Australian Securities and Investments Commission v Lawrenson Light Metal Die Casting Pty Ltd

The affidavit evidence

1. Messrs Fraser and Honey rely, in support of the application, upon the affidavits of Mr Samuel Johnson sworn 19 October 2015, Mr Shaun Fraser sworn 19 October 2015, Mr Samuel Johnson sworn 15 December 2015 and Mr Christopher King sworn 16 December 2015. Mr Fraser's affidavit dated 19 October 2015 annexes an excel spreadsheet which attributes time spent by partners and employees of his firm to the relevant tasks specified in the Varied Appointment Orders and calculates the remuneration claimed by Messrs Fraser and Honey on that basis. The claim for that work is supported by a table summarising the work that was performed. Mr Fraser's affidavit also sets out a record of actual expenses incurred, other than legal expenses, within the relevant work streams, and undertakes an estimate of the future remuneration and future expenses, other than legal expenses, in respect of the relevant matters. Mr Fraser also expresses the view that the actual legal expenses incurred by Messrs Fraser and Honey, as set out in Mr Johnson's affidavit, were proper, reasonable and necessary. Mr Fraser recognises, in that affidavit, that he and Mr Honey have performed work in respect of matters concerning the liquidation of WIS generally which are not referable to the work streams identified in the Varied Appointment Orders, and sets out a table of that work in his affidavit, and confirms that it has been excluded from this application.
2. Mr Fraser's affidavit also identifies the complexities involved in the receivership, including the appointment of various insolvency practitioners to different entities and wine located at different locations; the uncertainty as to legal rights to and claims to the wine; difficulties extracting data from the management system maintained by WIS and analysing that data; the need to develop the protocol by which one insolvency practitioner dealt with determining claims to the wine held at different locations; and the complexity of identifying a model to establish a recovery charge payable by investors in the wine on collecting that wine, pursuant to the orders made by the Court.
3. In his affidavit dated 19 October 2015, Mr Johnson, who is a partner in the firm acting for Messrs Fraser and Honey in the application, addresses the legal work which was done in respect of the liquidation. Mr Johnson outlines the various aspects of these proceedings in which Messrs Fraser and Honey have been involved and sets out the basis on which the costs charged by their legal representatives have been calculated. He expresses the view that the actual legal costs incurred by them in respect of the relevant matters are proper and reasonable and necessary, and that their estimated legal costs are proper, reasonable and necessary and reflect his best estimate of the legal costs likely to be incurred. By a further affidavit dated 15 December 2015, Mr Johnson provides updated information as to the number of claimants who have collected wine in specie, and as to the progress of sale of the remaining wine stock, and updates, costs, remuneration and Counsel fees. By an affidavit dated 16 December 2015, Mr King corrects an earlier calculation of the amount that is likely to be available for distribution under the Varied Appointment Orders, and also sets out further information in respect of the basis on which sale commission due to Grays, who are storing and selling the remaining wine stock, has been calculated.
4. Messrs Cussen and Strawbridge rely, in support of their application, on the affidavit of Mr Neil Cussen sworn 19 October 2015. I will refer to aspects of Mr Neil Cussen's evidence below. Messrs Cussen and Strawbridge also rely on the affidavit of their solicitor, Mr Glen Cussen, sworn 19 October 2015 in support of their claim for legal costs of $355,335.90 across the various categories of work to which I refer below. That claim will need to be adjusted so as to exclude GST on the basis noted below. Costs are claimed in respect of the October 2013 proceedings in the amount of approximately $76,101; in respect of the Douglas Hawkins application in the amount of $119,682; in respect of work done prior to and in respect of the application for the appointment of Messrs Fraser and Honey as receivers to both the Denman wine stock and the Homebush wine stock; finalisation of the receivership following orders made in October 2014; and in respect of the calculation of the recovery charge and the application for remuneration. Mr Glen Cussen's evidence is that the legal advisers to Messrs Cussen and Strawbridge also acted for them on other matters involving the James Group of Companies but those costs have been excluded from the costs claimed (G Cussen 19.10.15 [13]-[15]). Mr Glen Cussen's evidence is that the time recorded by Messrs Cussen's and Strawbridge's solicitors are reasonable, proper and accurate records of their costs incurred referrable to the Denman wine stock and associated applications, and that the costs claimed are proper, reasonable and necessary and fall within the categories specified in the Court's orders of 24 October 2014, as varied in September 2015 (G Cussen 19.10.15 [69]-[70]).
5. Messrs Merryweather and Hall rely, in support of their application, on the affidavit of Mr Merryweather sworn 19 October 2015. Their claims for costs, disbursements and remuneration is supported by a schedule prepared by an employee of Mr Merryweather's firm under his supervision and Mr Merryweather expresses the belief that the amounts claimed are correct, fall within the relevant categories of costs, disbursements, expenses and remuneration and represent in each case an appropriate and reasonable amount in respect of the work performed (Merryweather 19.10.15 [13]).

