Gupta’s latest VAs enter the fray

Seeing Scotty Atkins back on the tools was just one of the headline acts featuring at this week’s performance by the Sanjeev Gupta circus.

The tour, which began a year ago when the South Australian government appointed KordaMentha to take control of the ailing Whyalla Steelworks, opened on Monday in the NSW Supreme Court with the debt juggling steel baron seeking to have adjourned the hearing of an application to wind up his moribund coal operation at Tahmoor on the NSW South Coast.

Not often does Norton Rose Fullbright’s global head of restructuring appear under the big top, cracking the whip to keep the prides of snarling creditors away from his client’s carcass.

But on Monday there was Atkins, perched behind his laptop assisting another headline act, senior counsel Farid Assaf, as the latter sought to persuade judge Ashley Black that determination of the winding up application brought by Tahmoor Coal (Tahmoor) creditor Coal Mines Insurance Pty Ltd (CMI) should be deferred for at least two weeks.

Assaf argued an adjournment was necessary to allow Michael Brereton and his William Buck colleagues Sean Wengel and Rashnyl Prasad time to progress the sale of the 100 per cent shareholding in Tahmoor they control as deed administrators of parent company Liberty Primary Metals Australia (LPMA).

Gupta appointed the William Buck trio as VAs in November 2025 and creditors voted in favour of the DoCA on December 30.

Assaf told the court an adjournment would allow the DAs to return to court with more clarity, which would no doubt be relied upon to seek a further adjournment given the court also heard the earliest a sale could be concluded would be June, which is a long time for any judge to to allow a company to pretend it’s not insolvent.

Tahmoor’s solvency or lack thereof was a sensitive point for Assaf, who forcefully rejected any suggestion that a presumption of insolvency was made out just because only those creditors Tahmoor management deemed key creditors were getting paid.

His indignation, if that’s not too strong, was based on the fact that CMI had declined an offer to pay the debt it claimed in its creditor’s petition, a rejection Assaf argued was unreasonable.

Justice Black disagreed. His honour held the view that the proposal, which involved payment by a related party to ANZ, which would then pay the money into court, was an attempt to avoid the preference regime and he wasn’t surprised CMI’s directors, who’ve obtained a consent from McGrathNicol’s Sean Fraser to act as liquidator of Tahmoor, weren’t having a bar of it.

Eventually Assaf exhausted his ammunition and the adjournment bid was declined.

Justice Black directed the parties to return on Tuesday at noon, ostensibly to finally determine CMI’s winding up application, which can be traced back to its creditor’s statutory demand issued in June last year.

Yesterday Assaf was back with a different act, appearing for supporting creditor Clydesdale Engineering Limited, another related party that the court heard was willing to fund Wexted Advisors’ Joe Hayes and Chris Johnson, who were appointed as voluntary administrators (VAs) of Tahmoor late on Monday night.

Predictably Assaf’s indignation about presumptions of insolvency was nowhere to be seen, though to be fair, yesterday’s act was dominated by a fresh adjournment application brought by Hayes and Johnson with the help of David Sulan SC.

Taking briefly to the witness box Hayes told the court he had had discussions with Tahmoor’s senior secured lender Oaktree Capital and was confident the Hong Kong-based lender of last resort was prepared to hold off appointing receivers as long as the VA was funded.

How reliable that offer of funding is is something Hayes will likely test as soon as possible with $900,000 required for wages and other essentials required to be paid by the end of this week.

The court also heard Hayes had had 10 conversations with Tahmoor’s parent in 2025, something the judge said would need to be chronicled in great detail in the affidavit he ordered Hayes to put before the court ahead of the parties return next Wednesday, the day before the first meeting.

Like Brereton, Hayes received the referral from Olvera Advisers, which seems to be primary agent for acts prepared to perform at Gupta’s spiralling circus.

Hayes will also have to provide his opinion on the chances of insolvent trading and any other claims he thinks would be available in a liquidation scenario, as well as his efforts to secured alternative liquidation funding and how any sale of Tahmoor’s business and assets might mesh with Brereton’s planned sale of the Tahmoor shareholding via the LPMA DoCA.

Then there’s the likelihood of a challenge at the first meeting to Hayes and Johnson’s appointments, which iNO’s mail is saying will come from KordaMentha.

Lots to do. Little time. Risks elevated. No wonder the big acts are clamouring for a gig.

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