International
conglomerate Cargill's attempts to leverage a better payout in the managed
sell down of Solid Energy’s assets failed when the High Court dismissed its challenge
to the creditors’ agreed scheme of arrangement.
Cargill was part of an unsuccessful joint
venture in Solid Energy’s West Coast Spring Creek mine. Solid Energy went belly up in 2015, crushed
by falling coal prices and adverse movements in the USD/NZD cross rate. Facing returns of fifteen to twenty cents in
the dollar on total debt of some $600 million if Solid Energy was put into liquidation,
creditors voted for a scheme of arrangement that allowed the company to keep
trading while assets are sold down progressively. Trading creditors were promised 100 cents in
the dollar. Those classed as
“participating” creditors anticipate receiving 35 to 40 cents in the dollar.
Cargill objects to being classed along
with the major banks as a participating creditor.
Justice Katz ruled Cargill’s debt is not
a trading debt. Trading creditors were
paid in full to maintain ongoing supply of materials and labour, ensuring continuing
operation of Solid Energy’s plant and mines during the sell down.
Cargill also challenged the scheme of
arrangement as being run by the banks for the benefit of the banks. Justice Katz said the scheme was approved by
a substantial majority of creditors: 94 per cent by value and 99 per cent by
number. There was no objection at the
time of bank representatives making up a Participants Committee to manage the
sell down process. Their expertise and
experience was seen as assisting in a managed sell down. Any benefits the banks obtained in managing
the sell down did not unfairly prejudice Cargill, Her Honour ruled. To prove prejudice, Cargill would have to
establish it is worse off under the scheme of arrangement than if Solid Energy
had instead gone into liquidation.
Cargill
v. Solid Energy – High Court (5.08.16)
16.119