Australian Securities and Investments Commission v Marco

INTRODUCTION 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. 3 On 28 January 2021, the Court made orders, by consent, for fixing the Receivers' remuneration for work undertaken as interim receivers in the period from 27 May 2020 to 6 December 2020. Since those orders were made, the plaintiff (ASIC) and the first defendant (Mr Marco) have not engaged with, or sought to be heard on, the Receivers' remuneration applications. 4 By interlocutory process dated 7 April 2021, the Receivers sought orders fixing their remuneration for the period from 7 December 2020 to 5 March 2021 and approving interim payments of 85% of the remuneration claimed for each of the periods 27 May 2020 to 6 December 2020 and 7 December 2020 to 5 March 2021. On 19 April 2021, the Court made orders, in effect, granting that application: Australian Securities and Investments Commission v Marco (No 7) [2021] FCA 429. 5 By interlocutory process dated 9 July 2021, the Receivers sought orders fixing their remuneration for the period from 6 March 2021 to 4 June 2021 and approving an interim payment of 85% of the remuneration claimed for that period. On 14 July 2021, the Court made orders, in effect, granting that application: Australian Securities and Investments Commission v Marco (No 8) [2021] FCA 885. 6 By interlocutory process dated 21 October 2021, the Receivers sought orders fixing their remuneration for the period from 5 June 2021 to 3 September 2021 and approving an interim payment of 85% of the remuneration claimed for that period. On 29 October 2021, the Court made orders, in effect, granting that application: Australian Securities and Investments Commission v Marco (No 10) [2021] FCA 1342. 7 By interlocutory process dated 3 February 2022, the Receivers seek orders fixing their remuneration for the period from 4 September 2021 to 3 December 2021, approving an interim payment of 85% of the remuneration claimed for the period from 4 September 2021 to 3 December 2021, and approving an interim payment of 85% of supplementary remuneration claimed for the period from 15 July 2021 to 3 September 2021. The orders sought are in substantially the same terms as the orders the Court made on 7 April, 9 July and 21 October 2021. 8 By interlocutory process dated 12 May 2022, the Receivers seek orders fixing their remuneration for the period from 4 December 2021 to 4 March 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 7 April, 9 July and 21 October 2021. 9 On 14 June 2022, I made orders, in effect, granting the orders sought: (a) in the Receivers' application of 3 February 2022, except that an order was not made approving a supplementary interim payment of the remuneration claimed for the period from 15 July to 3 September 2021; and (b) in the Receivers' application of 12 May 2022. These are the reasons for those orders.

Materials relied upon 10 The Receivers filed and relied upon an affidavit of Mr Brauer sworn 3 February 2022 in support of the interlocutory process dated 3 February 2022. The Receivers filed and relied upon an affidavit of Mr Brauer sworn 12 May 2022 in support of the interlocutory process dated 12 May 2022. 11 The Receivers filed written submissions dated 12 January 2021 in support of the interlocutory process dated 18 December 2020, written submissions dated 14 April 2021 in support of the interlocutory process dated 7 April 2021 and written submissions dated 13 July 2021 in support of the interlocutory process dated 9 July 2021. The Receivers relied on their previous written submissions mutatis mutandis in support of the interlocutory processes dated 3 February and 12 May 2022. 12 The Receivers requested that each of the interlocutory processes of 3 February and 12 May 2022 be determined on the papers. ASIC and Mr Marco have indicated that they do not wish to be heard on the applications. 13 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.

