Australia, July 9 -- New South Wales Land and Environment Court issued text of the following judgement:
1 By Originating Process filed on 23 May 2025, the Plaintiff, Wiggins Island Coal Export Terminal Pty Ltd ("WICET") applies for orders under ss 411 and 1319 of the Corporations Act 2001 (Cth) ("Act") relating to a proposed creditors' scheme of arrangement and associated orders.
2. By way of background, WICET is a private company and is the operating entity within a group of companies that own and operate the Wiggins Island Coal Export Terminal ("Terminal") located in the Port of Gladstone, Queensland. The terminal is a coal export port and provides rail offloading and offshore wharf loading facilities for coal. It is industry funded in the sense that it is owned by its users. The Terminal is operated in accordance with the Terminal Access Policy which establishes a methodology for calculating the amount payable by a Take or Pay Shipper ("ToP Shipper") for the provision of services and specifies that the Terminal is to be operated on a cost recovery model. Initially, the Terminal's maximum capacity identified was fully used by ToP Shippers, but four ToP Shippers have since entered external administration and another ToP Shipper's agreement was terminated by mutual agreement. The effect of this has been to increase the component of the terminal access charge that relates to operating costs and financing costs to the remaining ToP Shippers.
3. The proposed scheme ("Proposed Scheme") is a creditors' scheme that would involve the restructuring of the debt owed by WICET to 21 Senior Financiers under a Senior Syndicated Facilities Agreement dated 9 September 2011 ("SSFA"). This Proposed Scheme has similarities to the first of two schemes approved by the Court in 2018 and 2019 in relation to WICET. Under the first of those schemes, changes to the SSFA were effected by an Amendment and Restatement Deed: Re Wiggins Island Coal Expert Terminal Pty Ltd [2018] NSWSC 1342 ("WICET 1"). Under the second scheme, the maturity date under agreements related to junior financiers was extended, and a payment of interest to those persons was replaced with a payment in kind: Re Wiggins Island Coal Expert Terminal Pty Ltd [2018] NSWSC 1434. The principal effect of this Proposed Scheme is to amend the terms of the SSFA so as to extend the Balloon Maturity Date under that agreement from 30 September 2026 to 31 December 2028. This is intended to allow WICET to avoid an Event of Default occurring under that agreement. I will address the evidence as to WICET's financing arrangements and the Proposed Scheme below.
4. I made the orders sought by WICET at the conclusion of the hearing on 28 May 2025. These are my reasons for doing so. I have drawn on the helpful submissions of Mr Ahmed, who appeared for WICET, in this judgment.
*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19757a852192588e16f15970)
Disclaimer: Curated by HT Syndication.
