Who watches the watchers? - Federal Court dismisses application for the appointment of a special purpose liquidator
In the case of Lewis v Battery Mineral Resources,1 the Federal Court considered an application for the appointment of a special purpose liquidator (SPL) or alternatively a reviewing liquidator (RL) to investigate and report on the sale of the assets of Battery Mineral Resources Ltd (in liq) (BMR) during the voluntary administration of BMR.
The plaintiffs claimed that the sale of BMR’s assets to Weston Energy LLC (Weston), a secured creditor and major shareholder of BMR, had been conducted with undue haste.
The liquidators (and former administrators) of BMR did not oppose the application, but put on evidence to assist the Court in understanding the background to the dispute.
In considering the application, the Court was required to decide whether there was any power and/or proper basis to appoint a SPL or a RL to investigate the conduct of the incumbent liquidators in their previous role as voluntary administrators.
BMR carried out exploration and mining for cobalt, lithium and other minerals used in making batteries. The first plaintiff, Mr Lewis, founded BMR in 2016 and was its inaugural director and shareholder.
Weston, an American investment company, subsequently became a major shareholder of BMR and its directors held a majority on the board of BMR. Weston was also a secured creditor of BMR.
In May 2018, BMR entered into an agreement with ESI Energy Services Inc (ESI), a related entity of Weston, for the purposes of ESI funding BMR’s development of a cobalt project in Canada (the ESI Agreement). Under the ESI Agreement, ESI paid BMR the sum of CAD10m which was said to be non-refundable unless BMR failed to use commercially reasonable efforts to advance the project, in which case the CAD10m would become immediately repayable to ESI.
In early 2019, BMR began experiencing cash flow difficulties and on 11 November 2019 its board resolved to place it into voluntary administration.
At the time that BMR was placed into administration, the company and its subsidiaries had less than $30,000 in cash, and unsecured debts of over $1.8m of which 83% was over 90 days overdue.
It appears that very shortly after their appointment, the administrators received an offer from Weston to acquire BMR’s assets for $21.2m, made up of forgiveness of Weston’s secured debt of $9.4m, forgiveness of what was said to be BMR’s liability to repay ESI the CAD10m under the ESI Agreement, cash of $600,000, plus immediate payment of certain key debts of BMR and its subsidiaries of around $1m (the Weston Offer). The Weston Offer also required completion to occur “as soon as possible, preferably during the week commencing 25 November 2019”.
On 12 November 2019, the administrators sent a circular to shareholders seeking urgent expressions of interest for either a recapitalisation or a sale of its subsidiaries with non-binding indicative offers due by 20 November 2019.
On 20 November 2019, a consortium of BMR’s shareholders (which included the plaintiffs) submitted a $15 million recapitalisation offer for 150m shares in BMR at 10c. The offer provided that the $15m would be used to clear the $9.4m debt to Weston, with BMR to retain around $4m in working capital and the remainder to be used to pay other creditors (the Shareholder Offer). The Shareholder Offer was also conditional on (amongst other things):
A committee of inspection (COI) was appointed on 21 November 2019, and on 22 November 2019 the administrators provided the COI with a confidential report analysing the Weston Offer and Shareholder Offer, and recommending that the Weston Offer be accepted. The report noted that it was unclear as to the extent to which the Shareholder Offer would see creditors other than Weston being repaid given the working capital to be retained by BMR under that offer.
The first plaintiff was a member of the COI and argued against the Weston Offer but left the meeting before the COI voted on the matter. The COI ultimately voted not to object to the administrators’ recommendation to accept the Weston Offer.
BMR and Weston then entered into heads of agreement on 24 November 2019, with a formal share sale agreement executed on 2 December 2019. The transaction completed on 4 December 2019.
The plaintiffs applied in around February 2021 for the appointment of either a SPL or a RL to investigate the sale of BMR’s assets by the administrators who had since been appointed as liquidators of BMR. The key concerns raised by the plaintiffs were:
The liquidators did not oppose the application but put on evidence to show that:
In considering the matters, Griffiths J separated out the application for an appointment of a SPL from the application for an appointment of a RL.
As to the proposed appointment of a SPL, Griffith J held that:
Griffin J also noted that even if there was power, the discretion to appoint a SPL would not have been exercised as (amongst other things) there was no suggestion that the administrators had acted other than in good faith and with the benefit of appropriate advice, it was unclear whether it would be just and beneficial to the creditors as a whole to appoint an SPL, and it was unclear why there had been such a long delay in the application being brought.
As to the proposed appointment of a RL, Griffith J held that:
The application was therefore dismissed.
This case provides important guidance on the limits on the appointment of SPLs and RLs to investigate the conduct of liquidators, whether as liquidators or in their former roles as voluntary or deed administrators.
The supervision of external administrators is a complex area. If you have any questions about these types of matters, the experienced Lavan team is ready to help.
[1] Lewis v Battery Mineral Resources Ltd (in liq) [2021] FCA 963.