Orders of 7 December 2020 14 By paras 5, 6, 7 and 10 of the orders of the Court of 7 December 2020, the Receivers are entitled to reasonable remuneration properly incurred in the performance of their duties arising in connection with their appointment and in the exercise of their powers as may be approved by the Court on the application of the Receivers, together with all costs, expenses and disbursements. Such remuneration is to be calculated on the basis of time reasonable, spent by the Receivers and any partner or employee of the firm to which the Receivers are attached, at the standard rates of the Receivers' firm, from time to time, for work of that nature. The Receivers' remuneration, costs, expenses and disbursements are to be paid from the property. 15 The Receivers seek remuneration in the sum of $146,594.25 (inclusive of GST) for the period from 4 September 2021 to 3 December 2021 and supplementary remuneration in the sum of $41,317.65 (inclusive of GST) for the period from 15 July 2021 to 3 September 2021. For each of these periods, the Receivers now seek orders approving an interim payment of 85% of the remuneration claimed. 16 The Receivers seek remuneration in the sum of $41,622.90 (inclusive of GST) for the period 4 December 2021 to 4 March 2022. They also seek orders approving an interim payment of 85% of the remuneration claimed for that period. 17 Paragraphs 1 to 5 of the orders sought in each of the interlocutory processes dated 3 February 2022 and 12 May 2022 set out a mechanism for the approval by a Registrar of the Court of the amount of remuneration to which the Receivers are entitled under paras 5, 6, 7 and 10 of the orders of 7 December 2020.

Evidence 18 For each of the periods 4 September to 3 December 2021 and 4 December 2021 to 4 March 2022, the Receivers continued to undertake a significant amount of work. The nature of, need for and complexity of that work is explained in summary form in: (a) the Receivers' Remuneration Approval Report for the period from 4 September 2021 to 3 December 2021 (Fourth Remuneration Report); and (b) the Receivers' Remuneration Approval Report for the period from 4 December 2021 to 4 March 2022 (Fifth Remuneration Report). The Fourth Remuneration Report is Appendix 2 of the Receivers (and Liquidators) Fourth Report to the Committees of Inspection dated 9 December 2021 which is annexed and marked RCB-1 to Mr Brauer's affidavit of 3 February 2022. The Fifth Remuneration Report is Appendix 2 to the Receivers (and Liquidators) Fifth Report to the Committees of Inspection dated 10 March 2022 which is annexed and marked RCB-1 to Mr Brauer's affidavit of 12 May 2022. 19 The Fourth Remuneration Report also contains an outline of additional work undertaken in the period 15 July 2021 to 3 September 2021. The remuneration for that additional work was not included in the Receivers' application for approval for an interim payment in their application of 21 October 2021 and, therefore, no order was made approving an interim payment of 85% of the remuneration claimed for that work in the orders of the Court made on 29 October 2021. 20 The additional amount of remuneration claimed for the period 15 July to 3 September 2021 is $41,317.65 (inclusive of GST). In his affidavit of 3 February 2022, Mr Brauer deposes that the amount claimed relates to work undertaken in part of the period covered by the remuneration application dated 21 October 2021 but which was inadvertently omitted from that application due to an internal reporting error with the McGrathNicol accounting system. Mr Brauer deposes that the Receivers consider the terms of paras 1 to 5 of the orders of the Court made on 29 October 2021 will apply to the fixing of the supplementary amount claimed for that period and, for that reason, no further order is sought in respect of fixing that remuneration. 21 The Receivers' view as to the effect of paras 1 to 5 of the orders made on 29 October 2021 is correct. The application for a supplementary interim payment and reasons for refusing it are addressed later in these reasons. 22 While the Receivers' applications are not made under Ch 5 of the Corporations Act 2001 (Cth), in exercising the Court's powers to fix a receiver's remuneration under s 425, the Court must have regard to whether the remuneration is reasonable, taking into account any or all of the matters referred to in s 425(8). As under the Court orders of 7 December 2020 the Receivers are entitled to reasonable remuneration properly incurred, it is appropriate to take into account the same or similar matters that the Court would take into account in determining whether remuneration is reasonable under s 425(8): e.g., Re Banksia Securities Ltd (in liq) (receivers and managers appointed) [2017] NSWSC 540 (at [41]-[42]). 23 In each of his affidavits of 3 February 2022 (para 8) and 12 May 2022 (para 7), Mr Brauer deposes that details of relevant matters mentioned in s 425(8) of the Corporations Act are set out in each of the Fourth and Fifth Remuneration Reports. Each of the reports 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 reports and schedules to the reports. The methodology for presenting, reviewing and for being satisfied that the work was necessary and properly performed is outlined in the reports. Mr Brauer deposes that each of the reports 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.

