategic advice in relation to, M&A disputes including disputes as to pre-emption rights, termination rights and earnout and completion payments and related expert determinations including appearing as junior trial counsel for the plaintiff in C H Leaman Investments Pty Ltd v Tuesday Enterprises Pty Ltd as trustee for The Steele Investment Trust [2022] WASC 447, which concerned the defendants’ repudiation of a share sale agreement.
- Acted on public and private company board and stakeholder disputes across a number of sectors including:
- advising on corporate governance processes, inconsistencies between constituent documents and prior non-compliance
- providing strategic advice on the management of contentious meetings and the potential to utilise corporate processes to favourably resolve disputes
- making and responding to requests for inspection of company share registers and other company information
- addressing allegations against board members and key management personnel including for breach of director duties associated with unauthorised payments, the diversion of assets and corporate opportunities and entry into other related party transactions
- providing ongoing strategic advice to shareholders of high value closely held private companies in respect of long running disputes comprising an array of complex issues, ultimately resulting in the successful sale of the clients’ interests
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Acted on Hongkong Xinhe International Investment Company Limited v Bullseye Mining Limited & Ors COR 83 of 2020, a lengthy oppression action relating to the affairs of Bullseye Mining Limited, a public unlisted company. The trial commenced in September 2021 and was subsequently listed for a series of dates throughout 2022. During that time, it was necessary to pivot to deal with developments in the conduct of Bullseye’s affairs including Bullseye implementing changes to its board and receiving competing takeover bids that resulted in related applications being made to the takeovers panel.
- Acted on proceedings commenced by members of the Yindjibarndi Aboriginal Corporation RNTBC claiming relief for alleged oppressive conduct within the meaning of s 166-1 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), including:
- successful opposition of the defendant’s application for leave to issue subpoenas to obtain documents for the purposes of the defendants’ application to dismiss the action: Sandy v Yindjibarndi Aboriginal Corporation RNTBC [2019] WASC 322
- successful defence of an application to dismiss the entire proceeding as an abuse of process: Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 2] [2019] WASC 328
- successful application for special costs orders and defence of the contention that the indemnity principle precluded the plaintiffs recovering their costs: Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 3] [2020] WASC 88
- successful application for leave to use documents disclosed in earlier proceedings, which was an important decision clarifying the operation of the Harman principle: Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 5] [2020] WASC 470
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Engaged with regulators and acted on investigations conducted by the Australian Securities and Investment Commission, the Australian Federal Police and the Therapeutic Goods Administration involving issues including suspected fraud, greenwashing and restraints on advertising.
- Advised on the enforcement and release of security including advising:
- a major lender to, and minority shareholder in, an international engineering company in respect of the enforcement of their security in the context of other ongoing disputes
- an ASX-listed company on restraining the enforcement of security held over its assets by a Singaporean listed company pending the constitution of a tribunal of the SIAC to adjudicate an underlying dispute
- a DOCA proponent on court action available to compel the release of junior security interests to enable effectuation of a DOCA
- a public unlisted company in respect of conduct of a former director that included registering interests on the PPSR against company property in favour of his related entities without a proper basis to do so, which registrations were successfully removed following service of amendment demands and lodgement of amendment statements with the Registrar of Personal Property Securities
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Acted for a former employee of Carna Group Pty Ltd in successful defence of a cross-claim made by Griffin in Carna Group Pty Ltd v The Griffin Coal Mining Company WAD 354 of 2018 alleging that any loss suffered by Carna was caused by the former employee acting in breach of duties owed to Carna, rather than by Griffin.
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Acted for the owners of Bocelli Espresso, a café then located in Forrest Place, in their private nuisance action against ISPT claiming damages in respect of the disruption to their business caused by the over $100 million redevelopment of Forrest Chase and responding to ISPT’s counterclaim alleging the café owners should be liable for intentionally interfering with ISPT’s contractual relations.
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Acted on disputes concerning the management and control of trust assets including acting for the plaintiff in Van Duren v Hammond & Roberts Pty Ltd CIV 2270 of 2016 in seeking orders under the Trustees Act 1962 (WA) to replace the trustee of a unit trust, alternatively to wind up the trust, and related relief.
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Advised and acted on all stages of project and mining service contract disputes from providing early advice in respect of variation and delay notices and acting on subsequent claims, including acting for Crushing Services International Pty Ltd in defence of misleading and deceptive conduct and contract claims relating to the Carina Iron Ore Rail Loop and Haul Road Earthworks at the time when those claims were resolved.
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Acted on disputes concerning the alleged misuse of company information by former employees including to manufacture equipment and produce and market pre-made salads.
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Acted on contentious statutory demand proceedings including the successful opposition to a Supreme Court application to set aside a statutory demand issued to a director of an Australian listed mining company (Aus Asia Minerals Ltd v Ball [2015] WASC 399) and related applications before the Court of Appeal (Asia Minerals Ltd v Ball [2015] WASCA 251 [2015] WASCA 251 (S)).
