Alphena Pty Ltd (in liq) v PS Securities Pty Ltd

Judgment (5 paragraphs)

[1]

Background

Mr Rowley was appointed liquidator of Houben by order of this Court on 14 February 2017. Shortly thereafter he became aware that the only business carried on by Houben was as a trustee and that Houben did not hold any assets other than trust property. Houben had carried on business as a commercial hirer of barges and dredges from about January 2005 to 14 February 2017 as trustee of the C & D Operating Trust (the Trust) established by a deed of settlement dated 20 February 2004 (the trust deed). Investigations by the liquidator confirmed that the barges and dredges used by Houben were owned by a related entity, Dredge Quip Pty Ltd (Dredge Quip), the sole beneficiary of the Trust.
The trust deed contains an ipso facto clause. The office of trustee is ipso facto determined and vacated if the trustee, being a company, enters into liquidation, either compulsory or voluntarily (cl 13(e)(ii)). The appointers under the trust deed are Mr Robert Vincent Houben and Mr Casper Dirk Houben (cl 3). A proposal by the liquidator to the appointors that the trust deed be amended and that Houben be re-appointed as trustee of the Trust was rejected by the appointors. No replacement trustee has been appointed.
A summary of receipts and disbursements prepared by the liquidator indicates that he has collected $820.66, being cash at bank at the time of his appointment, interest on that account of $8.35 and a refund of a workers compensation insurance premium of $24,295.60, being total receipts of $25,124.61. The liquidator has paid Mr Peter Fritzkowski, accountant's fees of $1,980 (including GST), and incurred bank fees of $154.50, bringing total disbursements to $2,134.50. As at 29 March 2018, the liquidator held cash at bank of $22,990.11. The liquidator's costs of this application are estimated to be $4,327.94 (including GST).

