WA Supreme Court rejects challenge to mining asset sale amid complex receivership and liquidation

The Supreme Court of Western Australia has dismissed a purchaser’s attempt to revive a terminated $12 million mining asset sale and pursue claims against receivers and liquidators, in a decision grounded in a multi-entity insolvency involving overlapping receiverships, liquidations and a DOCA structure across several related mining companies.

The proceedings arose out of the collapse of a transaction for the Cloncurry Gold Project, which formed part of a broader restructuring of the Ausmex and Tombola group. The asset package spanned multiple entities, including Tombola Gold Ltd (subject to a DOCA), Ausmex Mining Pty Ltd and Ausmex Resources Pty Ltd (both in liquidation), alongside other affiliated entities also in liquidation.

Receivers were first appointed over key assets of Tombola Gold, Ausmex Mining and Ausmex Resources in May 2023, with replacement receivers appointed in December 2025. Paul Pracilio and Richard Tucker of KordaMentha are the current receivers. Separate liquidators were also appointed across the group entities between August 2024 and June 2025. Simon Cathro and Andrew Blundell of Cathro & Partners are the liquidators.

In October 2024, Orion Resources Pty Ltd entered into an asset sale agreement in October 2024 with multiple sellers, including Tombola Gold, Ausmex Mining and Ausmex Resources, acting through their receivers and liquidators, for the acquisition of mining tenements, equipment and related assets for $12 million.

The transaction was subject to standard conditions precedent, including the discharge of secured creditor interests over certain assets and staged completion obligations. The agreement was extended multiple times as the administrators worked through encumbrances and funding issues.

By November 2025, the parties entered into an extension, release and termination agreement that restructured the completion mechanics and introduced an automatic termination regime tied to strict payment deadlines, alongside broad releases in favour of the external administrators and the selling entities.

When Orion failed to make a required $5.65 million payment by the final deadline, the agreement terminated automatically, and the receivers proceeded with the realisation process. The purchaser then sought to challenge the termination and pursue claims, including specific performance and negligence, against the various officeholders.

Orion took the position that that the receivers and liquidators had acted negligently in failing to procure releases of secured encumbrances, causing Orion’s financing to collapse, and that the receivers and liquidators could not rely on that failure to terminate the asset sale agreement. Orion also sought to overcome the later amended agreement, including its automatic termination provisions, arguing that the earlier alleged breaches continued to taint the transaction. Orion sought specific performance to compel completion of the transaction.

Justice Hill refused leave to commence or continue proceedings against the companies in liquidation, emphasizing that Orion had failed to establish a prima facie case in circumstances where leave under the Corporations Act 2001 (Cth) was required to sue entities in external administration.

On the merits, the Court found that termination flowed directly from Orion’s non-payment under the amended agreement, not from any alleged failure by the receivers or liquidators to discharge encumbrances. Orion’s decision to enter into the amended agreement with knowledge of its funding issues proved fatal to its claims.

The Court also rejected the negligence claim, expressing doubt as to whether a duty of care could arise in this context and finding, in any event, that causation and loss were not made out. The claim was further barred by contractual limitations and releases negotiated as part of the insolvency sale process.

Having found no serious question to be tried, the Court granted summary judgment in favour of the receivers and liquidators.

Read the decision here.

Professionals involved:

• Paul Walker of Shoreline Chambers, counsel, and Mills Oakley Lawyers, solicitors, for the First Defendant, Robert Brauer and William Harris, the former receivers

• David Chesterman KC of Level Twenty Seven Chambers & Tom Webb of Quayside Chambers, counsel, and Lander & Rogers, solicitors, for the Second Defendant and the Third Defendant, liquidators Simon Cathro and Andrew Blundell of Cathro & Partners

• Wayne Zappia SC of Shoreline Chambers & Andrew Mason of Francis Burt Chambers, counsel, and Hamilton Locke, solicitors, for the Fourth Defendant, receivers Paul Pracilio and Richard Tucker of KordaMentha

• Owen Wolahan of Dever’s List, counsel, and Garland Hawthorne Brahe Lawyers, solicitors, for the Plaintiff, Orion Resources Pty Ltd