BestCare Foods Ltd v Origin Energy LPG Ltd

Judgment 1By Amended Originating Process filed 30 September 2014 brought under s 449E(2) of the Corporations Act 2001 (Cth), Mr Michael Goldring seeks an order that the Court review the remuneration of the administrators and deed administrators of Bestcare Foods Limited (subject to a deed of company arrangement) ("Company"); that the administrators and deed administrators reduce that remuneration by $800,000 and that the administrators and/or the deed administrators return an amount of $800,000, implicitly to the Company. The manner in which that figure was calculated did not clearly emerge in the course of the application, although it appears to reflect a calculation of the administrator's and deed administrators' fees or part of them. Background to the application 2I should first set out the background to the application, some of which I have previously set out in my earlier judgment delivered on 23 May 2014 in respect of another issue arising in the Company's administration ([2014] NSWSC 645). From at least mid-2001, the Company manufactured dry pet food at a factory at Gunnedah. An explosion occurred at the Gunnedah factory in January 2003 which substantially destroyed the factory. The Company subsequently received payments from its insurers under liability and business interruption policies and acquired a replacement factory in Dubbo from which it commenced manufacturing operations in about October 2003. However, its business did not return to profitability and it was placed in voluntary administration in November 2004. Receivers and managers were also appointed by a secured creditor pursuant to a fixed and floating charge in November 2004. 3On 17 February 2005, the second meeting of creditors in the Company's administration voted to accept a proposal for a deed of company arrangement ("DOCA") which contemplated that the Company's business and assets would be sold; the Company and its insurer would bring a negligence action against Origin Energy LPG Ltd and Origin Energy Retail Ltd ("Origin Energy") in respect of the circumstances of the explosion that had destroyed the Company's factory; and that funds received by the Company from that action would form part of a deed fund to be distributed in a specified manner. The Company entered into the DOCA on 10 March 2005 and Messrs Albarran and Elliott were appointed as deed administrators. The Company commenced the proceedings against Origin Energy in 2005. Mr Albarran retired as deed administrator in March 2008. Mr Elliott retired as deed administrator in March 2011 and Messrs Ingram and Ross, who are currently the deed administrators, were appointed as deed administrators at that time. 4Judgment as to liability was delivered in the proceedings brought against Origin Energy in August 2011, some six years after their commencement, and judgment as to quantum in November 2013, some eight years after their commencement. The Company and related entities were ultimately awarded the sum of $67,126,499.51 inclusive of interest (BestCare Foods Ltd v Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) [2013] NSWSC 1673). The damages recovered from that litigation were sufficient to repay creditors in full and to provide for a return to contributories. By my earlier judgment I held, over the opposition of Mr Goldring and a company associated with him, that the deed administrators were justified in paying interest on claims of unpaid creditors. On 25 June 2014, I made orders by consent that the DOCA be terminated on 16 October 2014, leaving open the possibility that an application for the review of the administrators' or deed administrators' remuneration would be brought in the interim. Mr Goldring filed an application for review of the administrators' and deed administrators' fees under s 449E(2) of the Corporations Act on 11 September 2014. The date of termination of the deed administration was then further extended to 30 November 2014, while this stage of this application was determined. Applicable principles 5Mr Goldring accepts that the administrators' and deed administrators' remuneration were approved, for relevant purposes, by resolution of the Company's creditors under s 449E(1)(b) and s 449E(1A)(b) of the Corporations Act respectively. I will refer to the circumstances in which that occurred, on numerous occasions during the ten year period in issue in this application, below. 6Prior to amendments made by the Corporations Amendment (Insolvency) Act 2007 (Cth), s 449E of the Corporations Act provided that: "(1) The administrator of a company under administration, or of a deed of company arrangement, is entitled to: (a) such remuneration as is fixed by a resolution of the company's creditors passed at a meeting convened under section 439A, or under section 439A or 445F, as the case may be; or (b) if no remuneration is so fixed - such remuneration as the Court fixes on the application of the administrator. (2) Where remuneration is fixed under paragraph (1)(a), the Court may, on the application of the administrator or of an officer, member or creditor of the company: (a) review the remuneration; and (b) confirm, increase or reduce it. (3) Subsection (2) has effect despite section 437C." The amendments to that section by the Corporations Amendment (Insolvency) Act took effect from 31 December 2007. As amended, s 449E(4) of the Corporations Act requires the Court to have regard to whether the relevant remuneration is reasonable, taking into account all or any of specified matters, in exercising its review power. Section 1480 of the Corporations Act provides that the amended section applies to the administrator of a company if he or she was appointed on or after 31 December 2007. Those amendments do not apply to a review of the remuneration of Messrs Albarran and Elliott, who were appointed both as administrators and deed administrators prior