The liquidator's remuneration

The principles regarding the payment of the liquidator's remuneration out of the assets of a trust of which the company in liquidation is the trustee are well-established. A convenient summary of the position was given by Black J in Re MF Global Australia Limited (in liq) (No 2) [2012] NSWSC 1426 at [55], as restated by Brereton J in Re North Food Catering Pty Ltd [2014] NSWSC 77 at [9], as follows: (1) The court has an inherent equitable jurisdiction to allow a trustee remuneration, costs and expenses out of trust assets, and this extends to a person such as a liquidator who is, for practical purposes, controlling a trustee (see Re Application of Sutherland [2004] NSWSC 798; (2004) 50 ACSR 297; Trio Capital Ltd (admin appointed) v ACT Superannuation Management Pty Ltd [2010] NSWSC 941; (2010) 79 ACSR 425). (2) The court may decline to exercise that jurisdiction where the company does not solely act as trustee and has sufficient beneficial assets to meet the liquidators' remuneration costs and expenses and where the work done by the liquidator in relation to trust assets may properly be treated as done for the purposes of winding up the company affairs. Thus, generally where a company has assets which are not held on trust, the liquidators' costs should usually fall on its non-trust assets (see Re GB Nathan & Co Pty Ltd (In Liquation) (1991) 24 NSWLR 674 at 685-689; Re Greater West Insurance Brokers Pty Ltd [2001] NSWSC 825; (2001) 39 ACSR 301). (3) Where the company has both trust assets and assets held beneficially by the company, the costs can be apportioned such that the remuneration attributable to the statutory liquidation work would fall on the assets beneficially owned by the company, whereas that which related to administering the trust property might fall on the trust assets (see Re French Caledonia Travel Service Pty Ltd (in liq) [2003] NSWSC 1008; (2003) 59 NSWLR 361; 48 ACSR 97 at [212]).
In the present case, the evidence establishes that Houben acted solely as trustee and did not carry on any other business in its own right. Upon the appointment of the liquidator to Houben, by operation of cl 13(e)(ii) of the trust deed, Houben ceased to be trustee of the Trust, except as bare trustee pending replacement. No other trustee has been appointed in its place and there is no real prospect of that occurring.
While it is often said that a bare trustee has no "active duties" to perform, that is an oversimplification of the position: Corumo Holdings Pty Ltd v C Itoh Ltd (1991) 24 NSWLR 370 at 398; JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths) at [3-15]. As a bare trustee, Houben continued to hold the assets of the Trust and had an obligation to safeguard the trust property. Houben retained its rights of indemnity in respect of the assets of the Trust and has an equitable lien to secure those rights over the assets of the Trust. The right of indemnity survives the trustee's loss of office: Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd (2008) 74 NSWLR 550 at [50] (Brereton J); Apostolou (as trustee of the Vasiliou Family Trust) v VA Corporation of Australia Pty Ltd [2010] FCA 64; (2010) 77 ACSR 84 at [49] (Finkelstein J).
In a case such as the present, the liquidator is entitled to be paid his remuneration, whether for administering the trust assets or for general liquidation work, out of the trust assets since the company has no assets other than the trust assets: Re Suco Gold Pty Ltd (in liq) (1993) 33 SASR 99 at 104, 105, 107, 109 (King CJ, Jacobs J agreeing); Grime Carter & Co Pty Ltd v Whytes Furniture (Dubbo) Pty Ltd (1983) 7 ACLR 540 (Grime Carter) at 542 (McLelland J); Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674 at 688-689 (McLelland J); Re French Caledonia Travel Service Pty Ltd (in liq) (2003) 59 NSWLR 361 at [201] (Campbell J); Re Sutherland [2004] NSWSC 798 at [14] (Campbell J); Bastion v Gideon Investments Pty Ltd (in liq) (2000) 35 ACSR 466 at [70] (Austin J); Re North Food Catering Pty Ltd at [17] (Brereton J); Re Independent Contractor Services (Aust) Pty Ltd ACN 119 186 971 (in liq) (No 2) [2016] NSWSC 106 (Independent Contractors) at [27] (Brereton J); Re MINMXT Holdings Pty Ltd (in liq) [2017] NSWSC 156 at [14] (Barrett AJA).
One further matter should be mentioned. The liquidator did not claim any equitable lien over the trust assets in accordance with the Universal Distributing principle: Re Universal Distributing Co Ltd (in liq) (1993) 48 CLR 171. See also Stewart v Atco Controls Pty Ltd (in liq) (2014) 252 CLR 307; [2014] HCA 15 at [22]-[23]. The absence of a claim for an equitable lien is unsurprising given the small amount of the realisations and the absence of any claim by other persons to an equitable interest in the trust assets in competition with Houben's right of indemnity as trustee.
As to the claim for remuneration, although the application is expressed to be made under the Corporations Act, s 473(3), the solicitor for the liquidator correctly accepted, referring to Independent Contractors at [31], that the Court is not exercising the statutory jurisdiction under the Corporations Act, but its inherent equitable jurisdiction to allow remuneration out of trust assets in connection with the administration of a trust fund.
In allowing remuneration to the liquidator, the Court treats the work done in administering the trust as an incident of the liquidation, and approaches the application for remuneration as analogous to one by an official liquidator for approval of remuneration: Alphena Pty Ltd (in liq) v PS Securities Pty Ltd (ACN 141 021 445) (as trustee of the Joseph Family Trust) [2013] NSWSC 447; (2013) 94 ACSR 160 at [53], [63]-[64]. Accordingly, regard may be had, by analogy, to the factors listed in the now repealed s 473(10) of the Corporations Act (which continues to apply to the administration of Houben by reason of the transitional provisions in the Corporations Act, s 1581(1)).
The essential question which arises on the present application, as arises under the applicable provisions of the Corporations Act with respect to court appointed liquidators, is whether the remuneration of which approval is sought is 'reasonable': Sanderson, as liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr [2017] NSWCA 38 (Sakr).
In Re Banksia Securities Ltd (in liq) (receivers and managers appointed) [2017] NSWSC 540 at [41]-[46], a case involving special purpose receivers appointed to a company pursuant to s 283HB of the Corporations Act, I summarised some of the propositions established in Sakr, which have present relevance by analogy to the present case.
First, the onus is on the liquidator to establish that the remuneration claimed is reasonable. It is the function of the Court to determine the remuneration by considering the material provided and bringing an independent mind on the relevant issues: Sakr at [54].
Second, question of proportionality in terms of work done as compared with the size of the property the subject of the insolvency administration or the benefit to be obtained from the work, is an important consideration in determining reasonableness: Templeton v Australian Securities and Investments Commission [2015] FCAFC 137 at [32]; (2015) 108 ACSR 545. The work done must be proportionate to the difficulty and importance of the task in the context in which it needs to be performed. This is what is encompassed in assessing the value of the services rendered: Sakr at [55].
Third, the mere fact that the work performed does not lead to augmentation of the funds available for distribution does not mean that the liquidator is not entitled to be remunerated for it. In the present case, the time spent investigating the ownership of the barges and dredges, investigating a payment to Billbergia Pty Ltd on the day of the liquidator's appointment, pursuing a GST refund, and preparing a draft report to creditors has not resulted in the augmentation of the funds available for distribution. However, provided it was reasonable to carry out the work and the amount charged is reasonable, there is no reason a liquidator should not recover remuneration for undertaking such work: Sakr at [57]-[58].
Reference should also be made to the remarks of Black J in Re Idylic Solutions Pty Ltd as trustee for Super Save Superannuation Fund and Others [2016] NSWSC 1292 at [58], that it is not the role of the Court, constituted by a judge, to undertake a line by line review of the relevant bill narratives of the insolvency practitioner. However, in that case Black J did review the bill narratives in a broad way and concluded that they supported other evidence led in respect of the claim for remuneration. I have adopted that approach in the present case.
Having reviewed the liquidator's detailed remuneration report and the draft report to creditors which provides the context for the work performed by the liquidator, I am satisfied that the work done by the liquidator was reasonable and necessary. I am also satisfied, having regard to the nature and complexity of the work performed, that the work was done at an appropriate level of seniority.
I accept that it is appropriate, in the circumstances of the present case, that the liquidator's remuneration be determined on a time-charging basis, rather than some other basis. I am satisfied that the liquidator's remuneration for the period 14 February 2017 to 21 March 2017 is reasonable and should be determined in the amount claimed of $20,351.50 plus GST, being a total of $22,386.65.
The writing off a substantial amount of the time costs incurred during the period 14 February 2017 to 21 March 2017 and writing off all time costs after that period, may be taken as a recognition by the liquidator of the proportionality of the time costs compared to the amounts recovered in the administration, given that a claim for full remuneration for all work done would have resulted in the claim for remuneration well-exceeding the available assets. As Brereton J observed in similar circumstances in Independent Contractors at [42], this is no more than a means of moderating the amount claimed having regard to the circumstances.
The liquidator also seeks approval for expenses paid to the accountant for preparation of income tax returns and BAS in respect of the Trust ($1,980) and bank fees ($154.50). I am satisfied that these disbursements were reasonably incurred and the amounts themselves (which are relatively small) are reasonable. It was appropriate for the liquidator to take the steps necessary to seek to obtain a GST refund identified by the directors in the RATA, although ultimately the result of lodgment of those terms was that no refund was realised.
While the Court does not give advice retrospectively where a liquidator has already acted without advice (Re Octaviar Ltd (in liq) [2016] NSWSC 16 at [14]), the liquidator points to the approach taken by Brereton J in Independent Contractors at [30], where a direction was given that the liquidator would be justified in recouping certain disbursements from the trust assets on the basis that although the payments had already been made out of the trust assets, they could be regarded as provisional, as they could be adjusted out of remuneration if the Court were to decide they were not justified. There is no reason not to follow that approach in the present case.

