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Routine Enforcement Amended Final

Corporations Act Case: Winding Up, Disclaimer, Revesting Property

Australia Federal Court Latest Judgments

Filed March 26th, 2026

Detected March 26th, 2026

Summary

The Federal Court of Australia has issued a judgment regarding the winding up and disclaimer of property under the Corporations Act 2001. The court ordered the revesting of specific tenements back to Kalium Lakes Potash Pty Ltd (in liq) to facilitate their sale, as no other party opposed the application.

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What changed

This judgment concerns an application under s 568F of the Corporations Act 2001 (Cth) for the revesting of disclaimed property. The court ordered the revesting of several tenements (M69/146, M69/148, L52/193, etc.) back to Kalium Lakes Potash Pty Ltd (in liq) immediately prior to the company applying to the Minister for consent to transfer these tenements to a purchaser. This action was taken to facilitate the sale of the tenements, and the court exercised its discretion in favour of the revesting as no other party with an interest opposed the application.

Regulated entities involved in corporate insolvency proceedings should note the court's approach to discretionary revesting of disclaimed property. While this specific case involved no opposition, it highlights the process for facilitating the sale of assets that have been disclaimed by liquidators. The judgment also specifies that certain tenements remain subject to existing registered interests, such as mortgages and caveats, which must be considered in any subsequent transfer. Each party was ordered to bear their own costs.

What to do next

Review court orders regarding revesting of disclaimed property in insolvency proceedings.
Ensure all registered interests (mortgages, caveats) are accounted for prior to tenement transfer.

Source document (simplified)

Original Word Document (101.2 KB) Federal Court of Australia

Kalium Lakes Potash Pty Ltd (in liq) v Minister for Mines and Petroleum [2026] FCA 355

| File numbers: | WAD 123 of 2025

WAD 433 of 2025 |
| | |
| Judgment of: | BANKS-SMITH J |
| | |
| Date of judgment: | 24 March 2026 |
| | |
| Date of publication of reasons: | 26 March 2026 |
| | |
| Catchwords: | CORPORATIONS – winding up – disclaimer – application for revesting of disclaimed property under s 568F of the Corporations Act 2001 (Cth) – proposed revesting of tenements in the companies which previously had rights to them in order to facilitate sale – w here no other party with an interest opposes the application – whether the Court should exercise its discretion in favour of the revesting – orders made |
| | |
| Legislation: | Corporations Act 2001 (Cth) ss 568D, 568E, 568F |
| | |
| Cases cited: | Deputy Commissioner of Taxation v Starpicket Pty Ltd (No 2) [2013] FCA 699

ENZED Nominees Pty Ltd v State of Western Australia [2024] FCA 620

In the matter of Energy Brix Australia Corporation Pty Ltd (in liq) [2022] VSC 700

In the matter of Vision Forklifts Pty Ltd (in liq) [2020] NSWSC 243

Lucan (Trustee) v State of New South Wales, in the matter of the Bankrupt Estate of Williams [2022] FCA 751

Moya Pty Ltd v State of New South Wales, in the matter of Vapula Pty Limited (in liq) [2022] FCA 1217

First Applicant

MARTIN BRUCE JONES AND MATTHEW DAVID WOODS IN THEIR CAPACITIES AS JOINT AND SEVERAL LIQUIDATORS OF KALIUM LAKES POTASH PTY LTD (IN LIQUIDATION) (ACN 601 436 060)

Second Applicant | |
| AND: | MINISTER FOR MINES AND PETROLEUM

Respondent | |
| | KALIUM CORPORATE PTY LTD (ACN 603 911 271)

Interested Party | |

The tenements with the following identifiers vest in the first applicant immediately prior to the first applicant making an application to the Minister for the Minister's prior written consent to transfer the tenements to the purchaser of the tenements:

(a) M69/146;

(b) M69/148;

(d) L69/52;

(e) L69/53;

(f) L69/54;

(g) L69/55;

(h) L69/31;

(i) L69/32;

(j) L69/34;

(k) L69/46;

(l) L69/47;

(m) L69/48;

(n) L69/59;

(o) L69/60;

(p) L69/61;

(q) L69/35; and

(r) L69/36.

