Australian Securities and Investments Commission v Letten

1. The amounts specified in Annexure 3 to this order, as the Receivers' interim remuneration for the period 25 February 2010 to 2 July 2010 (the Relevant Period), are approved for payment to the Receivers on an interim basis. 2. The Receivers are justified in allocating their remuneration, costs and expenses for the Relevant Period as follows: (a) as to their remuneration, costs and expenses for "miscellaneous work" (as described in paragraphs 32 to 46 of the Twentieth Affidavit) - to be allocated as set out in paragraphs 47 to 55 of the Twentieth Affidavit; (b) as to their remuneration, costs and expenses for work related to LGHA (as described in paragraphs 61 to 82 of the Twentieth Affidavit) - to be allocated as set out in paragraphs 83 to 86 of the Twentieth Affidavit; (c) as to the Receivers' legal costs for "general" and LGH related work (as specified in paragraph 797(a) of the Twentieth Affidavit) - to be allocated equally to each Scheme, as set out in paragraph 801 of the Twentieth Affidavit. 3. Until further order, upon the drawdown of any funds for the purposes of payment of the Receivers' interim remuneration, costs and expenses, the Receivers are to file with the Court a Certificate in accordance with the form at Annexure 1 to these orders. 4. Subject to further direction, a Registrar of the Court review and fix the remuneration to which the Receivers are properly entitled and the costs and expenses they properly incurred in the performance of their duties and the exercise of their powers as Court appointed receivers and managers of each of the entities and schemes to which they were appointed receivers and managers by the Appointment Order and the SY21 Appointment Order for the period from 25 February 2010 to 2 July 2010 (the relevant period). 5. By no later than 4 pm on 22 December 2010 the Receivers are to serve upon all investors identified by the Receivers to be investors in any of the Schemes (Investors): (a) a copy of these orders; (b) a circular: (i) advising the Investors of the Remuneration Application; (ii) informing them that by no later than 14 February 2011 (the Objection Period) any Investor may file and serve a notice in writing identifying any of the Receivers' claims for remuneration, costs and expenses to which they object, together with a short but specific statement outlining the nature and grounds of the objection and the amount (if any) they say is claimable; (iii) informing them that a copy of the Remuneration Application and affidavit material filed in support of the Remuneration Application are available on the secure section of the Investors' website (www.kpmg.com.au/lettenschemes). (c) a copy of the Remuneration Application; (d) a copy of each affidavit and submissions filed in support of the Remuneration Application, together with the exhibits thereto. 6. Service for the purposes of paragraph 5 may be effected: (a) in the case of paragraph 5(a) and 5(b): (i) by email in respect of Investors who have notified the Receivers that email is their preferred method of communication; and
   (ii) otherwise by ordinary post; and (b) in the case of paragraphs 5(c) and 5(d), by making copies of the documents available on the secure section of the Investors' website (www.kpmg.com.au/lettenschemes).
2. The Secured Lender, any other party and any Investor who wishes to shall file and serve by 14 February 2011 a notice in writing identifying any of the Receivers' claims for remuneration, costs or expenses to which they object, together with a short but specific statement outlining the nature and grounds of the objection and the amount (if any) they say is claimable in the form of Annexure 2 to these Orders.
3. As soon as reasonably practicable after the expiration of the Objection Period, the Registrar will advise the Receivers if the Registrar requires further information to fix the remuneration, costs and expenses for the relevant period and copies of any such further information provided to the Registrar will also be provided to the Secured Lenders and ASIC.
4. If the Registrar requests further information to fix the remuneration, costs and expenses, the Receivers will provide such further information within 7 days of receipt of the Registrar's request.
5. As soon as reasonably practicable after receipt of the further information referred to in paragraph 8, the Registrar is to fix the Receivers' remuneration, costs and expenses for the relevant period and deliver short written reasons for his or her determination.
6. The Receivers, any other party, the Secured Lender and any Investor may apply to the Court to review the Registrar's determination and the Court may review the Registrar's determination and fix the remuneration, costs and expenses of the Receivers for the relevant period.
7. Costs reserved.