to that date. It is not necessary, given the findings which I reach below, to determine whether they are capable of applying to Messrs Ross and Ingram to the extent they were appointed as deed administrators after that date. 7The scope of an administrator's and deed administrator's right to remuneration was considered in Paul's Retail Pty Ltd v Morgan [2009] NSWSC 1222; (2009) 76 ACSR 26, Barrett J (as his Honour then was) noted that s 449E of the Corporations Act is concerned with quantification and does not create a right to be remunerated. His Honour noted that an administrator's right to be remunerated is a statutory right, arising under s 443D of the Corporations Act which creates a right to be indemnified out of the company's property for remuneration fixed under s 449E of the Corporations Act and that the Corporations Act does not create a statutory right to remuneration of the administrator of a deed of company arrangement, although a deed administrator can resort to the company's property for satisfaction of his or her remuneration once it is duly fixed, and the company's liability to pay the deed administrator's remuneration (as quantified under s 449E of the Corporations Act) is created by the deed of company arrangement itself. No submission was put in this case that there was any issue as to the deed administrators' right to remuneration, as distinct from the quantum of the remuneration claimed. No submission was made that s 449E of the Corporations Act did not extend to a review of the quantum of the remuneration of Messrs Albarran and Elliott, although they are no longer in office as administrators or deed administrators, and the view that the section extends to the remuneration of a former administrator is supported by the decision of Besanko J in Strazdins v DNPW Pty Ltd [2013] FCA 1368. 8An application for an order for review of an administrator's or deed administrator's remuneration under s 449E(2) of the Corporations Act involves a two stage process. The first stage is that the Court determines if it is just for a review to occur, some need having been shown for that to occur, and the Court will only proceed to review if some need is shown for it: Paul's Retail Pty Ltd v Morgan above at [79]. Barrett J there also noted (at [76]-[77]) that, in an application for review of an administrator's or deed administrator's remuneration under s 449E of the Corporations Act: "... the question whether the remuneration already fixed is reasonable - or unreasonable because either too high or too low - is the only question to be addressed. I say this because of approaches taken in decided cases concerning the remuneration of administrators and liquidators. In Re Korda; Stockford Ltd (above), a case about initial fixing of remuneration, Finkelstein J referred to the need for those making the determination to have "information which would enable them to determine whether the fees claimed were reasonable". In Re Solfire Pty Ltd (No 2) [1999] 2 Qd R 182, Shepherdson J said that decision makers must be given sufficient detail to enable them to make "a properly informed decision on the reasonableness or otherwise of the remuneration". That observation was approved by the Full Court of the Supreme Court of Western Australia in the later case of Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96. Thus, although the statute says nothing about the aim of the initial remuneration fixing process, the objective has been accepted by the courts as that of producing a reasonable remuneration. It must follow, in my view, that the aim of the review process is to determine whether the initial fixing process has miscarried, in the sense that the initially fixed remuneration can be seen to be not reasonable remuneration and, if it has, to substitute a reasonable remuneration for that originally fixed. So much was accepted by Bredmeyer M in GIS Electrical Pty Ltd v Melsom [2001] WASC 314 at [68] when he said that a person seeking review must show that the remuneration initially fixed is not fair and reasonable. The assessment whether the initially fixed sum is fair and reasonable will be made in the light of all relevant circumstances brought to the court's attention upon the review. These may include circumstances that were not known or foreseen at the time the remuneration was fixed. They may include the circumstance that some work actually done was outside the proper performance of the administrator's functions or was unnecessary, although allegations of misfeasance or breach of duty should not be determined upon a review of remuneration; also notions of punishment are foreign to the process ... His Honour also noted that, in undertaking review under s 449E(2), the Court is not confined to adopting the position for which the administrator or an objector contends, and must simply decide, in accordance with s 449E(4), the appropriate quantum. His Honour's decision was upheld in Paul's Retail Pty Ltd v Morgan [2010] NSWCA 217; (2010) 79 ACSR 580. The evidence in the application 9The application is supported by affidavits of Mr Goldring dated 10 September 2014 and 9 October 2014 and an affidavit of his solicitor dated 29 September 2014 which refers to fees charged during the administration and deed administration in excess of $710,000. Mr Goldring also sets out the history of the voluntary administration and deed administration of the Company, to which I have referred above. He notes that, during the period of the administration, the administrators had two to three people per day, on average, on site at the Company's factory in Dubbo and he was not aware of the number of people working on the matter in their Sydney office (Goldring 10.9.2014 [16]). The fees referred to in Mr Goldring's affidavit and the apparently large figure of $800,000 that is in dispute relates to the work of administrators and deed administrators who, as I noted above, were in office for a period of over 10 years while the complex litigation brought by the Company and its insurer against Origin Energy was being undertaken. 