Australian Securities and Investments Commission v Letten

background 4 It is useful to set out some further facts by way of background before turning to the application for review. 5 The numerous court decisions attest to the significant issues and difficulties faced by the Receivers in the receivership as a consequence of the way in which the schemes had been conducted. One of the issues was whether the Receivers were justified in pooling the assets of the Schemes and the Corporate Defendants by first paying certain amounts out of the proceeds of sale of the assets of the Schemes and the Corporate Defendants and then placing any surplus into a Common Fund for distribution rateably between claimants who have a claim. In Australian Securities and Investments Commission v Letten (No. 7) (2010) 190 FCR 59; [2010] FCA 1231, the Court made the pooling orders sought by the Receivers. Those orders were made on 11 November 2010. They included an order for the purposes of enabling the Receivers to make distributions out of the Common Fund. The Receivers were to conduct a proof of claim process, which to the extent practicable conformed with (and was governed by the rules and regulations applicable to) the proof of debt or claim process applicable in a liquidation, and pursuant to which the existence and value of claims would be finally determined by the Receivers, subject to all rights of appeal to the Court (including pursuant to s 1321 of the Act). 6 The Receivers commenced the proof of claim process in April 2012 (during the third period). Several other issues also arose in the third period concerning the distribution of the Common Fund requiring determination by the Court, including with respect to the adjudication of investor claims. A number of those issues were dealt with in Australian Securities and Investments Commission v Letten (No. 20) (2012) 92 ACSR 630; [2012] FCA 1283. The Receivers commenced adjudicating investor claims in late November 2012 and an interim distribution was made in May 2013. A significant amount of the work done in the third period related to the proof of claims process.

The claim for remuneration costs and expenses for the third period 7 The Receivers' claimed remuneration, costs and expenses for the third period totalled $4,309,813.79 and comprised as follows: Item Claimed Receivers' remuneration other than for the "Investors/Distribution" category for the Letten Common Fund $929,974.95 Receivers' remuneration for the "Investors/Distribution" category for the Letten Common Fund $2,379,264.75 Receivers' Disbursements $10,223.04 Legal Fees $888,502.05 Legal Disbursements $101,849.00 Total $4,309,813.79

8 The Receivers' claim includes a voluntary reduction of 10% in the remuneration of the Receivers and the professional costs of their solicitors.

the issues 9 Although this is a hearing de novo, there have been three prior decisions on the third period claim. In the application for review before the primary judge, independent assisting counsel was appointed to act as a contradictor to the Receivers' application. The primary judge noted that his participation in the hearing assisted in the proper identification and resolution of the issues. Both parties were also represented on appeal. This gives the Court on the remittal of the application for review a measure of comfort that the areas of controversy concerning the Receivers' claim have been fully identified. In addition, Mr Templeton has filed further evidence providing much greater detail for the Court than was available before the Registrar. Accordingly, I propose to confine the re-consideration of the Receivers' claim to the same matters that were considered by the primary judge: see Templeton v Australian Securities and Investments Commission (2015) 108 ACSR 545; [2015] FCAFC 137at [18] and [19]. 10 Those issues are as follows: (a) whether a reduction in the remuneration claimed for the category of work described as "Investors/Distribution" is justified; (b) whether a reduction in the remuneration claimed for the other categories of work is justified; (c) whether a reduction in the disbursements claimed is justified; (d) whether a reduction in the legal fees claimed is justified.

Whether a reduction in the remuneration claimed is justified 11 The Registrar concluded that a 20% reduction relating to remuneration in the "Investors/Distribution Category" of the Letten Common Fund and a 5% reduction on the remainder of the Receivers' claim for remuneration were justified. The primary judge agreed. The factors taken into consideration by the primary judge included: (a) the amount of time spent adjudicating investor claims; (b) the length of time taken for the proof of claim process to commence; (c) the proportionality of the remuneration claimed to the distribution actually made to investors; and (d) the lack of sufficient evidence to substantiate that the amounts charged were reasonably incurred. 12 The primary judge also held that there was no identifiable error in the approach of the Registrar applying the reductions to the discounted claim.