ANNEXURE 1 Certificate in respect of the Remuneration Application. Filed in Victoria District Registry IN THE MATTER OF MARK RONALD LETTEN & OTHERS No. VID 95 of 2010 To: The Registrar Federal Court of Australia Victoria District Registry 305 William Street Melbourne VIC 3000 Fax: (03) 8600 3351 NOTE: For the purpose of this Certificate: (a) "Receivers", "Scheme" and "Property" have the meanings ascribed to those terms in the Orders of Justice Gordon made in this proceeding on 25 February 2010 and 4 March 2010; and (b) "Remuneration Application" means the application of the Receivers by interlocutory process dated 30 November 2010 for approval of their remuneration and expenses in respect of the period 25 February 2010 to 2 July 2010. On [insert date] the amount of [insert amount] was paid to the Receivers from Scheme Property in connection with the [specify scheme] as interim remuneration (including costs and expenses). In accordance with the Orders of Justice Gordon dated 20 December 2010, the Receivers certify as follows: A. Applicable where the interim payment has been made at a time when there remains a shortfall of monies due to the Secured Lender. □ The Receivers and the Secured Lender have agreed that the above interim payment of remuneration (including costs and expenses) is appropriate. B. In all cases The above interim payment is consistent with those orders. Signed: ………………………… Date: ……………………….. Damian John Templeton/Philip Hennessy ANNEXURE 2 Notice of submission in respect of the Remuneration Application. Filed in Victoria District Registry IN THE MATTER OF MARK RONALD LETTEN & OTHERS No. VID 95 of 2010 To: The Registrar Federal Court of Australia Victoria District Registry 305 William Street Melbourne VIC 3000 Fax: (03) 8600 3351 I, __________________________________________, wish to make objection in respect of the Remuneration Application regarding the Schemes, in which I am an investor: (specify schemes here) I object to the following claims for remuneration and expenses: (specify the claims objected to here. Attach additional pages as necessary) The details of my objection are: [Set out in the space below the nature and grounds for each objection and the amount (if any) which you say is properly claimable. Attach additional pages as necessary]: Signed: ________________________________ Name: ________________________________ Address: ________________________________ Phone no: ________________________________ Email address: ________________________________ Date: ________________________________

SCHEDULE OF COSTS AND EXPENSES INCURRED BY THE RECEIVERS AND 85% OF COSTS AND EXPENSES INCURRED Scheme($ excluding GST) Costs and expenses incurred Interim remuneration (85% of costs and expenses incurred) YVG $1,833,392.41 $1,558,383.55 GLENBELLE $685,635.12 $582,789.85 REEF HOUSE $725,781.52 $616,914.29 TWINVIEW NOMINEES $251,184.14 $213,506.51 THE GLEN CENTRE $289,349.86 $245, 947.38 NICHOLSON STREET $267,612.86 $227,470.93 CIMITIERE HOUSE $286,132.48 $243,212.61 GEORGE STREET $162,709.07 $138,302.71 LOW HEAD $282,063.26 $239,753.77

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 95 of 2010

BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

JUDGE: GORDON J DATE: 22 December 2010 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is the ninth judgment in a series about unregistered managed investment schemes in which Mr Mark Ronald Letten (Mr Letten), the first defendant, has been involved. The history of the proceedings were most recently summarised in Australian Securities and Investments Commission v Letten (No 7) [2010] FCA 1231 at [7] to [12]. I adopt the same terms and abbreviations in these reasons for judgment. 2 This judgment concerns the remuneration of the Receivers for the period from the date of their first appointment (25 February 2010) up to and including 2 July 2010. The Receivers seek payment of 85% of their claim for remuneration for the period from 25 February 2010 up to and including 2 July 2010. The claim is an interim claim in two respects - first, the work is not complete and secondly, the Receivers propose that they be entitled to immediate payment of 85% of their remuneration on the basis that if after a formal taxation of their costs by a Registrar of the Federal Court, their entitlement to remuneration is less than 85% of the amount claimed, the Receivers and their firm, KPMG, will repay the difference with interest at a rate to be determined by the Court. 3 For the reasons that follow, I would grant the Receivers the orders that they seek.