The applicable legal principles

1. This application involves, first, a claim to reimbursement of costs, disbursements and expenses of the receivers. Mr Katekar, who appears for Messrs Cussen and Strawbridge, points out that expenses are generally treated differently from remuneration, and the receivers' right to recovery of them is analogous to a trustee's right of indemnity: Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96; Re Stockford Ltd; Korda [2004] FCA 1682; (2004) 52 ACSR 279 at [50]; AAA Financial Intelligence Ltd (in liq) (No 2) [2014] NSWSC 1270. The claim also involves a claim to remuneration for the receivers. In Mirror Group Newspapers Plc v Maxwell & Ors (No 2) [1998] 1 BCLC 638 at 648, Ferris J noted that a receiver, at least when acting as an officer of the Court, was charged with the duty of protecting, getting in, realising and ultimately passing on to others assets and property which belong not to themselves but to creditors or beneficiaries of one kind or another and observed that: "Their fundamental obligation is, however, a duty to account, both for the way in which they exercise their powers and for the property which they deal with." His Honour also observed (at 648) that the allowance of remuneration was an exception to the no profit rule applicable to fiduciaries, and involved a conflict between the interest of a fiduciary who was to receive remuneration and the interests of those to whom the fiduciary duty was owed who would bear the remuneration, and that the office holder who sought to be remunerated at a particular level must justify his claim.
2. The remuneration of a Court-appointed receiver may be approved by the Court which appointed that receiver: Australian Securities and Investments Commission v Lawrenson Light Metal Die Casting Pty Ltd [1999] VSC 500; (1999) 33 ACSR 288. In Ide v Ide [2004] NSWSC 751; (2004) 50 ACSR 324 at [39]ff, Young CJ in Eq described the Court's role in determining such an application (omitting authorities) as follows: "First, the court constituted by a judge, never considers a review of quantum, but only matters of principle. Secondly … a receiver is entitled to have his costs, charges and expenses properly incurred in the discharge of his ordinary duties, or in the performance of extraordinary services which have been sanctioned by the court. Thirdly …: The receiver must justify the reasonableness and prudence of the tasks undertaken for which remuneration is sought, in the same way as he must justify the reasonableness and prudence of incurring disbursements for which he seeks allowance and reimbursement. Thus, as with a falsification of accounts, the relevant onus is on the receiver. Fourthly, it must always be remembered that a receiver's remuneration is not in the same category as costs … The receiver is making application for a fair recompense for what he or she has properly done. The award is in the discretion of the court according to well known guidelines … Fifthly, the court's objective is to award a sum or devise a formula which will reasonably compensate the receiver for the time and trouble expended in the execution of his duties and, to some extent, the responsibility he has assumed … the vital question is what is the value to the estate of the work done by the receiver ... Sixthly, the court will usually work off time sheets created in the receiver's office provided that they do significantly more than merely detail the total number of hours spent by the receiver and officers of particular grades on his or her staff …. Seventhly, the court is guided by professional scales of charges … What is important is the broad average or general rate charged by persons of the relevant status and qualifications who carry out the relevant type of work."
3. That approach was generally approved by Barrett J in Mohamed v Hurstville Tower Medical Clinic Pty Ltd (in liq) [2006] NSWSC 4 at [9], where his Honour also noted the observation of Branson J in Wenkart v Pantzer [2005] FCA 1572 that Young CJ in Eq may have expressed the first principle noted above too strongly and that it was "sufficient to note that it will rarely, if ever, be appropriate for the Court to review a decision of a taxing officer on a line by line basis".
4. In Australian Securities & Investments Commission v Letten (No 23) [2014] FCA 985, Gordon J in turn observed a receiver's remuneration (and also costs and expenses) must be reasonable and properly incurred; the sum to be fixed by the Court may properly be calculated on the basis of time reasonably spent at specified rates, with a possible qualification for small administrations which is not presently applicable; the Court will initially ascertain whether a prima facie case is made out; the receiver must provide sufficient information for the Court to properly assess the claim; and the onus is on the receiver to justify that the tasks done were reasonable and prudent, including that work was done at an appropriate level of seniority and done efficiently. That approach was approved by the Full Court of the Federal Court in Templeton v Australian Securities and Investments Commission [2015] FCAFC 137 at [15]. The Court may also have regard to proportionality and factors of the kind specified in s 425(8) of the Corporations Act 2001 (Cth) in that regard: Templeton at [31]. That section, which was introduced by the Corporations Amendment (Insolvency) Act 2007, has the effect that, in determining the remuneration of a receiver appointed under an instrument, the Court must have regard to whether the remuneration is reasonable, taking into account all or any of specified matters. Those factors include the extent to which the work performed or likely to be performed by the receiver was reasonably necessary; the period during which the work was, or is likely to be, performed by the receiver; the quality and complexity of the work; whether the receiver was, or is likely to be, required to deal with extraordinary issues, or accept a higher level of risk or responsibility than is usually the case; the value and nature of any property dealt with, or likely to be dealt with, by the receiver; whether the receiver was, or is likely to be, required to deal with other insolvency practitioners; the number, attributes and behaviour, or the likely number, attributes and behaviour, of the company's creditors; and, if the remuneration is ascertained, in whole or in part, on a time basis, the time properly taken, or likely to be properly taken, by the receiver in performing the work; and whether the total remuneration payable to the receiver is capped.
5. In Re Metal Storm Ltd [2015] NSWSC 1699 at [11], I noted that the relevant principles: "… include the fact that court appointed receivers are entitled to remuneration, and indeed their entitlement to remuneration is a necessary feature of the court's ability to appoint insolvency practitioners to such a position. … court appointed receivers are required to have their remuneration approved by the court before they are permitted to draw payment. There are many examples of cases where that has occurred including, for example, Re Application of Crouch [2005] NSWSC 1122 and Coeclerici Asia (Pte) Ltd v Gujarat NRE Coke Ltd (No 2) [2015] FCA 809."