No opposition by ASIC 24 ASIC has reviewed each of the Fourth and Fifth Remuneration Reports and expressed no opposition to the amount of remuneration claimed: affidavit of Mr Brauer of 3 February 2022, paras 11-12, RCB-3; affidavit of Mr Brauer of 12 May 2022, paras 10-11, RCB-3. ASIC was also served with a copy of each of the interlocutory processes and the Brauer affidavits. ASIC has advised the Court that it does not wish to be heard on the applications. 25 I am satisfied, based on ASIC's position, that nothing in the material provided to it has caused it to form the view that any aspect of the Receivers' claim for remuneration requires regulatory intervention or warrants the making of submissions before the Court.

No opposition by Mr Marco 26 Mr Marco was served with a copy of each of the interlocutory processes and the Brauer affidavits. Mr Marco has advised the Court that he does not wish to be heard on the applications.

No opposition by Committee of Inspection 27 The Receivers provided members of the Committee of Inspection for the Scheme and AMS Holdings (WA) Pty Ltd (Receivers & Managers appointed) (In Liquidation) (ACN 164 700 485) with a copy of each of the Fourth and Fifth Remuneration Reports at meetings held on 16 December 2021 and 17 March 2022, respectively. The Committee had no questions about or objections to the remuneration claimed in each of the remuneration reports and acknowledged that each of the reports would be submitted to the Court for approval. At the same meetings, the Committee passed resolutions approving the remuneration claimed by the Liquidators under a separate liquidators' remuneration report: affidavit of Mr Brauer of 3 February 2022, paras 9-10, RCB-2; affidavit of Mr Brauer of 12 May 2022, paras 8-9, RCB-2.

Requested orders 28 By paras 7 and 8 of the interlocutory process of 3 February 2022 and paras 6 and 7 of the interlocutory process of 12 May 2022, the Receivers seek orders which will allow them, in effect, to obtain interim payment of 85% of their claimed remuneration from the property. The interim payment would be made on the basis that: (a) if the interim payment were greater than the amount ultimately determined by the Registrar (or any subsequent determination by the Court), the Receivers would refund the difference together with interest; and (b) if the Registrar or the Court were to ultimately determine that the Receivers were entitled to recover more than the interim payment, then they could do so.

Applicable principles 29 As was noted in Marco (No 7) (at [16]) and Marco (No 8) (at [18]), it is not in doubt that the Court has power to make orders for interim payments of the kind the Receivers have requested. The sources of the Court's power include s 601EE of the Corporations Act, in relation to the Scheme, and the Court's inherent power to control receivers appointed by the Court: e.g., Australian Securities and Investments Commission v Letten (No 7) [2010] FCA 1231; (2010) 190 FCR 59 (at [269]-[271]). Interim payment orders of the type the Receivers seek in the interlocutory processes were made in Australian Securities and Investments Commission v Letten (No 9) [2010] FCA 1459 and Australian Securities and Investments Commission v Letten (No 19) [2012] FCA 375 and, also, in these proceedings, in Marco (No 7), Marco (No 8) and Marco (No 10). 30 As McKerracher J observed in Marco (No 7) (at [18]) and Marco (No 8) (at [20]) (citing Letten (No 9) (at [11]) and Letten (No 19) (at [11])), when considering whether an interim payment order ought to be made, the following two questions arise. (1) Should the Receivers be entitled to immediate payment of the remuneration on an interim basis? (2) If so, is 85% an appropriate proportion and, in any case, what other safeguards should be put in place?