10Mr Goldring criticises the state of records made available for inspection by the administrators and deed administrators, which he contends did not allow him to confirm the validity of the fees charged, because of inadequate or incomplete descriptions of the tasks for performing and charging made (Goldring 9.10.2014 [35]). There is no evidence that documents have been destroyed over the relevant period, and I proceed on the basis that they have not; however, common experience suggests that the process of justification of such matters would more readily be undertaken shortly after they occurred, when persons' recollection of relevant matters was fresh, rather than many years after the event. 11By his further affidavit dated 9 October 2014, Mr Goldring refers to his review of documents produced by administrators. Mr Goldring acknowledges uncertainty, which he attributes to the manner in which the documents were organised, as to whether he has located all documents in respect of the fees charged by the administrators and deed administrators. Mr Goldring also identifies various matters that he is not able to understand from the documents he has reviewed and other areas where he is unable to identify the work done by the administrators from those documents. However, even if it be assumed that those documents are not sufficient to explain or identify all of the work done by the administrators, it does not follow that the fees previously fixed or approved by creditors were excessive, or that work was not done. No doubt, it would be possible to establish that matter, by showing, for example, that the entirety of the work done was such that the amounts approved by creditors for payment of that amount were not reasonable. Mr Goldring's review and critique of the documentation held in the administrators' files does not take that approach, although he criticises substantial aspects of the administrators' and deed administrators' work as I will note below. 12Mr Goldring did not lead any expert evidence, given by a person who had reviewed the relevant documents and had appropriate insolvency expertise, to express an opinion as to the work done, in support of the application, but instead expressed that opinion himself in passages of his affidavit. The Defendants submitted that significant parts of Mr Goldring's affidavits of that kind should be admitted subject to a limitation under s 136 of the Evidence Act 1995 (NSW) that they should be treated as submission only. Mr Goldring accepted that such an order should be made in respect of some parts of that evidence. It seems to me that such a limitation should be imposed in respect of the wider points of that evidence to which objection was taken. To take one example, paragraph 32 of Mr Goldring's affidavit dated 9 October 2014 sets out "further questions" which he suggests are raised by his review of a particular document. Mr Laughton, who appeared for Mr Goldring, submits that that paragraph is admissible as "primary evidence", but it seems to me that it can only be admissible as a submission as to the questions which might be asked by a reviewer of that document who did not possess specialist expertise in insolvency. Other paragraphs seem to me to be submissions as to the content of documents or, often, as to what is not contained in documents. 13I will refer to the evidence as to meetings of the Company's creditors below. Mr Goldring's evidence is that he cannot recall whether he was present at every meeting of creditors, but he recalls that he was present at most of them and believes that he attended all of them. He says he did so as a creditor of the Company and not as a director or representative of a shareholder of the Company and that the current proceedings have been initiated by him as a director of the Company. I accept that Mr Goldring has different capacities, as a creditor, director and shareholder of the Company, but it does not seem to me that his lack of contemporaneous objection to the administrators' fees - to which I will refer below - in one capacity is any less relevant to his position in another capacity. 14Mr Goldring also seeks to explain his lack of objection, during the previous ten years, to the remuneration approved by creditors in respect of the administrators and deed administrators by a belief that active participation in the relevant creditors' meetings might place himself and the other director of the Company, Mr Strobl, in a "position of conflict"; that the administrators were initially investigating the possibility of commencing proceedings against him and Mr Strobl, although he did not believe there were grounds for such proceedings, and he did not wish to be in conflict or uncooperative with the administrators; that, prior to 2008, he was anxious not to delay the distribution of a dividend to creditors by querying costs when he was uncertain whether they were excessive; and he also refers to his belief that legal costs of the deed administrators were included in their fees and not to be treated as additional disbursements. It seems to me that Mr Golding's evidence in this respect suggests that he, and probably also Mr Strobl, reached a conscious decision not to object to the administrators' and deed administrators' remuneration at the time of their approval by creditors, and it seems to me that this is a strong factor tending against an order for review of those fees, some 10 years after administrators were initially appointed to the Company. 