The parties' positions generally

1. I will first refer to the parties' positions generally, before turning to the specific categories of costs, disbursements and remuneration that are claimed pursuant to the Varied Appointment Orders.
2. The initial claim of Messrs Fraser and Honey was substantial, for the amount of $1,431,914.99. Mr Sulan, who appears for, Messrs Fraser and Honey submit that their claim for costs, expenses and remuneration should be approved because the tasks undertaken by them were necessary, appropriate and reasonable, particularly in the context of the complications which have arisen in the matter.
3. The initial claim of Messrs Cussen and Strawbridge for costs, expenses and remuneration was also substantial, for the amount of $587,014.99. Mr Katekar, who appears for Messrs Cussen and Strawbridge, submits that their conduct in bringing the relevant issues to the attention of the Court and seeking appointment as Court-appointed receivers of the Denman wine stock was appropriate. He also submits that their costs, expenses and remuneration should be approved because they undertook a complex task concerning valuable property with a large number of owners, which was made more difficult by several matters including the Douglas Hawkins application, and that the work undertaken was necessary and appropriate and the costs incurred were reasonable in amount. Mr Katekar also points to the difficulties that arose from incompleteness and inconsistency of the relevant companies' books and records, with uncertainty as to the ownership of the wine stock, a matter to which I also referred in my judgment in respect of the Douglas Hawkins application ([29], [47]). Messrs Cussen and Strawbridge note that their costs of the Douglas Hawkins application account for over one-third of the legal costs claimed, and that the extent of legal costs claimed is otherwise partly explicable by the several Court applications involved in this matter and the difficulties in respect of claims to the wine.
4. The initial claim of Messrs Merryweather and Hall for costs, expenses and remuneration was for the lesser, but still substantial, amount of $256,697.08. Mr Kucharski, solicitor, who appeared for Messrs Merryweather and Hall in the application referred to matters similar to those on which the other insolvency practitioners relied in support of Messrs Merryweather and Hall's claim for costs, expenses and remuneration, including the complexity of the facts and circumstances relating to claims in respect of the Homebush wine. Mr Kucharski also refers to Mr Merryweather's evidence that the costs claimed are correct and fall within the categories of costs, disbursements, expenses and remuneration claimable under the Varied Appointment Orders and that the relevant work was performed by him or employees under his supervision and was reasonably necessary in all the circumstances (Merryweather 19.10.15 [13]) and to Mr Merryweather's evidence that he or an employee under his supervision reviewed invoices issued by the legal advisers to Messrs Merryweather and Hall in respect of the matter and is satisfied that the legal fees and disbursements were correct, fell within the relevant categories and represented an appropriate and reasonable amount in respect of the work performed (Merryweather 19.10.15 [14]).
5. Tragopans, represented by its director Mr Schick, makes several submissions in opposition to the insolvency practitioners' claim for remuneration. By a notice given to the other parties on 17 November 2015, Tragopans summarised the basis of its opposition to the orders for remuneration and expenses in favour of the receivers as follows: "The assets over which the liquidators have claimed a lien are the assets of Investors and are not assets of Wine Investment Services Pty Ltd (in liquidation). The liquidator and receivers have acted with reckless disregard for the principle that any right to payment for 'recovery' of the assets over which they have claimed a lien is dependent on their 'care and preservation of the assets'. The remuneration and expenses claimed are not reasonable."
6. First, Tragopans submits that the wine was held under a bailment by WIS for investors and that excludes the application of any equitable lien or similar principle in respect of the costs and remuneration of the receivers. I considered that submission, and did not accept it, in the 2014 Judgment (at [13]) where I observed that: "Tragopans submits that the fact that the wine is or may be held under bailment by WIS for the investors excludes the application of an equitable lien. I do not accept that submission, so far as realisation costs have been incurred by the receivers or by Messrs Fraser and Honey where they are appointed as court-appointed receivers to the Denman Wine Stock. To the extent that Messrs Fraser and Honey incur corresponding costs, they will also do so, not in their capacity as receivers of WIS, but in their capacity as receivers appointed to the bottles of wine. Similarly, Messrs Cussen and Strawbridge have incurred such costs in respect of the receivers appointed to the bottles of wine to which they have been appointed receivers, not in any capacity in respect of WIS. Had those costs not been incurred, the wine could not in fact be distributed and could not be identified as attributable to particular investors, and this is a traditional situation where an equitable lien is available, as recognised in Stewart v Atco Controls above. This approach is also consistent with that adopted by the Court in Re Application of Crouch [2005] NSWSC 1308 at [11] in respect of the then receiver's proper receivership costs, where a voluntary levy was not paid, and a similar approach in Re Renovation Boys Pty Ltd [2014] NSWSC 340. The Recovery Charge in this case is also voluntary, at least in the sense that no investor is bound to pay it, although they cannot take possession of particular wine that would otherwise be attributable to them without bearing their share of the costs of preserving it, either by payment of the Recovery Charge or by sale of the wine if it is not paid and application of the lien to the proceeds." Even if it is open to Tragopans to reagitate this issue in this application, where the Court has already made the Varied Appointment Orders providing for the receivers' remuneration, I do not accept this submission for the reasons indicated in the 2014 Judgment.
7. In its summary of submissions dated 17 December 2015, Tragopans also submitted that s 420 of the Corporations Act defines the powers of a receiver in relation to property of a company in receivership and that s 420(3) of the Act provides that a receiver's powers in relation to the property of a corporation "does not affect any rights in relation to that property of any other person other than the corporation". Tragopans also submitted that the receivers' entry into possession and taking control of the Denman wine stock and the Homebush wine stock was in contravention of s 420 of the Corporations Act and of the principles identified in Re Universal Distributing Co Ltd (in liq) (1933) 48 CLR 171. Tragopans submits that the receivers were only entitled to recover costs by realising assets of the companies in receivership, and not by dealing with the property of third parties which they had "illegally acquired".