Distribution of trust assets

Where the funds available for distribution from trust assets are not exhausted by the liquidator's claim for remuneration and expenses, the question has arisen as to the manner in which the fund is to be distributed.
One view can be found in Independent Contractors where Brereton J held (at [25]) that the statutory priority referred to in s 556 of the Corporations Act does not apply in respect of trust assets, and the creditors share pari passu in the trust assets, after providing for the costs of administration, including the liquidator's remuneration and expenses.
The contrary view can be found in the decisions of the Victorian Court of Appeal in Commonwealth of Australia v Byrnes & Hewitt (in their capacity as joint and several receivers and managers of Amerind Pty Ltd (Recs & Mgrs Apptd) (in liq) [2018] VSCA 41; (2018) 124 ACSR 246 (Amerind) and the Full Court of the Federal Court (sitting at first instance on a referral from a single judge) in Jones (Liquidator) v Matrix Partners Pty Ltd, In the matter of Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40 (Killarnee). The following propositions appear in these decisions, although for different reasons.
First, an insolvent trustee company's right of exoneration and supporting lien are property of the company: Amerind at [269], [273]; Killarnee at [79]-[81] (Allsop CJ), [210]-[211] (Farrell J).
Second, the statutory scheme of priorities in the Corporations Act applies in respect of the liquidator's remuneration to the distribution of assets where a company in liquidation was trustee of a trading trust and the assets are subject to a right of exoneration and supporting lien, at least in respect of a company that only ever acted as trustee for one trust and did not conduct affairs in its own right: Amerind at [281]; Killarnee at [101]-[102] (Allsop CJ), [200]-[201], [223] (Farrell J).
Insofar as Amerind and Killarnee differ on the question of whether trust assets should be applied in paying non-trust creditors, that issue does not arise in the present case as all of the potential creditors are trust creditors.
Notwithstanding the conflict of authority between Amerind and Killarnee on the one hand and Independent Contractors on the other, as to whether trust assets are to be distributed to creditors in accordance with the statutory priorities or pari passu, these authorities do not cast doubt on the proposition referred to earlier that where a company in liquidation was the trustee of a trading trust and did not conduct business on its own account or on behalf of any other trust and has no assets of its own, the liquidator is entitled to be paid his or her remuneration and expenses, including general costs of the liquidation, out of the trust assets in priority to the trust creditors: Killarnee at [105]-[107] (Allsop CJ), [201], [217]-[222] (Farrell J); Independent Contractors at [25], [27] (Brereton J). See also Woodgate, in the matter of Bell Hire Services Pty Ltd (in liq) [2016] FCA 1583 (Bell Hire) at [22]-[23] (Farrell J).
As already indicated, the sole activities of Houben were as trustee of a trading trust. Houben has no assets of its own. In these circumstances, it is appropriate that the liquidator's remuneration and expenses be paid out of trust assets in priority to the trust creditors. That Houben had ceased to hold the office of trustee upon its liquidation and was holding the trust assets as bare trustee does not affect that result: Killarnee at [33], [200]; Independent Contractors at [48]; Grime Carter at 540-541; Bell Hire at [2], [21].
Given that the liquidator's remuneration and expenses will exhaust the trust assets, it is not necessary to address the differing views expressed in Amerind and Killarnee on the one hand and Independent Contractors on the other hand in the present case. Even if the statutory order of priority did apply, the outcome will be the same under either approach.

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