Immediately prior to vesting pursuant to order 1 of these orders, the following tenements are to remain subject to the relevant registered interests over the tenements as described in Annexure A.
Each party bear their own costs of this application.
There be liberty to apply.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Annexure A

Caveat 657402 – Greenstone

Caveat 683019 – Kalium Corporate

Caveat 683638 – Marputu |
| L52/193 | Mortgage 567109- Westpac Administration Pty Ltd (Westpac)

Caveat 657377 – Greenstone Resources II (Australia)Holdings L.P. (Greenstone)

Caveat 683020 – Kalium Corporate Pty Ltd (ACN 601 436 060) (Kalium Corporate)

Caveat 686369 – Marputu Aboriginal Corporation RNTBC (Marputu) |
| L69/52 | Mortgage 650297- Westpac

Caveat 657386 – Greenstone

Caveat 683051 – Kalium Corporate |
| L69/53 | Mortgage 650297- Westpac

Caveat 657387 – Greenstone

Caveat 683055 – Kalium Corporate |
| L69/54 | Mortgage 650297- Westpac

Caveat 657388 – Greenstone

Caveat 683056 – Kalium Corporate

Caveat 684366 – Mungarlu |
| L69/55 | Mortgage 650297- Westpac

Caveat 657389 – Greenstone

Caveat 683057 – Kalium Corporate

Caveat 684368 – Mungarlu |
| L69/31 | Mortgage 567109 - Westpac

Caveat 657378 – Greenstone

Caveat 683023 – Kalium Corporate

Caveat 683646 – Marputu |
| L69/32 | Mortgage 567109 - Westpac

Caveat 657379 – Greenstone

Caveat 683024 – Kalium Corporate

Caveat 683645 – Marputu |
| L69/34 | Mortgage 567109 - Westpac

Caveat 657380 – Greenstone

Caveat 683025 – Kalium Corporate

Caveat 683644 – Marputu |
| L69/46 | Mortgage 567109 - Westpac

Caveat 657380 – Greenstone

Caveat 683025 – Kalium Corporate

Caveat 683644 – Marputu |
| L69/47 | Mortgage 650297 - Westpac

Caveat 657384 – Greenstone

Caveat 683049 – Kalium Corporate

Caveat 683641 – Marputu |
| L69/48 | Mortgage 650297 - Westpac

Caveat 657385 – Greenstone

Caveat 683050 – Kalium Corporate

Caveat 683640 – Marputu |
| L69/59 | Mortgage 656153 - Westpac

Caveat 657390 – Greenstone

Caveat 683059 – Kalium Corporate |
| L69/60 | Mortgage 656153 - Westpac

Caveat 657392 – Greenstone

Caveat 683060 – Kalium Corporate |
| L69/61 | Mortgage 656153 - Westpac

Caveat 657392 – Greenstone

First Applicant

MARTIN BRUCE JONES AND MATTHEW DAVID WOODS IN THEIR CAPACITIES AS JOINT AND SEVERAL LIQUIDATORS OF KALIUM LAKES INFRASTRUCTURE PTY LTD (IN LIQUIDATION) (ACN 631 042 450)

Second Applicant | |
| AND: | MINISTER FOR MINES AND PETROLEUM

Respondent | |
| | KALIUM CORPORATE PTY LTD (ACN 603 911 271)

Interested Party | |

The tenements with the following identifiers vest in the first applicant immediately prior to the first applicant making an application to the Minister for the Minister's prior written consent to transfer the tenements to the purchaser of the tenements:

(a) L52/162;

(b) L52/186;

(d) L69/28;

(e) L69/29;

(f) L69/30;

(g) L69/38;

(h) L69/40; and

(i) L69/41.

Upon vesting pursuant to order 1 of these orders, each tenement is to remain subject to the relevant registered interests over the tenement as described in Annexure A.
Each party bear their own costs of this application.
There be liberty to apply.

[Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.]