Entitlement to interim payment 31 As was noted in Marco (No 7) and Marco (No 8), the Receivers have undertaken a significant amount of work since their appointment. The issues that have arisen and continue to arise in the receivership are not straightforward and the task is not complete and is unlikely to be completed for some time. The facts deposed to in the affidavits of Mr Brauer of 3 February 2022 and 12 May 2022 indicate that the Receivers continue to perform a significant amount of work. It also remains the case that the issues that have arisen and that continue to arise in the receivership are complex and the receivership will continue for some time. 32 As was also noted in Marco (No 7) and Marco (No 8), it is not known when the Registrar will ultimately fix the remuneration claimed by the Receivers. Approval of remuneration for the periods 27 May 2020 to 6 September 2020, 7 December 2020 to 5 March 2021, 6 March 2021 to 4 June 2021 and 5 June 2021 to 3 December 2021 has not been undertaken. 33 I am satisfied that, in the circumstances described in these reasons, it is appropriate to make an order that allows the Receivers to obtain immediate interim payments for the work performed in the period from 4 September 2021 to 4 March 2022. Further, it is evident that there are sufficient funds available to allow for payment to be made of a substantial portion of the remuneration claimed out of the property.

Safeguards 34 An order authorising immediate payment of claimed remuneration on an interim basis must be subject to appropriate measures (or safeguards) to ensure that any overpayment of the Receivers' remuneration will not diminish the funds available for distribution out of the property or otherwise prejudice the interests of relevantly interested parties: e.g., Letten (No 9) (at [14]), Letten (No 19) (at [13]), Marco (No 7) (at [23]) and Marco (No 8) (at [25]). 35 The safeguard mechanisms included in the orders of the Court previously made in these proceedings and the orders made on 14 June 2022 are as follows. (a) At the time an interim payment is made, the Receivers are to file a certificate in the form of Annexure A to the orders. That certificate requires the Receivers (who are officers of the Court) to confirm that the drawdown is consistent with the orders allowing for the interim payment. (b) In due course, a Registrar of the Court will review and fix the remuneration to which the Receivers are properly entitled. (c) The Receivers are obliged to repay any overpayments (with interest) if the amount ultimately determined by the Registrar (or the Court) is less than the amount paid on an interim basis. (d) The interim payment is a proportion of the amount of remuneration claimed. Therefore, the risk of overpayment is mitigated to that degree. 36 There are other aspects of the circumstances which militate against the risk of overpayment. Namely, the Committee has been given and has considered the remuneration amounts claimed and makes no objection. Further, notice of the application was served on ASIC and Mr Marco and neither objected nor sought to be heard on the orders requested.

Appropriate proportion 37 Where there are appropriate mechanisms to protect the interests of relevantly interested parties, it is appropriate to take a 'broad brush approach' to the determination of the amount in which to approve an interim payment. In cases such as this, there is authority for the proposition that it may be appropriate to adopt 'a rule of thumb' of awarding 80%-85% of the remuneration claimed: Re Clynton Court Pty Ltd [2005] FCA 543; (2005) 53 ACSR 432 per Finkelstein J (at [21]); Letten (No 9) (at [15]); Letten (No 19) (at [17]); Australian Securities and Investments Commission v Letten (No 21) [2013] FCA 744; Australian Securities and Investments Commission v Letten (No 27) [2020] FCA 891 and Marco (No 7) (at [28]). The proposed figure of 85% in each of the applications is the same as the figure adopted in Letten (No 9), Letten (No 19), Letten (No 21), Letten (No 27), Marco (No 7), Marco (No 8) and Marco (No 10). 38 Taking into account the other safeguards referred to earlier in these reasons, I am satisfied that approving an interim payment of up to 85% of the remuneration claimed for each of the periods 4 September to 3 December 2021 (i.e., 85% of $146,594.25 (inclusive of GST)) and 4 December 2021 to 4 March 2022 (i.e., 85% of $41,622.90 (inclusive of GST)) is appropriate.

