Nathan Tinkler has failed in an attempt to prevent a liquidators' examination of himself and three officers of his private company Mulsanne Resources, and will now appear in the NSW Supreme Court on Thursday or be held in contempt and face possible arrest.
On Tuesday Justice Paul Brereton dismissed with costs Mr Tinkler's claim that the examination proceedings had turned into an "abuse of process".
Last Thursday, when a solicitor for Mulsanne liquidator Ferrier Hodgson, Clayton Utz partner Jennifer Ball, sent an email offering an adjournment of the first examination hearing, set down for 11am on Friday, if Mr Tinkler could provide evidence he could deliver $15 million in cash or guarantees to Mulsanne's major creditor, coal company Blackwood Corporation.
Blackwood initiated the wind-up over a $28.4 million debt Mulsanne incurred when it failed to complete a share placement agreed last year. The placement was of 94.7 million shares at 30¢ each and would have given Mulsanne a 30 per cent stake in Blackwood, which is 51 per cent owned by Singapore commodities trader Noble Group. Blackwood was the sole external creditor to Mulsanne - three other private Tinkler Group entities were owed an amount of $31,000 - and was funding the liquidator.
The court heard that a Singapore company linked to Tinkler Group, Cayenne Coal Pty Ltd, had offered to buy up to 100 per cent of the shares in Blackwood at 30¢ per share - valuing the company at more than $55.5 million - subject to debt financing, on condition that the dispute over the share placement agreement would be settled, and there would be no public examination of Mr Tinkler and fellow Mulsanne officers Troy Palmer, Matthew Keen and Aimee Hyde.
Over Thursday Blackwood wrote rejecting the offer but said it was minded to accept a proposal that included the $15 million payment as security. Mr Tinkler's lawyers replied that they were "happy to try and make this work", and Friday's 11am hearing was adjourned by consent. By 2pm the abuse of process claim was filed on the basis that Ms Ball was acting for Ferrier Hodgson, Blackwood and Noble and was using the threat of examination to advantage Blackwood.
Blackwood counsel Robert Newlinds told the court there was never a settlement offer from Tinkler Group that was capable of acceptance and the flurry of emails in the lead-up to Friday's examination showed, "Mr Tinkler wants to do a deal and doesn't have enough money to come up with any offer".
Mr Newlinds cross-examined Mr Tinkler's lawyer, DLA Piper partner Scott Harris, who admitted under oath that Mr Tinkler was in Singapore last Thursday and was not in Sydney on Friday, even though he had been ordered to appear.
Justice Brereton said: "The idea that the examination should not take place as part of a commercial settlement emanated not from the liquidator, not from Blackwood, but from the examinees ... in those circumstances it seems at least curious that it would be suggested that acceding to such a proposal ... would have the effect of converting the proceedings into an abuse of process".