Annexure A

Caveat 657393 – Greenstone Resources II (Australia)Holdings L.P. (Greenstone)

Caveat 683064 – Kalium Corporate Pty Ltd (ACN 601 436 060) (Kalium Corporate)

Caveat 683656 – Marputu Aboriginal Corporation RNTBC (Marputu) |
| L52/186 | Mortgage 567110- Westpac

Caveat 657394 – Greenstone

Caveat 683065 – Kalium Corporate

Caveat 683648 – Marputu |
| L52/187 | Mortgage 567110- Westpac

Caveat 657395 – Greenstone

Caveat 683066 – Kalium Corporate

Caveat 683649 – Marputu |
| L69/28 | Mortgage 567110- Westpac

Caveat 657396 – Greenstone

Caveat 683070 – Kalium Corporate

Caveat 683651 – Marputu |
| L69/29 | Mortgage 567110- Westpac

Caveat 657397 – Greenstone

Caveat 683071 – Kalium Corporate

Caveat 683650 – Marputu |
| L69/30 | Mortgage 567110- Westpac

Caveat 657398 – Greenstone

Caveat 683072 – Kalium Corporate

Caveat 683653 – Marputu |
| L69/38 | Mortgage 567110- Westpac

Caveat 657399 – Greenstone

Caveat 683075 – Kalium Corporate

Caveat 683653 – Marputu |
| L69/40 | Mortgage 567110- Westpac

Caveat 657400 – Greenstone

Caveat 683076 – Kalium Corporate

Caveat 683655 – Marputu |
| L69/41 | Mortgage 567110- Westpac

Caveat 657401 – Greenstone

Caveat 683077 – Kalium Corporate

Caveat 683654 – Marputu |
REASONS FOR JUDGMENT

BANKS-SMITH J:

1 These reasons address two applications that were heard together and relied largely on common evidence. Orders were made on 24 March 2026 immediately following the hearing, and the reasons for doing so are set out below.

Factual context

2 The two respective plaintiff companies, Kalium Lakes Potash Pty Ltd (KLP) and Kalium Lakes Infrastructure Pty Ltd (KLI), undertook a potash mining operation known as the Beyondie SOP Project.

3 On 3 August 2023 administrators (relevantly Martin Jones and Matthew Woods) were appointed to KLP and KLI. Immediately following their appointment, receivers were appointed to the companies' assets and operations.

4 On 18 March 2024 KLP and KLI were placed into liquidation and Mr Jones and Mr Woods were relevantly appointed as joint and several liquidators.

5 In early October 2024 the receivers retired, leaving certain assets under the control of the liquidators. Those assets included a large number of tenements granted to KLP and KLI respectively, as listed in the orders.

6 The liquidators determined that the tenements were onerous property and decided to disclaim them under s 568 of the Corporations Act 2011 (Cth).

7 On 29 October 2024, the l iquidators gave notice in writing to the Department of Mines, Energy, Industry Regulation and Safety of the disclaimer of the tenements.

8 The notices stated, in effect, that the disclaimers were being made on various grounds, including that the tenements were unsaleable or not readily saleable, that they may give rise to a liability to pay money or some other onerous obligation, or that it was reasonable to expect that the costs in realising them would exceed any proceeds.

9 On 4 November 2024 the l iquidators lodged with the Australian Securities and Investments Commission Form 525s disclaiming the respective tenements.

10 No applications to set aside the disclaimers were made, a n d there is no issue as to the appropriateness of the decision of the liquidators to disclaim the tenements at the time the disclaimers were effected.

11 However, a short time afterwards, on 13 November 2024, a prospective purchaser initiated contact with the liquidators about acquiring some of the tenements.

12 Negotiations between the purchaser and the liquidators ensued and ultimately on around 15 March 2025 they entered into a conditional sale and purchase agreement for the acquisition of certain tenements by the purchaser (Sale Agreement).

13 In order to facilitate the sale, in April 2025 the liquidators commenced proceedings WAD 123 of 2025, seeking orders revesting certain tenements in KLP.

14 After a period of negotiations involving the proposed acquisition of all KLP and KLI tenements, an amended Sale Agreements was entered into.

15 Accordingly, on 28 November 2025 the liquidators sought and obtained orders to amend the originating application in WAD 123 of 2025 to include further tenements, and also instituted WAD 433 of 2025 seeking revesting of the KLI tenements.