The Full Court decision 13 On appeal to the Full Court it was argued for the Receivers that the primary judge, amongst other things: (a) was not entitled to consider the concept of proportionality in fixing the remuneration; (b) made various errors in how she applied the concept of proportionality; (c) erred in seeking partly to justify the 20% reduction based upon the delay in the proof of claim process; (d) inappropriately applied a discount by reference to the absence of evidence that the adjudication process adopted was the most efficient; (e) should have made specific findings as to what work she found necessary and appropriate to have been done by the Receivers, including at an appropriate rate of seniority rather than making a broad based reduction of the total amount claimed by the Receivers; and (f) failed properly to consider and give sufficient weight to the fact that the Receivers had voluntarily reduced their claim for remuneration by 10%. 14 The Full Court rejected (a), (e), and (f) but held that the other contentions had some force. The reasons in summary were as follows. 15 The Full Court stated that the onus was on the Receivers to justify the reasonableness and prudence of the tasks undertaken. The Court is not obliged to make specific positive findings about the work necessary and appropriate to be done, the appropriate level of seniority and whether the work was done efficiently. The Court is entitled to take the practical course of looking at the matter more generally in assessing reasonableness and then applying, if thought necessary, any appropriate discounts. The Court observed at [60] that it is neither sensible nor cost effective for the Court, on reviewing the remuneration claimed, to proceed by some line by line analysis using some building blocks or bottom up approach to build up an amount which the Court then determines to be reasonable remuneration based upon detailed findings concerning those matters. The Full Court held at [60] that it was appropriate to take a broad approach and appropriately discount, without making any specific findings. The Full Court was critical of the primary judge for applying an overall discount without identifying the effect that specific issues had on the overall outcome. 16 The Full Court confirmed that the question of proportionality is a well-recognised and an important factor in considering the question of the reasonableness of the remuneration claimed but held that the primary judge had fallen into error in applying the concept. At [30]-[34], the Full Court stated: Generally, the language of the Orders, and the context in which they were made, permit of proportionality being considered in order to assess the question of reasonable remuneration. Indeed, the question of proportionality is an anterior question to consider in order to determine whether time was reasonably spent. If the relevant work plan underpinning the actual time spent and the allocation of personnel at the requisite level of seniority was disproportionate to the nature, importance and complexity of the task and the benefit to be achieved from the task, then it might be said that the time spent on the task was not time reasonably spent. The question of proportionality is a well recognised factor in considering the question of reasonableness. As the analogue of s 425(8) and like provisions expressly state, in having "regard to whether the remuneration is reasonable", the Court can take into account, inter alia, the quality and complexity of the work and the value and nature of any property dealt with as well as the question of time reasonably spent. Generally, an amalgam of the factors in s 425(8)(d), (e), (g) and (h) have as their unifying theme the concept of proportionality. The question of proportionality in terms of the work done as compared with the size of the property or activity the subject of the insolvency administration or the benefit or gain to be obtained from the work is an important consideration in determining overall reasonableness: see In the matter of AAA Financial Intelligence Ltd (in liquidation) [2014] NSWSC 1004 at [18] and [19] per Brereton J, In the matter of AAA Financial Intelligence Ltd (in liquidation) (No 2) [2014] NSWSC 1270 at [35], [36], [43] and [45] per Brereton J, Mirror Group Newspapers plc v Maxwell [1998] 1 BCLC 638 at 645, 651, 652 per Ferris J (also reported at [1998] BCC 324), In the matter of On Q Group Ltd (in liquidation) [2014] NSWSC 1428 at [20] per Brereton J, Bank of Nova Scotia v Diemer [2014] ONCA 851 at [33], [45], [55] and [56] per Pepall JA, Re Roslea Path Ltd (in liquidation) [2013] 1 NZLR 207 at [108], [115] and [121] per Heath and Venning JJ, Brook v Reed [2012] 1 WLR 419 at [51], [86] and [87] per Richards J, referring to the relevant 2004 UK Practice Statement [2004] BCC 912, Re Korda; in the matter of Stockford Ltd (2004) 140 FCR 424 at [47] per Finkelstein J, although we do not endorse his Honour's obiter observations on the "lodestar" methodology as being the required approach as distinct from merely one practical way to proceed in a particular case. Generally, in looking at proportionality, the value of the services rendered must be considered. We would endorse the observations of McLure JA in Conlan as liquidator of Rowena Nominees Pty Ltd (in liquidation) v Adams (2008) 65 ACSR 521 at [47] where her Honour