Receivers’ paws denied a dip in Kirkalocka’s pot

Seeking remuneration from funds to which they have no entitlement shows the commitment some receivers have to the concept of doing right by one’s appointor.

“Get your fees from anywhere but us if you want future work” lenders might murmur to those upon whom they bequeath lucrative recovery appointments, and it’s not like Chris Hill, Vaughan Strawbridge and Hayden White don’t have experience acting for hard charging security holders, such as their appointor in this instance, Global Loan Agency Services Australia Nominees Pty Limited (GLAS).

But as is shown in Kirkalocka Gold SPV Pty Ltd v SCL AUS Limited (No 2) [2026] FCA 79, the trio’s bid to plunder funds that would otherwise be available to creditors participating in the Kirkalocka Gold SPV Pty Ltd (KGSVP) Deed of Company Arrangement (DoCA) foundered last week against the inhospitable cliff that is Federal Court judge Darren Jackson.

In giving his reasons as to why he wouldn’t grant the FTI Holdings threesome an indemnity for their remuneration from Kirkalocka’s assets his honour observed that Kirkalocka and the receivers put into evidence a deed of indemnity they entered into with GLAS.

” …. presumably the Receivers seek an order for their remuneration to be paid out of the assets of Kirkalocka because they do not want to have to call on that indemnity,” the judge said, adding that “The deed of indemnity does indeed require them to exhaust other sources of payment first”.

But if Hill, Strawbridge and White were relying on a term in the security under which they were appointed to justify their asserted entitlement to Kirkalocka’s assets, it was clearly not thought sufficiently convincing as to make it into evidence, as his honour noted.

“I sought an explanation from the plaintiffs of the Receivers’ entitlement to be indemnified out of the assets of Kirkalocka. The written submissions filed by the plaintiffs do not provide that explanation.”

Warming to his task, the judge continued.

“It does not follow from the mere fact that someone has acted properly that they have a right to remuneration out of a particular fund,” he said.

“Ordinarily, there needs to be a connection with the fund that is recognised by the law as giving rise to a right of indemnity in those circumstances,” he said.

Justice Jackson made the remarks in respect of his February 11 decision on an application brought by KGSVP and the receivers following his primary judgment delivered last year in Kirkalocka Gold SPV Pty Ltd (Subject to Deed of Company Arrangement) (Receivers and Managers Appointed) v SCL AUS Limited [2025] FCA 1490.

That decision paved the way for the effectuation of the Kirkalocka DoCA, but the dominant role Hill, Strawbridge and White took in respect of the DoCA process appeared to puzzle the judge.

“I queried why the Receivers took the running of this proceeding, which appeared to be a step in the implementation of the DOCA,” he said.

“Ordinarily, privately appointed receivers are enforcing the security under which they are appointed, and the implementation of a deed of company arrangement is for the deed administrators appointed under it”

Now retired deed administrators Sam Freeman and Adam Nitikins of EY did not respond to iNO’s email seeking an answer to the same question.

Nor did Hill, Strawbridge and White clarify whether they will take advantage of the liberty the judge granted them to make further submissions on the remuneration question. To be fair, they’re probably too busy calculating how much fee load they can stack on the GLAS indemnity before it breaks.