16 A number of parties held encumbrances over the tenements, including relevantly West p ac Administration Pty Ltd (mortgage); Greenstone Resources II (Australia) Holdings L.P. (caveat); Kalium Corporate Pty Ltd (caveat); and Marputu Aboriginal Corporation RNTBC (caveat).

17 There were a number of affidavits of service filed that deposed to due service of the various court documents related to the application on these parties, and I am satisfied that they each had the opportunity to be heard.

18 In the end, only the respondent (the Minister for Mines and Petroleum) and Kalium Corporate sought to be heard, and neither opposed the orders sought.

19 Meanwhile, the tenements are subject to forfeiture proceedings in the Warden's Court. Understandably, the plaintiffs were keen to secure orders revesting the tenements, assuming the Court was minded to make such orders, in order to facilitate completion under the Sale Agreement before any forfeiture hearing proceeded. Having regard to obligations on the part of the purchaser under the Sale Agreement to make certain payments, completion would minimise the risk of any forfeiture.

Evidence

20 A number of substantive affidavits were filed in support of the application. In particular, Mr Jones in his capacity as liquidator deposed to the circumstances of the disclaimer and the negotiations and execution of the Sale Agreement (and amended Sale Agreement). Some of the details of the Sale Agreement and a royalty agreement are suppressed on the basis of confidentiality because, in the event that the Sale Agreement is not performed, the interests of creditors may be prejudiced if the terms of the proposed sale are otherwise disclosed to the market. However, it is not necessary to descend into any particular level of detail about the terms of the confidential agreements in these reasons in order to address the issues.

21 I note that affidavit evidence was also filed on behalf of Kalium Corporate and the purchaser.

Principles relevant to revesting

22 The principles relating to disclaimer of onerous property are well recognised and were not in issue.

23 Upon the disclaimer taking effect, it is taken to have terminated the company's rights, interests, liabilities and property in or in respect of the disclaimer property, but does not affect any other person's rights or liabilities except so far as necessary in order to release the company and its property from liability: s 568D(1) of the Corporations Act.

24 Of more relevance in this case are the circumstance s in which a revesting might occur after a disclaimer. Relevantly, s 568F of the Corporations Act provides as follows:

(1) The Court may order that disclaimed property vest in, or be delivered to:

(a) a person entitled to the property; or

(b) a person in or to whom it seems to the Court appropriate that the property be vested or delivered; or

(2) The Court may make an order under subsection (1):

(a) on the application of a person who claims an interest in the property, or is under a liability in respect of the property that this Act has not discharged; and

(b) after hearing such persons as it thinks appropriate.

25 As summarised by Cheeseman J in Moya Pty Ltd v State of New South Wales, in the matter of Vapula Pty Limited (in liq) [2022] FCA 1217 at [11], there are three conditions which must be satisfied prior to the making of a vesting order under s 568F:

(a) there must be property that has been disclaimed (s 568 and s 568D);

(b) there must be an application by a person who claims an interest in the disclaimed property or is under a liability in respect of the property that the Corporations Act has not discharged (s 568F(2)(a)); and

(c) the Court must be satisfied it has heard from such persons as it thinks appropriate on the application (s 568F(2)(b)).

26 The first element is unquestionably satisfied in this case.

27 As to the second element, the statutory text is important. The class of persons in whose favour an order may be made is not limited to persons entitled to the property, and so the class of applicants who satisfy the criterion of a person who claims to have an interest in disclaimed property should not be narrowly construed: Lucan (Trustee) v State of New South Wales, in the matter of the Bankrupt Estate of Williams [2022] FCA 751 at [28], 29. It is not necessary that a claim be vindicated in order to have standing to bring an application: Lucan at [25], [27]; Walsh v State of Queensland [2019] FCA 871 at 32. Having said that, any claim would need to be bona fide with a reasonable legal and factual foundation: E NZED Nominees Pty Ltd v State of Western Australia [2024] FCA 620 at 6.