8. That submission gave too little weight to the fact that Messrs Cussen and Strawbridge and subsequently Messrs Fraser and Honey were appointed by the Court, following hearings on the merits, as Court-appointed receivers over the relevant wine. In the 2014 Judgment, I also dealt with, and did not accept, Tragopans' submission that the claim to indemnity was not available because the bottles of wine were assets of a company in receivership or by reference to s 420(3) of the Corporations Act. I noted (at [19]) that: "Mr Schick also points out that the receivers were afforded the powers under s 420 of the Corporations Act, and refers to s 420(3) which provides that the conferring of powers on a receiver in relation to property of the corporation does not affect any rights in relation to property of any other person other than a corporation. In the present case, it seems to me that the reference to s 420 of the Corporations Act in the Court's orders was simply a convenient shorthand to avoid replicating the full list of powers in s 420(2) in the Court's orders and did not import the limitation in s 420(3) of the Corporations Act, not least because the Court's orders did not, as Mr Katekar points out, confer powers specifically in relation to the property of WIS, but rather in respect of the Denman Wine Stock, whoever owned it. Moreover, to the extent that the wine stock was property of WIS, that submission does not assist Tragopans, because the powers under s 420(2) would in fact limit WIS's rights, as s 420(3) of the Corporations Act recognises. I therefore do not accept Tragopans' submission that the Recovery Charge involves any circumvention of s 420(3) of the Corporations Act." Even if it is open to Tragopans to reagitate that matter in this application, I do not accept that submission for the reasons noted in the 2014 Judgment.
9. Tragopans also submits that the receivers acted with reckless disregard for the wine. Tragopans submits that the receivers did not secure the wines which were entrusted to them, and points to a discrepancy of 2,478 bottles of wine between a stocktake of the wine stock at Denman undertaken by Messrs Cussen and Strawbridge at the time of their appointment and a further stocktake at the time of the transfer of the Denman wine stock to Homebush. I addressed that matter in the 2015 Judgment where I noted (at [22]) that: "Mr Schick also points to a difference between the number of bottles of wine stored at the Homebush and Denham premises, as previously advised by the respective receivers, and the number of bottles identified in the stock take by Grays of 2478 bottles against a total of about 200,000 bottles. That discrepancy is not explained by the evidence, and may involve counting errors, or possibly, theft. It is not, as Mr Schick contends, a debt owed by the receivers, not least because it is not presently established whether the bottles were lost, stolen or had merely been miscounted, or if so, that there was any lack of reasonable care by any one or more of the three sets of receivers which have had responsibility for the wine at relevant times." No further evidence has been led to advance the position as to this matter. I am satisfied that this matter does not warrant denying the receivers the costs, expenses or remuneration to which they would otherwise be entitled under the Varied Appointment Orders, in the absence of evidence that any one of them or all of them have acted unreasonably in this regard. There is also no basis for reducing those costs, expenses or remuneration or for determining the amount of any such reduction were it otherwise justified.
10. Tragopans also submits that the wine should have been kept in controlled temperature storage to preserve its pedigree as wine that had been correctly stored and that the storage warehouse operated by Grays, an auction house appointed by Messrs Fraser and Honey to store the wine and sell it to the extent it is not collected by investors, is not temperature controlled. Tragopans submits that the removal of the wine to storage that is not temperature controlled has damaged the property of investors which are owners of the wine taken into possession and controlled by the receivers. Messrs Cussen and Strawbridge respond that, to the extent that complaint is made that the wine was not stored in a temperature controlled environment, it is not applicable to them because the Denman wine stock was refrigerated until it was handed over to Messrs Fraser and Honey in November 2014 (N Cussen 19.10.15 [15], [26(c)]. Messrs Merryweather and Hall also rely on an affidavit of Mr Honner dated 16 December 2015 in respect of this allegation, which indicates that warehouse space at which the Homebush wine stock was situated, at the time of their appointment, was not temperature controlled, refrigerated or air-conditioned.
11. This criticism would only be justified in respect of Messrs Merryweather and Hall or Messrs Fraser and Honey in respect of the Homebush wine stock to the extent that it could be contended that they should have transferred that wine, although it was not previously held in a temperature controlled environment at Homebush, to a temperature controlled environment after they took possession of it. There is no evidence to support that proposition and the thrust of Tragopans submission, that the value of wine is reduced by the risk of damage if it is held outside a temperature controlled environment, is inconsistent with it. There is no reason to think that any benefit would have been obtained from moving that wine to such an environment after the risk of damage to it and any consequential loss of value had already occurred for wine stock at Homebush prior to the receivers' appointment. (I recognise that Mr Schick suggested, in submissions, that wine was not stored at Homebush for long periods, but that fact is not established by evidence.) I do not accept that there was any relevant failure by Messrs Merryweather and Hall or Messrs Fraser and Honey in continuing to hold the Homebush wine in the manner in which it had previously been held.
12. Tragopans also contends that Messrs Fraser and Honey should have continued the storage of the Denman wine in a temperature controlled environment after it was transferred to them. However, there was no further evidence to support such a contention, beyond that which had been led when the matter was raised by Tragopans and addressed in the 2015 Judgment. The difficulties with that contention, as I there noted (at [8] and [23]) is that it does not seem to have been feasible to hold the wine in such an environment because the number of bottles of wine involved substantially exceeded the capacity of Grays to store such bottles in a temperature controlled environment; the costs of such storage elsewhere would have been substantial; and that the claim made by Tragopans that Messrs Fraser and Honey should have stored the Denman wine in that manner does not address the question who would have funded that course. I also there noted (at [23]) that the extent of any reduction in sale proceeds, by reason of the manner in which the wine was held is speculative and that: "Mr Schick approached that matter by pointing to the comparison of retail sale prices and auction sale prices in respect of one of the wines in issue, and then extending that submission to a second wine in issue. However, it is not established that the difference between the two has anything to do with storage conditions, since retail sale prices and auction sale prices may be very different, and Grays have estimated auction values which are significantly less than market value. It is also not established that any error by the receivers in this respect, if there was one, is of a character that would warrant depriving them of the right to indemnity in its entirety. Finally, to the extent that investors have claims in this regard, it is open to them to pursue them in a court or tribunal with appropriate jurisdiction, in a manner that would likely lead to a more accurate determination of the particular facts, than could be achieved in an application of this kind." I am satisfied that this matter does not warrant denying Messrs Fraser and Honey, or the other receivers, the costs, expenses or remuneration to which they would otherwise be entitled under the Varied Appointment Orders. There is also no basis for reducing those costs, expenses or remuneration, or to determine the amount of any such reduction were it otherwise justified.
