Australian Securities and Investments Commission v Marco

FEUTRILL J: 1 By orders of the Court made on 7 December 2020, Messrs Robert Kirman and Robert Brauer of McGrathNicol were appointed as joint and several receivers and managers of all property of the first and second defendants, all property of the third defendant immediately prior to the appointment of voluntary administrators to the third defendant, and all property of the managed investment scheme operated by each of the defendants described in the orders (Scheme and Property). Messrs Kirman and Brauer were also appointed as joint and several liquidators of the Scheme and AMS Holdings (WA) Pty Ltd (Receivers & Managers Appointed) (In Liquidation) (ACN 164 700 485) (the second defendant): Australian Securities and Investments Commission v Marco (No 6) [2020] FCA 1781. Before those orders, on 27 May 2020, Messrs Kirman and Brauer had been appointed as interim receivers or trustees of the property of the first defendant and interim receivers and managers of the property of the second and third defendants: Australian Securities and Investments Commission v Marco (No 3) [2020] FCA 719. Messrs Kirman and Brauer are referred to in these reasons as the Receivers. 2 After the Court made orders for their final appointment as receivers, the Receivers made a number of applications to the Court for orders to facilitate the fixing of their remuneration for various periods by a Registrar, as well as for orders approving, subject to certain safeguards, immediate interim payment of amounts equivalent to 85% of the total remuneration claimed for each period. Orders were made on those applications allowing for such interim payments in Australian Securities and Investments Commission v Marco (No 7) [2021] FCA 429, Australian Securities and Investments Commission v Marco (No 8) [2021] FCA 885, Australian Securities and Investments Commission v Marco (No 10) [2021] FCA 1342 and Australian Securities and Investments Commission v Marco (No 11) [2022] FCA 704 for the reasons given in those decisions. 3 By interlocutory process dated 4 August 2022, the Receivers seek orders fixing their remuneration for the period from 5 March to 3 June 2022 and approving an interim payment of 85% of the remuneration claimed for that period. The orders sought are in substantially the same terms as the orders the Court made on the earlier applications. The Receivers filed and rely upon an affidavit of Mr Brauer sworn 4 August 2022. In particular, that affidavit annexes the Receivers' Remuneration Approval Report for the period from 5 March to 3 June 2022 (Sixth Remuneration Report). 4 The Receivers requested that the interlocutory processes of 4 August 2022 be determined on the papers. The Australian Securities and Investments Commission and Mr Marco have indicated that they do not wish to be heard on the application. 5 The Court may deal with a matter without an oral hearing (either with or without the consent of the parties) if satisfied that determination of the matter would not be significantly aided by an oral hearing because the legal arguments in relation to the matter can be dealt with adequately by written submissions: s 20A(2)(c)(ii) of the Federal Court of Australia Act 1976 (Cth). I am so satisfied. 6 As there have been four previous sets of orders for the interim payment of remuneration made on the same or substantially the same basis as the present application, it is only necessary to briefly state the reasons for making the requested orders. 7 The applicable legal principles are set out in Marco (No. 7), Marco (No. 8) and Marco (No. 11). The nature of, need for, and complexity of the work the Receivers performed in the period from 5 March to 3 June 2022 is explained in summary form in Mr Brauer's affidavit and the Sixth Remuneration Report. In his affidavit Mr Brauer deposes that details of relevant matters mentioned in s 425(8) of the Corporations Act 2001 (Cth) as to the reasonableness of the Receiver's remuneration are set out in the Sixth Remuneration Report. The report contains a declaration by the Receivers to the effect that they are satisfied that the remuneration claimed is in respect of necessary work properly performed. The tasks undertaken are described in the report and schedules to the report. The methodology for presenting, reviewing and for being satisfied that the work was necessary and properly performed is outlined in the report. Mr Brauer deposes that the report has been prepared with the requisite level of detail and to the standards of the applicable professional body - 'Practice Statement Insolvency 5: Remuneration reporting issued under the ARITA Code of Professional Practice'. There is no opposition to the claimed remuneration by ASIC, Mr Marco or the relevant committee of inspection. 8 I am satisfied for substantially the same reasons I expressed in Marco (No. 11) and on the basis of the same protections, safe-guards and mechanisms there explained, that there should be an order for interim payment of 85% of the Receiver's claimed remuneration for the period from 5 March to 3 June 2022. Accordingly, orders will be made in terms of the Receiver's interlocutory application of 4 August 2022. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.