28 The third element requires consideration of the matters relevant to the exercise of the Court's discretion. The applicants referred in particular to factors identified by Goodman J in Lucan and by Hetyey AsJ in In the matter of Energy Brix Australia Corporation Pty Ltd (in liq) [2022] VSC 700 [41], including by reference to analogous powers under s 133(9) of the Bankruptcy Act 1966 (Cth). Those factors include the following:

(a) whether the property was previously vested in the applicant (Lucan at [42]);

(b) whether the applicant properly disclaimed the property and did so in accordance with any relevant duties (Lucan at [43]);

(d) whether any change in circumstances may now result in a return to creditors (Lucan at [44];

(e) whether the taking of steps to recover the property is consistent with the applicant's duties (Lucan at [45]);

(f) the effect of not making the vesting order, including the impact on creditors and whether some other party, such as the Crown, would receive a windfall (Lucan at [46]);

(g) the position of any other interested parties (Lucan at [47]); and

(h) what the applicant proposes to do with the property if a vesting order is made (Ener g y Brix at [41]).

29 It is also important in this case to take into account the unusual circumstances. The liquidators seek to revest the same property in the companies that they have previously disclaimed. However, the text of the provision does not exclude an order that brings about this result.

30 Counsel for the applicants referred to a number of examples. Relevantly, in In the matter of Vision Forklifts Pty Ltd (in liq) [2020] NSWSC 243, Gleeson J made an order vesting in a liquidator the surplus funds from the sale of an asset previously disclaimed by that liquidator:

[8] Section 568F(1) of the Corporations Act provides that the Court may order that disclaimed property vest in, or be delivered to (a) a person entitled to the property, or (b) a person in or to whom it seems to the Court appropriate that the property be vested or delivered, or (c) a person as trustee for a person of a kind referred to in pars (a) or (b).

[9] The Court may make an order under s 568F(1) on the application, among others, of a person who claims an interest in the property: s 568F(2). The liquidator, on behalf of the company, answers that description.

[10] There being a surplus arising upon the exercise of the security holder's power of sale in respect of the forklift, the person in whom it is appropriate that the surplus from the disclaimed property be vested, is the liquidator of the company which was the owner of the property up until the time the disclaimer took effect.

31 In Lucan, Goodman J made an order vesting in a trustee in bankruptcy an interest in real property (half share as a tenant in common) that the previous trustee had disclaimed, and which had accordingly vested in the State of New South Wales. There had been a change in circumstances in that the status of a mortgagee bank changed from a secured to an unsecured creditor, which mean t it seemed likely that a sale of the property would enable payment of a dividend to the creditors of the bankrupt estate.

32 The test applied by Goodman J in Lucan in the exercis e discretion under the Bankruptcy Act was whether it was 'just and equitable' to make a vesting order, whereas the test under s 568F of the Corporations Act is whether an order is ' appropriate '. In my view nothing turns on this different wording.

Application in this case

33 The focus in this case is on the second and third elements identified at [25] above.

Do the applicants have an interest in the disclaimed property, or are they under a liability?

34 The applicants (bearing in mind they are both the respective companies and their liquidators) described their interest for the purpose of s 568F(2)(a) on several bases.

35 It was said (by analogy with Vision Forklifts and Lucan) that the companies have an interest in any sale proceeds if the Sale Agreement completes. It was also submitted that the companies have a liability, in that they are parties to the forfeiture proceedings, and according to the Department (as identified in the Warden's Court proceedings) they remain liable to pay arrears relating to the tenements. I accept that KLP and KLI have a bona fide claim to an interest in the disclaimed property and have a sufficient liability for the purpose of bringing an application under s 568F(2).

36 Whilst it is therefore not necessary to decide, I favour the view that the liquidators in the circumstances of this case separately have a bona fide claim that affords them standing to bring an application under s 568F(2)(a). If the revesting proceeds and so the Sale Agreement completes, any sale proceeds paid to KLP and KLI under the Sale Agreement would be paid to and under the liquidators' control. To the extent that there are outstanding fees due to the liquidators, they would ordinarily have an equitable lien over assets under their administration (and regardless of possession, and so regardless of the disclaimer), as established in Shirlaw v Taylor (1991) 31 FCR 222 (and see the cases collected in Deputy Commissioner of Taxation v Starpicket Pty Ltd (No 2) [2013] FCA 699 at 17).