13. Tragopans also attacks the reasonableness of the remuneration and the costs claimed by the receivers. Tragopans submits that the ownership of the wine was readily apparent from the computerised management system operated by WIS. I do not accept that submission, which is inconsistent both with the affidavit evidence of the receivers, which I accept, and with the fact that ownership of the wine had in fact been contested in the earlier proceedings before the Court. Tragopans also points out that the Applicants' claim per bottle for reimbursement of expenses and remuneration exceeds the claim made by another insolvency firm, when it was previously appointed as receivers of the same wine in an earlier receivership. I am not assisted by that submission, since the circumstances of the two receiverships are not shown to be similar, and there is no suggestion that that earlier receivership involved the difficulties of the appointment of multiple insolvency practitioners to wine held in premises occupied by different companies at different locations which have arisen in this matter, or the costs associated with the Douglas Hawkins application.
14. Tragopans did not submit it is inappropriate to have regard to the remuneration calculated by the receivers on the basis of time-based costing, at least as the starting point for approving their remuneration; Tragopans also did not identify any specific instances of over-servicing, whether on the basis that work was not undertaken by persons of appropriate seniority or that excessive time was taken in particular tasks or that work was unnecessarily undertaken, beyond its broader submission that the work should not be remunerated or that the costs claimed were greater than in an earlier receivership, to which I referred above; and also did not submit that there was duplication of work, in respect of any specific tasks, at least within the particular firms. A degree of duplication between the firms was perhaps inevitable given the earlier overlap between their functions, a matter that was ultimately addressed by the appointment of Messrs Fraser and Honey as Court-appointed receivers over both the Denman and Homebush wine stock. However, the latter matter does not support a reduction in the receivers' remuneration where it was the necessary consequence of the circumstances of their appointment.
15. Mr Sulan submits that, in determining the proportionality of those costs, it is necessary to recognise that some 200,000 bottles of wine needed to be dealt with in the distribution and sales process, and with claims by some 366 investors to that wine needed to be determined, and that the market value of the wine had been estimated as nearly $6 million in May 2015 (Fraser 7.5.15 [14]-[15]) although the recovery is likely to be significantly lower. Mr Katekar in turn responds to Tragopans' complaint that Messrs Cussen's and Strawbridge's remuneration and expenses are not reasonable by referring to the evidence which they have led in support of their claim for remuneration and expenses and pointing to the absence of evidence led by Tragopans in response. Mr Katekar also submits that the evidence led by Mr Neil Cussen should be accepted, absent any evidentiary challenge from Tragopans or an issue as to proportionality. I address Mr Cussen's evidence as to these matters below. It seems to me that an issue as to proportionality does arise from the size of the costs, expenses and remuneration claimed, at least by Messrs Fraser and Honey and Cussen and Strawbridge, both separately and in combination, which I will address below.
16. Mr Katekar also points out that, as I noted above, the charge rates of the insolvency practitioners were not challenged, and that Tragopans led no evidence to suggest a lesser charge out rate should have been applied. I accept that there is no basis for me to take that view where there is no evidence to suggest that the rates charged were either unusual or inappropriate for a complex receivership. Messrs Merryweather and Hall also respond to Tragopans' criticism that the level of the costs, disbursements, expenses and remuneration claimed is not reasonable by referring to the substantive evidence on which they rely in that respect. I generally accept that the tasks undertaken by the relevant receivers were necessary, appropriate and reasonable, although whether the costs fall within the scope of the relevant orders is a matter that must be determined by reference to the particular categories of those orders, which I will address below.
17. I recognise that the size of the receivers' claims for costs, expenses and remuneration will have a significant impact upon the availability of any significant distribution to investors in the wine. Those claims will be reduced, but not substantially, to the extent that I hold below that Messrs Fraser and Honey and Messrs Merryweather and Hall are not entitled to recover their costs of the Douglas Hawkins application under the Varied Appointment Orders. Tragopans, and other investors, could justifiably consider that the amount of the remuneration, costs and expenses incurred in respect of the process is very substantial, and that the outcome delivers them, or at least those persons who have not elected to claim their wine and pay the recovery fee, limited financial benefit. It does not follow from those matters, however, that the costs, expenses or remuneration claimed is not reasonably claimed, given the complexity of the issues.
18. I recognise the importance of proportionality in determining the amount of an insolvency practitioner's remuneration, a matter which was emphasised in the judgment of Brereton J in AAA Financial Intelligence Ltd (in liq) (No 2) above. However, it seems to me that the substantial costs claimed in these receiverships reflect several matters, none of which were in the insolvency practitioners' control, namely the issues as to ownership of the wine; the significant costs involved in physical custody, transport and sale of 200,000 bottles of wine; that Messrs Cussen and Strawbridge were faced with an unsuccessful challenge to their appointment as Court-appointed receivers in the Douglas Hawkins application and are unlikely, as a practical matter, to be able to recover the costs of that challenge from the persons who brought it; the range of legal issues; and the complexity of the arrangements for distribution or sale of the wine. In those circumstances, notwithstanding the desirability of proportionality, it seems to me that the Court cannot arbitrarily reduce the amount allowable by way of the actual costs, disbursements and remuneration of the insolvency practitioners to reach a total that would be less than that which was actually incurred.
19. Tragopans also submits that the Court would not be justified in approving any payment for expenses, costs or remuneration to the receivers and the provisional "recovery charge" paid by those investors who have collected wine should immediately be reimbursed to them. I do not accept that submission, for the reasons noted above, and because that recovery charge was authorised by the orders previously made by the Court.

