2023-07-18 07:45:19
A week following the judicial liquidation of the mining company Sonarep, operator on the Poum massif, NC the 1st reveals the motivations of the Commercial Court of Nouméa. We learn that a complaint for fraud and abuse of corporate assets has been filed, which might lead to criminal proceedings.
Jean-Alexis Gallien-Lamarche (edited by Françoise Tromeur) • Published on July 18, 2023 at 6:45 p.m., updated on July 18, 2023 at 7:11 p.m.
A cascade of debts, and a financial haemorrhage that had to be stopped. On July 11, the mining company La Sonarep, which employed 88 employees on the Poum massif, was placed in compulsory liquidation, by decision of the Mixed Commercial Court of Nouméa, following a period of eleven months in receivership. A shock in the mining world, terrible news for the economic development of the Far North and growing concern for all those families who lived from nickel mining and who do not know what tomorrow will bring.
Beyond the legitimate emotion caused by this liquidation, the judgment of the commercial court reveals serious dysfunctions within the company, strangled by an abyssal financial situation which it seemed impossible to overcome. “At more than eleven months of observation period [de redressement judiciaire], SA Sonarep has not demonstrated that it is able to continue its activity without incurring new debts”specifies the court, even though it has already benefited, within the framework of its receivership, from the “freezing of the recovery of debts prior to the procedure”.
Initially declared at approximately 284 million francs, the liabilities “proved to be much higher with 1.843 billion francs in declared debts”, points the judgment. The document also reveals that the legal representative Mary-Laure Gastaud is at the origin, last May, of the request for “convert the receivership procedure into judicial liquidation” of the company.
She then argues that “governance conflicts at the origin of several changes of management during the observation period and litigation before local courts” might disrupt and destabilize society. She also claims that the difficulties are consecutive “a complaint once morest the former and current management for forgery and use of forgery, breach of trust, fraud in an organized gang and bankruptcy” following the discovery ofmany serious malfunctions”. An element which, if proven, might lead to criminal proceedings. Finally, the agent mentions an ongoing conflict with its main client, SLN, “especially since it has temporarily halted activity at the Poum mining center”.
No accounts have been established since the opening of the collective proceedings.
A month later, Sonarep, through the voice of its lawyers, asked the court to dismiss Mary-Laure Gastaud. In her defence, she stated that “the actions of the management likely to receive a criminal qualification are not justified”. More interestingly, she stated that the SLN had taken “the commitment to sign new contracts”assuming “where it would obtain the renewal of the North Province of its authorizations to exploit on the mining massif of Poum”.
The last round dates back to July 6. At the commercial court hearing, the legal representative maintained her application for judicial liquidation, recalling “that no accounts have been established since the opening of the collective procedure and that there has been no auditor since 2021″.
The legal administrator specified that Sonarep still had to pay six million francs to Cafat and that “the operating result shows a deficit of 118 million francs as of June 30, 2023″. The coup de grace was dealt by the public prosecutor who did not oppose the judicial liquidation, arguing that “management faults and complaints once morest the management may well be taken into account to consider that recovery is manifestly impossible”. The prosecution thus pointed “erroneous and grossly overestimated projections”and “lack of clarity” on the financial elements and the absence “real commitment” from SLN.
After a week of deliberation, the decision falls. The court thus recalls in its reasoning that the company with popular shareholders – it is 56% owned by more than 200 families in the Poum region – “has not been able to rectify its situation by continuing its activity. Its operating result, which was negative during the observation period, is increasingly in deficit and its turnover is falling while cash is struggling to recover.
SLN cannot make a commitment to Sonarep to reserve for it the exploitation of the deposits on Poum, as it is not itself authorized to exploit them.
To justify this liquidation, the court also pointed out that, “despite multiple reminders from the judicial administrator and the judicial representative”Sonarep was not able to justify “a certificate of civil liability insurance, which, if not compulsory, is strongly recommended given the various activities of the company insofar as it makes it possible to cover the risks which cannot be borne by cash.” Nor did she communicate”economic and financial situation, the last balance sheets transmitted dating from 2021, i.e. prior to the opening of the collective proceedings, and no cash flow, nor income statement for the period from August 2022 to date, having been product.” Nor, once more, has it appointed an auditor”yet obligatory.
The president and the consular judges finally considered that Sonarep had produced “no contract” with the Société Le Nickel, “yet the only way to secure a recovery plan. It follows from the letter from the managing director of SLN dated July 4, 2023, that to date, SLN cannot make a commitment to Sonarep to reserve for it the exploitation of the deposits on Poum, not being itself authorized to exploit them.” Consequently, the companyshows no reliable prospect of recovery […] No element demonstrates a real and certain will of the leaders to redress the economic and financial situation of the companyThe company is liquidated.
Contacted by the editorial staff, Sonarep’s lawyer, Me Nicolas Million, pointed out that a “appel” the decision of the commercial court “will be done as soon as possible” and that an interim order will also be filed shortly to suspend the execution of the judgment.
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