Appropriate to vest the tenements

37 I have concluded that KLP and KLI are persons in or to whom it is appropriate that the property be vested under s 568F(1)(b).

38 The applicants submitted that the following matters support the exercise of the Court's discretion in favour of making the orders sought:

(a) prior to the disclaimers, KLP and KLI were the holders of the tenements, and they continue to show in official records as the registered holders of the tenements;

(b) the vesting orders, if made, will revest the property in the companies;

(d) there has been a change in circumstances in that it was only after the liquidators sought to disclaim the tenements that the purchaser expressed a willingness to acquire them;

(e) it may be inferred that the liquidators would not have disclaimed the tenements had the purchaser expressed an interest prior to the liquidators seeking to disclaim them;

(f) the applications to vest the tenements in KLP and KLI are made in accordance with the liquidators' duties and functions, including to maximise the realisation of disposable assets of the companies;

(g) the liquidators have already gone to considerable lengths to negotiate the sale of the tenements to the purchaser;

(h) the purchaser has remained an activate participant in the proposed sale, including undertaking due diligence and taking various steps to advance the transaction;

(i) the purchaser has paid a significant sum of money into escrow, which reflects its willingness to complete the transaction;

(j) the Sale Agreement has been executed by the purchaser, KLP and KLI, as has the deed of amendment and restatement of the Sale Agreement;

(k) if the vesting order is made and the sale transaction is completed, the purchaser has agreed to bear all costs, fees, penalties arrears and expenses with respect to the tenements;

(l) the sale of the tenements to the purchaser will help ensure a continuation of mining activity and related investment;

(m) if the vesting orders are not made:

(i) the purchaser will be adversely impacted in that the proposed sale will fail, meaning it will not acquire the tenements and the time and expense it has invested in advancing the transaction will have been wasted;

(ii) the companies and liquidators will be adversely impacted in that they will lose the benefit of any proposed sale proceeds;

(iii) the tenements will likely be forfeited by the Warden's Court, meaning the caveats and other interests will presumably cease; and

(iv) the State would receive a significant windfall that exceeds any interest it may have as a creditor; and

(n) no party has opposed the orders sought; and the proceeds of any sale will be returned to the companies and will be dealt with in the course of the liquidation.

39 I add that the submissions are supported by the evidence to which I have referred at [20]-[21] above.

40 I accept that the matters raised by the applicants all support the exercise of the Court's discretion in favour of the revesting of the tenements in the companies, although I place more emphasis on the potential prejudice to creditors of the companies and to those with pre-disclaimer interests in the tenements than on the potential prejudice to the purchaser by way of the risk of costs thrown away. In my view, it is readily apparent that the liquidators would not have disclaimed the tenements had they known of the prospect of the purchaser coming forward, and this is a clear case where revesting in order to facilitate the proposed sale is appropriate.

Relevant parties have had the opportunity to be heard

41 The Minister as respondent was represented on the application, including on several case management hearings that preceded the final hearing. In the end the Minister made no separate submissions and did not oppose the relief sought by the applicants.

42 I am satisfied that each of Westpac, Greenstone and Marputu were served with the relevant applications and had the opportunity to appear and make submissions, but they did not seek to do so.

43 In addition to adducing evidence, Kalium Corporate filed written submissions and was represented at the hearing. Its concern, understandably, was to protect its interests that were formerly protected by caveat, in the event that the disclaimed tenements revested. It was not in issue that it was appropriate that upon any revesting pursuant to orders of the court, each tenement was to remain subject to the relevant interests over the tenement that were registered at the time of the disclaimer and remained registered in official records, despite the disclaimer. There was affidavit evidence before the Court to the effect that the purchaser under the Sale Agreement also acknowledged that the vesting would be subject to those registered interests. In the circumstances I considered it appropriate to make orders as agreed by the respective parties. A similar order preserving the position of a pre-existing encumbrance was made in Energy Brix (see [44]).

Orders

44 Orders were made accordingly.

| I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith. |
Associate:

Dated: 26 March 2026

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