Procedural history 4 By paragraph 20 of the Appointment Order and paragraph 15 of the SY21 Appointment Order, the Court ordered, inter alia, that: 1. the Receivers shall be entitled to reasonable remuneration and reasonable costs and expenses properly incurred in the performance of their duties and the exercise of their powers as receivers and managers over the Property of each Scheme, as may be fixed by the Court on the application of the Receivers; 2. the Receivers' remuneration is to be calculated on the basis of the time reasonably spent by the receivers and managers, their partners and staff, at the rates specified in Annexure B to the Appointment Order; 3. the Receivers' remuneration is to be paid out of the assets of the Scheme, provided that the Receivers' remuneration and reasonable costs and expenses must not be paid in priority to any debt the payment of which is secured by the Property of the Scheme (including by any floating charge) without the consent in writing of the relevant Secured Lender; and 4. the above orders were not to affect the rights of any prior encumbrances of the Property of the Schemes or the Property of the defendants, including the rights of any Secured Lender. 5 On 11 November 2010, the Court directed, inter alia, that the Receivers were justified in paying the following amounts out of the proceeds of sale of each asset of the Schemes and the Corporate Defendants, in the following order of priority: 1. priority receivership costs, as fixed by the Court, to the Receivers; 2. any liabilities which are secured by that asset, to the relevant Secured Lender; 3. the amount of trust creditor claims in respect of the relevant Corporate Defendant (if any) in respect of which the relevant Corporate Defendant has a right of indemnity and lien, to the relevant Corporate Defendant; and 4. the balance (if any) into a bank account held in the name of the Receivers and designated as the "Common Fund" account (the Common Fund). These orders will be referred to as the "Pooling Orders".

Proposed Remuneration Orders 6 There are in fact two groups of costs - "Priority Costs" and "Non-Priority Costs". "Priority Costs" were defined in a Deed of Priority between the Receivers and Westpac dated 27 May 2010. In general terms, Priority Costs relate to the Receivers' fees and expenses incurred in connection with the preservation and realisation of property of a Scheme. 7 "Non-Priority Costs" comprise the balance of the fees and expenses of the Receivers not provided for in the Deed of Priority. For example, these fees would include such expenses as the bulk of the Receivers' costs and expenses relating to the various investigations and preparation of disclosure reports for the Court. Under the Pooling Orders (see [5] above), the Non-Priority Costs rank first in priority in the Common Fund. The Receivers did not seek directions from the Court as to any allocation as between Priority and Non-Priority Costs.

Effect of the proposed remuneration orders 8 The intended effect of the Remuneration Orders proposed by the Receivers (the Proposed Remuneration Orders) is: 1. to set up a regime to enable a Registrar to fix the appropriate amount of the Receiver's total costs (for the period 25 February 2010 to 2 July 2010); and 2. in the interim, to allow the Receivers to obtain payment of 85% of their remuneration, costs and expenses (in respect of the same period) from the available assets of applicable Schemes. 9 The Receivers informed the Court that they propose to make similar applications in respect of periods after 2 July 2010. 10 As a result of the Pooling Orders and the Proposed Remuneration Orders: 1. The Receivers would recover on an interim basis 85% of their Priority Costs referable to any particular Scheme out of the proceeds of sale of that particular Scheme's property (i.e. from proceeds received at completion or from non-refundable deposits paid by purchasers) or surplus cashflow generated by that Scheme's property after the payment of all costs necessary to preserve the property (subject to the Secured Lender's consent). 2. The Receivers would not recover any of their Non-Priority Costs until the Common Fund is established (i.e. after creditors of the relevant trustee companies are determined following the making of winding-up orders for the relevant trustee companies). 3. In the interim, a taxation of their costs before a Registrar of the Federal Court, and subsequent determination of objections by the Court, would proceed on the basis that: 3.1 if any amounts recovered by the Receivers (i.e. the 85%) were greater than the amount determined by the Registrar and any subsequent determination by the Court, the Receivers would refund the relevant trustee company, Secured Creditor or the Common Fund (as the case may be) together with interest at a rate to be determined by the Court; and 3.2 if the Court determined that the Receivers were entitled to recover some or all of the additional 15%, then they could do so after the Court had considered the full claim by the Receivers.

Analysis 11 Two questions arise - (1) should the Receivers be entitled to immediate payment of their remuneration, costs and expenses on an interim basis and (2) if so, is 85% the appropriate percentage and what other safeguards should be put in place.