Paragraph 7(a) of the Varied Appointment Orders - costs of sale of remaining wine stock

1. I now turn to the particular categories of costs incurred. The first category of costs, disbursements and expenses specified in paragraph 7(a) of the Varied Appointment Orders, payable in first priority, was the costs of Messrs Fraser and Honey "in selling the Remaining Stock or having it sold including the cost of transporting the Denman Wine Stock for the purposes of sale". Messrs Fraser and Honey claim $74,800.50 in costs, disbursements and expenses of the sale of that stock (Fraser 19.10.15 [12] (Annexure D), [34(b)], Johnson 19.10.15 [61]). Messrs Fraser and Honey also claim up to $381,849 in estimated costs, disbursements and expenses. The large part of those expenses, costs and disbursements relate to commission that will be charged by Grays, an online auction house, in respect of the sale of the remaining wine. That commission will be in the order of nearly $380,000, depending upon whether all the wine stock is ultimately sold and the value which is achieved for that sale, as calculated on the medium between the Grays' high value and low value for the wine. I am satisfied that these costs were properly incurred and should be allowed pursuant to the Varied Appointment Orders.

Paragraph 7(b) of the Varied Appointment Orders - costs of the applications

1. The second category of costs, disbursements and expenses specified in paragraph 7(b) of the Varied Appointment Orders relates to payment, on a pari passu basis, of any Court approved costs, disbursements and expenses of Messrs Fraser and Honey, Messrs Cussen and Strawbridge and Messrs Merryweather and Hall of the applications.
2. Messrs Fraser and Honey claim $233,505.09 in costs, disbursements and expenses of the 2014 and 2015 applications (Johnson 19.10.15 [61], Johnson 15.12.15 [16]-[18]). Mr Sulan submits that the application for one insolvency practitioner to be appointed to deal with the wine, pooling the stock at Denman and Homebush, required a hearing over a day and that proceedings relating to the setting of the recovery charge also proceeded over one-two days. Mr Sulan also points to evidence of numerous communications between the liquidators, claimants and creditors, and Mr Schick and another investor, Mr Wilkinson. Mr Sulan also points out, and I accept, that the process of setting the recovery charge was complex, involving a significant level of economic modelling and relatively complex orders. Messrs Fraser and Honey also claim up to $53,272.65 in costs, disbursements and expenses in respect of this application in respect of their remuneration (Johnson 19.10.15 [61], Fraser 19.10.15 [36]). I am satisfied that these costs were properly incurred and should be allowed pursuant to the Varied Appointment Orders.
3. Messrs Cussen and Strawbridge claim $121,479.12 in costs, disbursements and expenses of the 2014 and 2015 applications (G Cussen 19.10.15 [70]-[71], [76], N Cussen 19.10.15 [43]). Messrs Cussen and Strawbridge also initially claimed costs of up to $38,000 in costs, disbursements and expenses in respect of this application in respect of their remuneration (G Cussen 19.10.15 [77]-[78], N Cussen 19.10.15 [45]). By a further submission, with leave after the conclusion of the hearing, Messrs Cussen and Strawbridge advised that their actual costs and disbursements of the application to 18 December 2015 were $35,727.52 exclusive of GST, a little less than the estimated amount, and the costs allowed to them should be amended accordingly. With that amendment, I am satisfied that these costs were properly incurred and should be allowed pursuant to the Varied Appointment Orders.
4. Messrs Merryweather and Hall, who played a more limited role in the applications, claim an amount of $18,883.28 in costs, disbursements and expenses of this application, entirely comprising amounts payable in respect of legal fees and disbursements to their solicitors (Merryweather 19.10.15 [11(a)], [13]-[14]). Mr Merryweather expresses the view that costs and disbursements incurred by his legal advisers fell within the relevant categories of costs, disbursements, expenses and remuneration claimed under the remuneration regime and represent in each an appropriate and reasonable amount in respect of the work performed or the disbursements incurred (Merryweather 19.10.15 [14]). I am also satisfied that these costs were properly incurred and should be allowed pursuant to the Varied Appointment Orders.

Paragraph 7(c) of the Varied Appointment Orders - costs of preservation, investigation and adjudication