observed: As to the performance of a task reasonably embarked upon, the work done must be proportionate to the difficulty or 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. Using an example from the law, the time spent by an appropriately qualified and experienced practitioner in drafting a statement of claim should be proportionate to the amount in issue. Finally, even if one was not to address proportionality as an express factor, nevertheless its absence may have forensic significance in determining reasonableness. Another way to look at proportionality can be to conclude from a lack of proportionality between the cost of the work done relative to the value of the services provided that there has been overcharging or excessive remuneration claimed (see Thackray v Gunns Plantations Ltd (2011) 85 ACSR 144 at [64] per Davies J). At [50]-[53], the Full Court emphasised, however, that the proportionality analysis requires a comparison of "like with like". 17 The Full Court considered that the primary judge had not made a like with like comparison. At [48]-[49], the Full Court stated: First, her Honour considered the value of the "Investors / Distribution" work in relation to the amount distributed of $6.1m and the amount to be distributed of $4.8m, totalling $10.9m. There is no difficulty with this. But in doing so, the comparator ought to have been the remuneration for work done in that category. Her Honour compared the amounts distributed or to be distributed with the "present claim, for over $4 million". But the true comparator was the amount claimed for this category of work, being $2,369,274.50, alternatively that amount together with the previous remuneration claimed and allowed for that category of work. Second, her Honour referred to the Receivers also having received about $14.2m. But that amount was in large part for remuneration done in relation to the secured creditors. It was not comparing like with like in looking at the proportionality for the remuneration claim in respect of the "Investors / Distribution" category. Now one could have looked at the total remuneration claim for work done in all categories as compared with the value of the work in all categories, but then the true comparator to the $14.2m would not just have been the $10.9m amount concerning distributions to investors, but would also need to have taken into account the value achieved or ascribed to the work undertaken concerning the secured creditors, which realised $92m. 18 At [50] the Full Court set out what it considered to be an appropriate proportionality analysis as follows: For completeness, we should say that there is one submission of the appellants that we reject. It was said that in looking at the proportionality of the claim concerning the "Investors / Distribution" category, that the benefit of $10.9m should be assessed only against the $2.369m then claimed, without looking at the previous remuneration claimed for work in that category (this appears to have been $3.6m (T 24.45)). We would reject that contention. In our view, an appropriate proportionality analysis with respect to that category of work could properly consider either: (a) the total value of that work with the total remuneration claimed for that work over the entire period; or (b) the value of work performed of that type over the Relevant Period with the remuneration claimed for that work over the Relevant Period. 19 The Full Court cautioned that it should nonetheless be borne in mind that in performing some work, it may not be entirely clear ahead of time what the precise benefit of the work might be so that it might be inappropriate to use a hindsight analysis of known returns after the event to assess whether the work was proportional to the task and in such a situation one would look at the expected realistic return at the time the work was performed rather than actual outcomes. The Full Court also stated that some work may be sufficiently complex and labour intensive such as to justify a high cost to benefit ratio. 20 The Full Court also held that the primary judge's reduction was not justified by delay. The Full Court noted the unchallenged evidence of Mr Templeton which explained the delay but also stated that no link was shown between the delay and any inflated remuneration claim or any inefficiency in the work performed. 21 The Full Court also held that the primary judge's reduction was not justified for inefficiency. The Full Court considered that it was not open on the evidence to say that the time spent was "too high" and there was no evidence of any other more efficient process that would have reduced the time taken. 22 The Full Court held that the primary judge, however, had not failed properly to consider and give sufficient weight to the fact that the Receivers had voluntarily reduced their claim for remuneration by 10%. The Full Court considered that the primary judge: (1) was entitled not to be satisfied that the 10% discount had proceeded from the real or actual claim as distinct from a notional arithmetical ambit claim based on time costing; (2) gave the 10% discount the weighting that was appropriate in light of the absence of detailed evidence about the review process; and (3) was entitled to commence her assessment of reasonableness using the starting point of the claim which had incorporated within it the 10% discount.

