Re AUSCOAL Superannuation atf the Mine Superannuation Fund [2024] NSWSC 32

Appeared for the trustee of Mine Super, instructed by Mills Oakley.

Successful application pursuant to s 63 of the Trustee Act 1925 (NSW) for the Court’s opinion, advice or direction as to the administration and management of Mine Super and merger with TWUSuper.

Heard by Robb J (sitting as Equity Duty Judge) between 6 and 17 November 2023.

Judgment:

• Re AUSCOAL Superannuation Pty Ltd atf Mine Superannuation Fund; Application for Judicial Advice [2024] NSWSC 32.

Media coverage:

• Mine Super and TWUSuper announce ‘major’ merger milestone (Investor Daily, 28 September 2023)

• Super mergers are ahead but the era of megamergers is over (The Australian, 19 December 2023)

• The super mergers due to reach completion in 2024 (Money Management, 11 January 2024)

In re DSHE Holdings Limited [2021] NSWSC 608

Appeared for the deed administrators McGrath Nicol, instructed by Norton Rose Fulbright.

Successful application for termination of DOCA and administrator’s remuneration.

CORPORATIONS — deed of company arrangement — scope of power under s 90-15 of the Insolvency Practice Schedule — application for orders to facilitate the deregistration of the company without any intervening winding up — orders refused

CORPORATIONS — deed of company arrangement — orders terminating the deed of company arrangement — orders under s 447A of the Corporations Act 2001 (Cth) modifying the operation of the winding up regime created by s 446AA in relation to reporting to creditors

CORPORATIONS — deed of company arrangement — remuneration of deed administrator – where the remuneration claimed exceeds the total creditors’ claims

Judgment:

• In the matter of DSHE Holdings Limited [2021] NSWSC 608 (Williams J)

In re Ovato Print Group (application for scheme of arrangement)

Advising the Commonwealth, instructed by Norton Rose Fulbright.

By its implementation of the scheme established by the Fair Entitlements Guarantee Act 2012 (Cth), the Commonwealth Government provides financial assistance to eligible employees who lose their job due to the liquidation of their employer. The underlying public policy objective of the FEG Scheme is for it to constitute a safety net scheme of last resort for eligible, redundant workers.

These proceedings raised potentially significant public policy implications in the interplay between schemes of arrangement proposed pursuant to sections 411 and 413 of the Corporations Act 2001 (Cth) and the implementation of the FEG Scheme, particularly in the context of the fiscal support provided by the Commonwealth Government to corporate Australia during the COVID-19 pandemic. Whilst the Court recognised the novel nature of the interplay between the Ovato Schemes and the FEG Scheme, ultimately the Commonwealth did not oppose the application for approval of these schemes of arrangement, and the Court decided not to refuse to approve the Ovato Schemes on public policy grounds.

For further information, see NRF’s note and the judgments of Black J following the initial Convening Hearing and final Sanction Hearing.