1. The third category of costs, disbursements and expenses provides for the Court approved costs, disbursements and expenses of Messrs Fraser and Honey in preserving, investigating and adjudicating upon competing claims and the value of claims, including in accordance with the procedures established by the 2014 Judgment. Messrs Fraser and Honey claim the amount of $135,018.75 referable to those costs (Fraser 19.10.15 [12], Johnson 19.10.15 [61]), which are partly attributable to costs of the Douglas Hawkins application. The Varied Appointment Orders also did not extend to costs incurred in respect of that application by Messrs Fraser and Honey in their capacity as liquidators of WIS. Mr Sulan also fairly acknowledges that Messrs Fraser and Honey did not take an active role in the Douglas Hawkins application although, as I noted in paragraph 3 of my judgment in respect of that application, they had written two letters which were drawn to the Court's attention at their request.
2. Mr Sulan nonetheless submits that the Douglas Hawkins application would have had a significant impact on Messrs Fraser's and Honey's role as liquidators of WIS, so far as they were already dealing with multiple claims to the wine stock and had issued circulars in respect of investor creditors and ownership of the wine and that the practical effect of the application would have been to return the control of the wine stock to Mr James or interests associated with him, had it been successful. Mr Sulan also submits that the costs incurred in respect of that application were referrable to Messrs Fraser's and Honey's role in bringing relevant matters to the attention of the Court and other practitioners. While I can broadly accept those propositions, it seems to me that the steps taken by Messrs Fraser and Honey in respect of that application were nonetheless referable to the performance of their duties as liquidators of WIS.
3. Mr Sulan fairly recognised, in submissions, that whether any work done by Messrs Fraser and Honey in respect of the Douglas Hawkins application was directed to their duties as liquidators of WIS, or to the preservation of the wine that was a matter of characterisation, and that the costs could be characterised as either costs incurred in the liquidation of WIS or as being referrable to an attempt to protect the underlying asset. It seems to me that the former characterisation is correct, where it reflects the only capacity of Messrs Fraser and Honey at the relevant time. In the ordinary course, and but for their subsequent appointment as Court-appointed receivers to the wine, Messrs Fraser and Honey's costs and expenses referrable to the Douglas Hawkins application would have been borne by them in their capacity as liquidators of WIS, subject to any right of indemnity against the assets of those companies. It also does not seem to me that that position should be changed, after the event, by their appointment as Court-appointed receivers of the wine. I am not satisfied that Messrs Fraser and Honey are properly entitled to recover their costs referable to the Douglas Hawkins application pursuant to the Varied Appointment Orders.
4. By a further schedule provided, at the Court's request, the solicitors for Messrs Fraser and Honey distinguished between the time costs of work totalling $497,509, made up of the amounts of $461,369 and $36,135 referred to in paragraphs 53 and 55 below. They distinguished work which was solely concerned with the Douglas Hawkins application, which they quantified as $17,129; work which they contended concerned both the Douglas Hawkins' application and the preservation, investigation and adjudication of competing claims and the value of those claims, quantified as $20,340; and work relating to the preservation, investigation and adjudication of the competing claims and the value of those claims which they quantified as $460,035. I am satisfied, for the reasons noted above, that the first of those categories of work does not fall within the Varied Appointment Orders. The description of the matters claimed in the second category as referrable to both the Douglas Hawkins application and other categories is not such that I can be satisfied that those time costs would have been incurred other than in connection with the Douglas Hawkins application, and indeed it is not altogether clear why some of those costs were not referrable only to that application. I am not persuaded that those time costs fall within the Varied Appointment Orders and they should be excluded. The time costs in the third category in the amount of $460,035 properly relate to the preservation, investigation and adjudication of the competing claims and should be allowed under paragraph 7(d) of the Varied Appointment Orders. I return to this question in paragraph 55 below.
5. The third category of costs, disbursements and expenses specified in paragraph 7(c) of the Varied Appointment Orders also provides for payment of any Court approved costs, disbursements and expenses of Messrs Cussen and Strawbridge in preserving, investigating and adjudicating upon competing claims, and the value of those claims, to the Denman wine stock as part of their receivership of that stock, including in defending the Douglas Hawkins application. Messrs Cussen and Strawbridge claim the amount of $321,159.09 exclusive of GST (corresponding to $336,885.87 inclusive of GST) in costs, disbursements and expenses relating to those matters (N Cussen 19.10.15 [38]-[39], [43], [45], G Cussen 19.10.15 [70]-[71], [76]).
6. It seems to me that the costs of appointment of Messrs Cussen and Strawbridge as receivers fall within the scope of the Varied Appointment Orders. In my view, Mr Cussen is correct in the view he expresses that those costs fall within paragraph 7(c)(i) of those orders, where the application for their appointment as Court-appointed receivers was a proper step in establishing the legal mechanism for the preservation, investigation and adjudication of claims in the wine. The figure set out above includes $157,345 exclusive of GST (corresponding to $173,080.42 inclusive of GST) in expenses (N Cussen 19.10.15 Annexure "D") relating to rent for the Denman warehouse, insurance, including in respect of the wine, electricity, advertising, including to invite claims. Mr Cussen gives evidence of his belief that those costs were necessary, proper and reasonable (N Cussen 19.10.15 [38(e)]) and I am satisfied that these costs were properly incurred and should be allowed pursuant to the Varied Appointment Orders.
7. This category also includes costs of Messrs Cussen and Strawbridge in respect of the Douglas Hawkins application which I addressed in the 2014 Judgment. I there noted (at [16]) that Messrs Cussen's and Strawbridge's right to recover costs from the applicants in the Douglas Hawkins application did not exclude their claim to indemnity for those costs, although any amount ultimately received from the applicants would reduce the amount for which indemnity was in practice required, and noted that there was both generally, and in the particular case, a risk as to whether those costs would ultimately be recovered. The order made in the 2014 Judgment, in respect of the costs of the Douglas Hawkins application, was that the proper and reasonable costs and remuneration of Messrs Cussen and Strawbridge in defending the Douglas Hawkins application were costs of the receivership, to be dealt with in the manner provided in paragraphs 7(c)(i) of the Varied Appointment Orders. I am satisfied that those costs were properly incurred and should be allowed pursuant to that order.
8. The third category of costs, disbursements and expenses specified in paragraph 7(c) of the Varied Appointment Orders also provides for payment of the Court approved costs, disbursements and expenses of Messrs Merryweather and Hall in preserving the Homebush wine stock. Messrs Merryweather and Hall claim the amount of $194,708.80 referable to those costs, partly made up of costs of transport and storage of the Homebush wine stock in the amount of $67,277.76; costs of insurance cover in respect of the Homebush wine stock of $13,963.17; and costs of pallet hire for the Homebush wine stock in the amount of $4,519.01 (Merryweather 19.10.15 [11], [13]-[14]). I am satisfied that these costs were properly incurred and should be allowed under the Varied Appointment Orders.
9. Messrs Merryweather and Hall also claim legal fees and disbursements in respect of this category, the large part of which, $93,000, is referrable to the costs of the Douglas Hawkins application. The first difficulty with that claim is that Messrs Merryweather and Hall did not previously seek, and the Varied Appointment Orders do not include, specific provision for their costs in that regard. A second difficulty with that claim is that the orders sought against Messrs Merryweather and Hall in the Douglas Hawkins application were not limited to a challenge to their appointment as Court-appointed receivers to the Homebush wine stock, and included an order that they or ANZ Bank provide a payout figure of the amount of money owed by James Australia Group Pty Ltd (recs and mgrs apptd) (in liq) ("JAG") to ANZ; an order directing that Messrs Hall and Merryweather deliver up books of WIS and other entities in their control to specified persons; and orders enjoining not only Messrs Merryweather and Hall but also ANZ Bank from dealing with various property. Messrs Merryweather and Hall did not lead evidence which would permit an apportionment of the costs of the Douglas Hawkins application between matters which have a connection with their appointment as Court-appointed receivers of the Homebush wine stock and other matters connected with their appointment by ANZ Bank as receivers to the relevant companies.
10. A third difficulty with that claim is that Messrs Merryweather and Hall, but also Rugama Trading Pty Ltd, JAG and ANZ Bank, subsequently issued a creditor's statutory demand to at least two of the corporate entities that brought that application, based on a judgment debt arising from an assessment of the costs of that application in the amount of $93,009.88. The form of that creditor's statutory demand made clear that the solicitors acting for Messrs Merryweather and Hall in that application also acted for the other entities, including the companies to which they were appointed receivers and ANZ Bank which had appointed them as receivers. In those circumstances, even if the costs of that application fell within the scope of the Varied Appointment Orders, it does not seem to me that those costs could fairly be attributed wholly or substantially to Messrs Merryweather and Hall, so as to be borne by investors in the Homebush wine stock, as distinct from the corporate entities or ANZ Bank for which those solicitors also acted. Messrs Merryweather and Hall also did not lead evidence which would support a proper allocation of costs as between those entities. I am not satisfied that the amount claimed in respect of the Douglas Hawkins application is properly recoverable under the Varied Appointment Orders and the amount allowable to Messrs Merryweather and Hall should be adjusted to exclude it.
11. Each of these applications extends to estimated costs, disbursements and expenses. I am satisfied that course is appropriate, because it would be undesirable if the parties were required further to approach the Court, and to incur further legal costs and hearing time in a further approval application, once those estimated costs, disbursements and expenses have been incurred. I am satisfied that the amounts claimed for such estimated costs, disbursements and expenses are reasonable and should be allowed under the Varied Appointment Orders.