The Receivers' 10% discount 23 The Receivers have since filed additional evidence in support of their application for review, including further evidence about the processes of review of the time charging records of the Receivers and staff and the review of the whole claim by Mr Templeton. I am satisfied on the basis of this evidence that the discount of 10% which the Receivers applied in relation to their remuneration claimed was a discount from their true claim and not from a theoretical or ambit claim.

Proportionality 24 The Receivers also filed additional evidence which they contend is relevant to proportionality. 25 The evidence showed that total remuneration and disbursements claimed for the third period ($4.3 million) consists of: (a) remuneration and non-legal expenses attributable to the priority creditors - $0.40 million; (b) legal expenses attributable to the priority creditors - $0.45 million; (c) non-priority remuneration and non-legal expenses - $2.90 million; (d) non-priority legal expenses - $0.55 million. 26 The non-priority remuneration claimed in the third period of $2.9 million is broken up as follows: (a) cost of common fund asset recoveries - $0.25 million; (b) key court hearings - $0.15 million; (c) adjudication of claims - $2 million; (d) investor database collation and calling for proofs of claims - $0.25 million; (e) other - $0.25 million. 27 The amount of $2 million for adjudication of claims in the third period was said also to be almost the entirety of the adjudication cost over the whole of the receivership to date ($2.1 million). 28 The Full Court postulated, but did not determine, that the amount that had been distributed or was expected to be distributed was a possible proxy for the value of the work involved in the adjudication. In the Receivers' submission, a far more relevant proxy for that value is the amount realised for the benefit of investors less the costs (other than costs of adjudication and distribution) of that realisation. Based on the numbers provided by Mr Templeton, that proxy would be $17.6 million. Another comparison amount was said to be the total value of the admitted claims of investors after the Receivers' adjudication process. The total number of investor claims was approximately 1,400 which are comprised of up to 5,000 separate investments. Adopting the first proxy for value, the relevant proportion is that it cost $2.1 million ($2 million in the third period) to work out which investors had an interest in the fund of $17.6 million and in what proportions amongst them they held those interests. Adopting the second proxy for value, the relevant proportion is that it cost $2.1 million to adjudicate 1,400 claims comprised of approximately 5,000 separate investments with a total admitted net cash contribution of approximately $91.6 million. I accept that either proxy is a comparison of "like with like". 29 The next step in the consideration of proportionality identified by the Full Court is the identification of reasons which justify why the comparison which has been made justifies a specific reduction in the remuneration claimed. The Full Court found that there was no evidence to support the conclusion that the amount of time spent on adjudication was too high. The Full Court also pointed to the need to give sufficient consideration to the fact that "the Receivers' program of work was largely a function of the directions and orders of the Court and the complexity of the matter". I accept the submission for the Receivers that if this work was rendered necessary by the Court's orders, as it was, and there is no basis to conclude that an excessive time was taken to do it, as the Full Court found, then there is not a principled reason for concluding that the claimed remuneration for the work (discounted by 10% from the rate set by the Court in the appointment order) is unreasonable.

Narrations 30 The primary judge agreed with the Registrar that there was insufficient detailed information provided in the narrations for the Court to be satisfied that the work was necessary and the time spent reasonable. Since then the Receivers have provided a lot more information about the work that was undertaken and, as the Full Court stated, the Receivers' program of work was largely a function of the directions and orders of the Court and the complexity of the matters. The concerns expressed by the Registrar arising from the repetitions in the narratives and the brief and imprecise descriptions of the work done no longer have cogency.

Administrative work 31 The primary judge had considered that there was insufficient evidence before her to conclude that the amounts charged for administrative tasks were reasonably incurred and accordingly considered that a reduction in the Investors/Distribution category by the Registrar was justified. Mr Templeton has since provided more detail about the administrative tasks and the decisions taken by the Receivers about the use of senior analysists. In Thackray v Gunns Plantations Ltd (2011) 85 ACSR 144; [2011] VSC 380, at [207] the Court took account of the blended average charge out rate as a measure of the overall level within the firm at which the work was done. In the present case, the evidence disclosed that for the common fund category, the blended average was $278.65 per hour. For the next two largest categories, the blended rates were $305.99 and $295.29 respectively. These calculations indicate that the overwhelming preponderance of the work done was done by staff at or below the level of assistant manager. In view of this additional evidence, I am satisfied that this issue has now fallen away.