Supplementary interim payment 39 By para 6 of the orders of the Court of 29 October 2021, a payment of 85% of $87,379.05 (inclusive of GST) was approved on an interim basis for the remuneration claimed for the period 5 June to 3 September 2021. That is, an interlocutory order of this Court was made approving an interim payment of $74,272.19 (inclusive of GST) for the Receivers' remuneration for the period 5 June to 3 September 2021. That order was entered in accordance with rr 39.32, 39.33 and 39.35 of the Federal Court Rules 2011 (Cth) and there was no appeal from those orders. 40 By para 6 of the interlocutory process dated 3 February 2022, the Receivers have sought a supplementary interim payment of 85% of $41,317.65 for the period 15 July to 3 September 2021. That is, the Receivers now seek, in effect, an interim payment of 85% of the total remuneration now claimed for the period 5 June to 3 September 2021. The total remuneration now claimed for that period is $128,696.70 (inclusive of GST) ($87,379.05 plus $41,317.65). While framed as an order for 'supplementary remuneration' the requested order would have the effect of varying the order of the Court made on 29 October 2021 from an order approving an interim payment in the amount of $74,272.19 (inclusive of GST) for the Receivers' remuneration for the period 5 June to 3 September 2021 to an order approving an interim payment in the amount of $109,392.20 (inclusive of GST) for that period. That is, it would have the effect of varying an interlocutory order of the Court that has been entered without an appeal from that order. 41 The Court has power to vary or set aside an interlocutory order after it has been entered: r 39.05 of the Rules. However, the power is discretionary and is to be exercised with caution and only in 'exceptional circumstances'. Due weight is to be given to the principle of the finality of litigation even where the order in question is interlocutory: e.g., Professional Administration Service Centres Pty Ltd v Commissioner of Taxation [2012] FCAFC 180; (2012) 295 ALR 52 at [52]. 42 The facts deposed to in Mr Brauer's affidavit of 3 February 2022 in support of the Receivers' interlocutory process of the same date do not identify 'exceptional circumstances' that would justify the Court reopening a perfected interlocutory order. The inadvertent omission to claim an interim payment of remuneration for part of the work undertaken in the period from 15 July to 3 September 2021 deposed in Mr Brauer's affidavit (at para 7) is not an exceptional circumstance. I do not consider that there are sufficient grounds to reopen the order of the Court of 29 October 2021 and vary the terms of the approval of an interim payment to the Receivers. In any event, even if I considered there were grounds to reopen the orders of 29 October 2021 or otherwise the Court has power to make the requested order, for the reasons which follow, I am not satisfied that it is appropriate to make an order approving a supplementary interim payment of remuneration for the period 15 July to 3 September 2021. 43 For the period during which the Receivers were interim receivers, from 27 May to 6 December 2020, and the period during which the Receivers were final receivers, from 7 December 2020 to 3 September 2021, the Receivers claimed total remuneration of $914,307 (inclusive of GST) of which 85% was approved for payment, or $777,161 (inclusive of GST). With the supplementary remuneration amount claimed for the period 15 July 2021 to 3 September 2021, the total amount claimed for the period 27 May 2020 to 3 September 2021 is $955,625. It follows that, under the orders of the Court made up to and including 29 October 2021, interim payments in the total amount of $777,161 were approved in respect of total remuneration now claimed in the amount of $955,625. That is, interim payments of approximately 81% of the total now claimed have already been approved. That percentage is within the rule of thumb referred to earlier in these reasons and the overall percentage will be improved by the orders of 14 June 2022 by which interim payments of 85% of the remuneration claimed in the periods from 4 September to 3 December 2021 and 4 December 2021 to 4 March 2022 were approved. Further, if and to the extent the Receivers have not recovered the remuneration to which they are ultimately entitled for the period 15 July 2021 to 3 September 2021, they will be entitled to do so under the orders made on 29 October 2021. Therefore, I do not consider it necessary or appropriate to make provision for any supplementary interim payment for the Receivers' remuneration for the period 15 July 2021 to 3 September 2021.

CONCLUSION 44 As the Receivers continue to undertake a substantial amount of work in relation to a complex scheme and it is not certain when the Registrar will fix the Receivers' remuneration, orders for further interim payments are appropriate. Given the safeguards provided in the orders and the broad brush approach to be taken to matters of this nature, 85% of the amount claimed in the interlocutory processes of 3 February and 12 May 2022 is also appropriate. Accordingly, orders substantially in the terms of the interlocutory processes were made on 14 June 2022. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.