Entitled to payment on an interim basis? 12 There is little doubt that the Receivers and their legal advisors have undertaken a significant amount of work since their appointment on 25 February 2010 without payment. The issues that have arisen and continue to arise are not straight forward: see, by way of example, Letten (No 7) at [7] to [21]. The task is not complete and is unlikely to be so in the near future. In my view, it is appropriate that the Receivers be entitled to immediate payment of their remuneration, costs and expenses on an interim basis. Having said that, the fact of the matter is that at present, there are only four schemes where asset sales or operations have provided any funds from which the Receivers could receive payment: see Annexure 2 to the Orders. That position may, of course, change. 13 The Court's power to make the Proposed Remuneration Orders was not in issue. In my view, the source of the power includes s 601EE of the Corporations Act in relation to the Schemes and the Court's inherent power to control Receivers appointed by the Court: Letten (No 7) at [269] to [271] and Australian Securities and Investments Commission v Atlantic 3 Financial (Aust) Pty Ltd (No 3) [2004] 1 Qd R 591; Australian Securities and Investments Commission v Carey (No 5) (2006) 58 ACSR 6 at [13] to [24]; Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 204.

Safeguards 14 Any order authorising the Receivers to be entitled to immediate payment of their remuneration, costs and expenses on an interim basis must be subject to certain safeguards. In the present case, the appropriate safeguards are: 1. each time an interim drawing is made, the Receivers will file and serve a certificate confirming that the drawing is consistent with the orders allowing for the interim payment. The text of the certificate will require the Receivers to identify the Scheme and the amount paid to the Receivers from Scheme Property in connection with the Scheme as interim remuneration (including costs and expenses); 2. a Registrar of the Court must review and fix the remuneration to which the Receivers are properly entitled and the costs and expenses they properly incurred in the performance of their duties and the exercise of their powers as Court appointed receivers and managers of each of the entities and schemes to which they were appointed receivers and managers by the Appointment Order and the SY21 Appointment Order for the period from 25 February 2010 to 2 July 2010; 3. prior to any review of the remuneration claim by a Registrar of the Court, the Secured Lender, any other party and any Investor may file and serve a notice in writing identifying any of the Receivers' claims for remuneration, costs or expenses to which they object, together with a short but specific statement outlining the nature and grounds of the objection and the amount (if any) they say is claimable in a specified form; 4. the Receivers, any other party, the Secured Lender and any Investor may apply to the Court to review the Registrar's determination and the Court may review the Registrar's determination and fix the remuneration, costs and expenses of the Receivers for the relevant period; 5. the Receivers and their firm, KPMG, must provide an undertaking to repay any overpayments (including interest) if the amount determined by the Registrar (or the Court on reviewing the Registrar's determination) is ultimately less than 85% of the amount claimed and paid on an interim basis. Initially the undertaking proffered was limited to the Receivers. However, at the suggestion of the Court, a similar undertaking was proffered from KPMG, the Receivers' firm. In my view, that was appropriate: cf Re Clynton Court Pty Ltd (subject to a deed of company arrangement); Korda v The J Aron Corporation (2005) 53 ACSR 432 at [21]. If the overpayment is in respect of property where there exists a Secured Lender which is still owed secured monies, then the repayment would go to that Secured Lender. In all other cases, the overpayment will be made back to the bank account from which the interim payment was made, to be subsequently dealt with in accordance with the Pooling Orders. In my view, those safeguards adequately protect the interests of the other stakeholders. Notice of the interim remuneration application was filed and served. ASIC and Mr Letten appeared at the hearing of the application and did not oppose the Orders sought.

Percentage? 15 The remaining issue was the percentage of the remuneration claim that the Receivers should be entitled to receive on an interim basis. The Receivers submitted, and I accept, that 85% is appropriate. There is no doubt that figure is arbitrary. In the present case, a number of facts and matters were important in accepting the Receivers' contention that 85% was appropriate. First, the rates to be charged by the Receivers and their staff were agreed on their appointment. Of course, whether the work ultimately carried out was appropriate to be charged by the Receivers is a matter for the Registrar including, but not limited to, charge out rate and quantum. 16 Secondly, the Receivers informed the Court that they and their legal advisers had discounted the fees claimed by 10%. Again, whether that ultimately is a relevant consideration is a matter for the Registrar (and any subsequent Court review of the Registrar's determination). 17 Finally, as Finkelstein J said in Re Clynton Court at [21], fixing interim remuneration requires a broad brush approach because any excess will be recouped and that in most cases, a Court will be justified in awarding interim remuneration in the order of 80-85% of the fees claimed. I have selected the higher end of that scale for the reasons set out in [11] to [16] above.

Conclusion 18 It is for those reasons that I granted the Receivers the orders that they sought. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.