Subpoenas 32 The primary judge also considered that a discount was warranted by reason that the Receivers should not have their costs for work done in responding to subpoenas issued by Mr Letten in connection with various proceedings. The Receivers had not made an application for the costs of complying with the subpoenas and no orders were made, and the primary judge considered that the Receivers were not justified in not pursuing the costs of the subpoenas. The primary judge thus disallowed the remuneration claimed in respect of those subpoenas. Mr Templeton has since supplemented his evidence as to why costs were not pursued. I am satisfied on the basis of that evidence that Mr Templeton has established reasonable grounds for a belief that any attempted recovery of the subpoena costs would have been ineffectual and the Receivers should not in those circumstances be deprived of all or part of their remuneration for their work in relation to the subpoenas.

Hotline 33 The primary judge did not accept the Registrar's criticism of the existence of an "investor hotline". Her Honour noted that most large corporate collapses have utilised such a facility and, as a matter of public policy, it should not be discouraged. I agree.

Conclusion 34 No other basis has otherwise presented which would justify any further reduction in remuneration than the 10% voluntary reduction already factored in by the Receivers. Accordingly, I am not persuaded that any further discounts, beyond the voluntary discount of 10%, in respect of the Receivers' remuneration is justified.

whether a reduction in the disbursements claimed is justified 35 The particular issue here is whether a reduction in the legal fees claimed is justified. 36 First, costs of approximately $28,000 were incurred with respect to research. Mr Templeton has deposed that he was informed by King & Wood Mallesons, the solicitors, that the research was absolutely necessary. Noting that there has already been a 10% reduction in the legal fees, I consider there is sufficient evidence to conclude that the amounts charged for the research were reasonably incurred. 37 In addition, there was some $81,000 (after the 10% reduction) claimed with respect to advice on taxation matters. The charge out rates were shown to be much higher than with respect to the other legal work performed. It was submitted that Mr Templeton's evidence amply demonstrated why he is justified in accepting and paying the higher charge out rate for the taxation work that was carried out. Mr Templeton described the significant benefit the Receivers obtained from the work of the tax lawyers. The benefit was the avoidance of an outcome that could have resulted in a tax liability of up to $9 million. Based on this measure of the value of their work, the premium hourly rates were amply justified. I do not consider that a reduction in the claim for reimbursement of legal expenses is justified.

conclusion 38 In the circumstances, given that the Receivers have already applied a 10% reduction to their claim, I do not consider that any further reduction is justified on a principled basis. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.