Paragraph 7(d) of the Varied Appointment Orders - remuneration

1. The fourth category in paragraph 7(d) of the Varied Appointment Orders relates to remuneration of the insolvency practitioners.
2. This category includes the Court approved remuneration of Messrs Fraser and Honey. The reference to their remuneration was there directed to their remuneration from the point of their appointment as Court appointed receivers, and properly the subject of a claim to a lien upon the wine stock, as distinct from remuneration properly attributable to their role as liquidators of WIS. Messrs Fraser and Honey claim remuneration in the amount of $461,369 in respect of the work streams identified in paragraphs 7(a), 7(b) and 7(c)(iii) of the Varied Appointment Orders, namely the sale of the wine, The Court applications and the preservation, investigation and adjudication of competing claims (Fraser 19.10.15 [10]). The amount of remuneration claimed by Messrs Fraser and Honey referable to work within category 7(a) of the Varied Appointment Orders in respect of the sale of the wine is limited in the amount of $1,631. I am satisfied that remuneration is properly claimed and should be allowed pursuant to the Varied Appointment Orders. The amount of remuneration claimed by Messrs Fraser and Honey within category 7(b) of the Varied Appointment Orders, in respect of this application, including the orders sought in respect of the appointment of one practitioner and to approve the recovery charge and remuneration is more substantial, being $84,856. Messrs Fraser and Honey also claim the amount of up to $4,470 in estimated remuneration in respect of the application relating to their remuneration (Fraser 19.10.15 [16]). I am satisfied that remuneration is properly claimed and should be allowed, subject to the adjustment in respect of the Douglas Hawkins application noted below.
3. Messrs Fraser and Honey also claim remuneration within this category referable to review of the Interlocutory Application and affidavits filed by Douglas Hawkins and liaising with parties involved in the Douglas Hawkins application. As I noted above, that application was brought at the time that Messrs Fraser and Honey were liquidators to WIS, and had not then been appointed as receivers to the relevant wine, and it seems to me that their work done was undertaken in their capacity as liquidators of WIS and did not have a nexus with the preservation of the wine, or investigation or adjudication of claims upon it, such as to properly fall within the Varied Appointment Orders. Accordingly, Messrs Fraser's and Honey's claim for remuneration in respect of the Douglas Hawkins application should be excluded from the amount recoverable by Messrs Fraser and Honey pursuant to paragraph 7(d) of the Varied Appointment Orders, consistent with other statutory and related matters in respect of their appointment as liquidators of WIS.
4. The amount of remuneration claimed by Messrs Fraser and Honey referable to work within paragraph 7(c) of the Varied Appointment Orders, the costs of preserving, investigating and adjudicating upon competing claims to the wine is substantial, being $374,882. The work done within that category was extensive, including implementing the insurance cover for the wine, undertaking a stocktake of the wine, work done in respect of WIS's wine administration system to seek to identify claimants to the wine; dealing with proofs of debt to the wine; and ongoing communication with claimants to the wine. I am satisfied that that work was reasonably done and the remuneration for it is reasonably claimed and is properly recoverable under the Varied Appointment Orders. Messrs Fraser and Honey also claim the amount of $36,135 in remuneration in attending to statutory and other related matters concerning finalisation of their appointment as receivers of the Homebush wine stock and Denman wine stock (19.10.15 Fraser [10]). (The amount of $374,882 referred to above, together with the amounts of $1,631 and $84,556 referred to in paragraph 53, totals the figure of $461,369 referred to in paragraph 53 and, with the addition of the further amount of $36,135 referred to above, totals the amount of $497,504 referred to in paragraph 44.) I am satisfied that the amount of remuneration claimed for this work is reasonable and is properly recoverable under the Varied Appointment Orders.
5. Messrs Fraser and Honey also claim the amount of up to $45,031 in estimated remuneration of selling the remaining wine and of making payments to any claimants upon that wine (Fraser 19.10.15 [16]) and up to $6,464 in estimated remuneration concerning finalisation of their appointment as receivers of the Homebush wine stock and Denman wine stock (Fraser 19.10.15 [16], [18]). I am also satisfied that the estimates of future remuneration by Messrs Fraser and Honey are reasonable, and that it is proper for the Court to approve that remuneration, for the purposes of the Varied Appointment Orders, on the basis of those estimates, in order to avoid the further legal costs that would be involved in several parties making a further application to the Court in respect of that remuneration.
6. This category also includes the Court approved remuneration (as distinct from costs and expenses) of Messrs Cussen and Strawbridge in preserving, investigating and adjudicating competing claims to the Denman wine stock. Messrs Cussen and Strawbridge claim the amount of $90,650, exclusive of GST, in remuneration in respect of those matters (N Cussen 19.10.15 [35], [38], [40], [45]). It seems to me that the remuneration of Messrs Cussen and Strawbridge in the initial application for their Court-appointed receivers falls within the scope of the Varied Appointment Orders, for the same reasons that the costs, disbursements and expenses of that application fall within paragraph 7(c)(i) of those orders. Mr Neil Cussen leads evidence of the breakdown in that remuneration, as to $40,215 for reviewing investor claims against stock against the wine administration system and organising removal of the wine when Messrs Fraser and Honey were appointed as receivers to both sets of the wine; $24,979 for correspondence with investors; $18,149 for correspondence with their legal advisers; and $7,308 for general administration, correspondence with Messrs Fraser and Honey and attending creditors meetings of WIS. Mr Cussen provides a description of the categories of work at paragraph 36 of his affidavit and detailed summaries at annexures A - D and expresses the view (N Cussen 19.10.15 [38(e)]) that the remuneration, costs and expenses were necessary, proper and reasonable. I am satisfied that the amount of remuneration claimed for this work is reasonable and is properly recoverable under the Varied Appointment Orders.
7. This category also includes the Court approved remuneration (again, as distinct from costs and expenses) of Messrs Merryweather and Hall in preserving the Homebush wine stock. Messrs Merryweather and Hall claim the amount of $43,105 in remuneration in preserving the Homebush wine stock (Merryweather 19.10.15 [11(c)], [13]). I am satisfied that the amount of remuneration claimed for this work is reasonable and is properly recoverable under the Varied Appointment Orders.

GST

1. The insolvency practitioners accepted, in the course of the application before me, that it was appropriate that all orders be made on a GST exclusive basis, and that a further order be made that provided that the applicants are justified in making the relevant payments together with GST or other statutory charges as may be properly payable or applied, other than where there is a GST input tax credit available in respect of GST paid. The availability of such a credit may be of particular significance so far as, for example, the receivers have paid GST on services obtained, in circumstances that an input tax credit may be available in respect of that GST.

Orders

1. The parties should bring in short minutes of order to give effect to this judgment within 14 days.

Amendments 08 February 2016 - Paragraph 44 - line 2 - Amend "costs of work" to "time costs of work totalling $497,509, made up of the amounts of $461,369 and $36,135 referred to in paragraphs 53 and 55 below. They distinguished work". Paragraph 44 - line 15 - change "costs" to "time costs". Paragraph 44 - line 18 - change "costs" to "time costs". Paragraph 44 - line 19 - change "costs" to "time costs". Paragraph 44 - line 21 - change "7(c)(iii)" to "7(d)". Paragraph 44 - end of paragraph add: "I return to this question in paragraph 55 below". Paragraph 55 - line 14 - add before the last sentence: "(The amount of $374,882 referred to above, together with the amounts of $1,631 and $84,556 referred to in paragraph 53, totals the figure of $461,369 referred to in paragraph 53 and, with the addition of the further amount of $36,135 referred to above, totals the amount of $497,504 referred to in paragraph 44.) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 February 2016