Second Defendant: LGH HOLDINGS LIMITED (ACN 077 191 943) Third Defendant: 211 WELLINGTON ROAD PTY LTD (ACN 092 663 860) Fourth Defendant: BLUEMIST HOLDINGS PTY LTD (ACN 097 306 922) Fifth Defendant: DELLWOOD HOLDINGS PTY LTD (ACN 098 505 803) Sixth Defendant: ENMORE ENTERPRISES PTY LTD (ACN 082 158 487) Seventh Defendant: FIRBANK ARCH PTY LTD (ACN 059 464 381) Eighth Defendant: GLENLINE PTY LTD (ACN 098 532 364) Ninth Defendant: GERLING HOLDINGS PTY LTD (ACN 091 726 457) Tenth Defendant: LGH ADMINISTRATION PTY LTD (ACN 077 165 069) Eleventh Defendant: LGH FINANCE PTY LTD (ACN 078 859 248) Twelfth Defendant: LOW HEAD VILLAGE PTY LTD (ACN 091 731 958) Thirteenth Defendant: NICHOLSON STREET PTY LTD (ACN 069 104 089) Fourteenth Defendant: HOLLOWAY CREST PTY LTD (ACN 091 731 967) Fifteenth Defendant: ROSEBERY ENTERPRISES PTY LTD (ACN 091 826 229) Sixteenth Defendant: SIMMS INVESTMENTS PTY LTD (ACN 093 504 511) Seventeenth Defendant: SY21 RETAIL PTY LTD (ACN 107 874 564) Eighteenth Defendant: THE GLEN CENTRE HAWTHORN PTY LTD (ACN 089 906 543) Nineteenth Defendant: CASTELLO HOLDINGS PTY LTD (ACN 088 204 175) Twentieth Defendant: TWINVIEW NOMINEES PTY LTD (ACN 097 307 278) Twenty First Defendant: YARRA VALLEY GOLF PTY LTD (ACN 066 632 479) Twenty Second Defendant: ADINA RISE PTY LTD (ACN 083 181 122) Twenty Third Defendant: ALBRIGHT INVESTMENTS PTY LTD (ACN 088 204 166) Twenty Fourth Defendant: ASHFIELD RISE PTY LTD (ACN 093 504 806) Twenty Fifth Defendant: BRADFIELD CORPORATION PTY LTD (ACN 088 204 371) Twenty Sixth Defendant: COPELAND ENTERPRISES PTY LTD (ACN 093 504 824) Twenty Seventh Defendant: DEVLIN WAY PTY LTD (ACN 088 264 813) Twenty Eighth Defendant: FIRST HAZELWOOD PTY LTD (ACN 093 505 303) Twenty Ninth Defendant: GLENBELLE PTY LTD (ACN 097 306 646) Thirtieth Defendant: GLENVALE WAY PTY LTD (ACN 088 287 021) Thirty First Defendant: GREENVIEW LANE PTY LTD (ACN 093 505 312) Thirty Second Defendant: HALLMARK CORPORATION PTY LTD (ACN 083 180 812) Thirty Third Defendant: MOORLEIGH HOLDINGS PTY LTD (ACN 088 287 058) Thirty Fourth Defendant: NORTON RIDGE PTY LTD (ACN 078 821 066) Thirty Fifth Defendant: RALEIGH GLEN PTY LTD (ACN 088 204 380) Thirty Sixth Defendant: REDCREST HOLDINGS PTY LTD (ACN 100 836 486) Thirty Seventh Defendant: SURI CORPORATION PTY LTD (ACN 093 505 321) Thirty Eighth Defendant: SUTTON RISE PTY LTD (ACN 088 204 399) Thirty Ninth Defendant: THE VIRTUAL MLMER PTY LTD (ACN 065 374 665) Fortieth Defendant: TIVENDALE PTY LTD (ACN 093 505 349) Forty First Defendant: TULLOCH DOWNES PTY LTD (ACN 078 895 048) Forty Second Defendant: MAINKING PTY LTD (ACN 100 790 485) Forty Third Defendant: TOPGLEN PTY LTD (ACN 096 857 564) Forty Fourth Defendant: ALLBLUE PTY LTD (ACN 100 836 388) Forty Fifth Defendant: ARANBAY PTY LTD (ACN 098 532 319) Forty Sixth Defendant: MELVILLE CORPORATION PTY LTD (ACN 091 911 045) Forty Seventh Defendant: TILLEY LANE PTY LTD (ACN 086 136 361) Forty Eighth Defendant: HPSC PTY LTD (ACN 059 930 139) Forty Ninth Defendant: JENSDALE PTY LTD (ACN 098 367 974) Fiftieth Defendant: OAKDALE RISE PTY LTD (ACN 091 598 908) Fifty First Defendant: MAYWOOD INVESTMENTS PTY LTD (ACN 091 599 218) Fifty Second Defendant: ACETRAIN PTY LTD (ACN 100 820 282) Fifty Third Defendant: SAGE BAY PTY LTD (ACN 097 306 628) Fifty Fourth Defendant: TOBAGO HOLDINGS PTY LTD (ACN 093 504 520) Fifty Fifth Defendant: WILHELMUS ANTONIUS JOANNES BOERKAMP Fifty Sixth Defendant: AUSTPAC FUNDS MANAGEMENT LIMITED Fifty Seventh Defendant: GOLDEN HERITAGE GOLF PTY LTD