15Mr Goldring's evidence is also that he assumed in 2004 - 2005 that fixed fees were the norm but: "... in hindsight I have realised that the fees quoted by the administrators and deed administrators should have been queried from the start and justification for them should have been sought more vigorously by the creditors. This was not done as the major priority of directors at the time was to speed up the administration and ensure creditors were paid promptly. I thought that, had we objected to the fees, this would have further delayed payments to creditors." (Goldring 9.10.2014 [47]) Even if Mr Goldring had sound, and even altruistic, reasons for not objecting to the administrators' fees or resisting their approval, it does not seem to me that that reduces the significance of the very long delay in raising any such objection. 16Mr David Ingram, one of the present deed administrators, led evidence in response to Mr Goldring's application. Mr Ingram had been involved in the administration from its commencement, but has himself only been the deed administrator of the company since he and Mr Ross were appointed to that position in March 2011. Mr Ingram's evidence is that Mr Goldring was in attendance when each of the resolutions were passed at creditors' meetings in relation to the approval of remuneration of the administrators and deed administrators. Mr Ingram gives evidence of approvals of the administrators' fees at meetings held on 21 December 2004, 17 February 2005 and approval of the deed administrators' fees at meetings of creditors held on 17 February 2005, 9 December 2005, 5 September 2007, and 3 March 2011. I will refer to these meeting below. Mr Ingram's evidence is that, as at January 2014, the deed administrators had sufficient funds to pay all of the Company's creditors 100¢ in the dollar plus interest, but Mr Goldring and Mr Strobl disputed the creditors' entitlement to be paid interest, the matter that was determined by the earlier judgment to which I referred above. By his further affidavit dated 9 October 2014, Mr Ingram exhibits reports to creditors for the period between December 2004 and January 2014. 17Mr Laughton submitted that the deed administrators should also be required to file an affidavit containing the information contemplated by r 9.2A of the Supreme Court (Corporations) Rules 1999. Although Mr Ingram has served two affidavits in the proceedings, it does not appear that those affidavits contain the full scope of the information contemplated by r 9.2A(7) of the Supreme Court (Corporations) Rules. I may well have acceded to an application that the deed administrators be required to file such evidence, if that application had been made and pressed prior to the hearing of the substantive application before me. However, the hearing having proceeded in the absence of such evidence, it seems to me that it should be determined on the basis of the evidence that was led. It seems to me that it is now too late to direct the deed administrators to file such an affidavit, where it could be of no utility in the determination of the questions which were fully agitated before me in its absence. 18I will address a number of the specific matters raised by Mr Goldring's evidence and submissions on his behalf in addressing the particular approvals of remuneration below and then turn to several wider submissions made by the parties. Approval of the administrators' remuneration 19Mr Laughton rightly points out that, prior to the amendments made by the Corporations Amendment (insolvency) Act from 31 December 2007, an administrator's fees could only be fixed at the second meeting of creditors, so that much of the administrators' work in this matter had been completed at the time those fees were fixed retrospectively. 20The administrators' initial report to creditors dated 24 November 2004 (Ex A1) provided some information as to the basis on which their fees would be charged as follows: "In accordance with IPAA Statement of Best Practice - Independence on the Appointment of an Administrator, I am required to disclose to creditors the Administrators' proposed basis of remuneration. At the second meeting of creditors which is to be held approximately 28 days after the appointment, creditors will be required to approve a fee, which will be fixed in the amount that the Administrator believes is appropriate to be charged in the circumstances, taking into account the nature and extent of the work performed, the urgency and degree of skill required to complete the tasks at hand, the degree of responsibility undertaken by the Administrator and my staff and the quality and quantity of the work provided to the company and the creditors, the degree of risk and personal exposure to the Administrator from such activities, the normal degree of risk that the remuneration cannot be met and the degree of credit being given before any payment of those fees can be expected. Creditors will be advised of this fee in my Report to Creditors, pursuant to Section 439A of the Corporations Act 2001 and creditors will also be presented with a breakdown of the work carried out during the Administration at the second meeting of creditors." The reference to creditors being "required" to approve such a fee in that explanation was by no means ideal, since creditors were under no obligation to approve that fee, although the administrator could seek approval from the Court for such a fee if they declined to do so. 21The administrators' further report to creditors dated 13 December 2004 (Ex R2, p22) provided a reasonably extensive list of the work done by the administrators since the date of their appointment, which included the usual steps taken by administrators on their appointment, the conduct of the initial meeting of creditors, securing and arranging for the valuation of the Company's assets, discussions in relation to trading the business and with suppliers in relation to that matter, dealing with inquiries from creditors, conducting an investigation as required by s 439A of the Corporations Act, discussion with parties interested in acquiring the Company's business and in providing finance and preparing that report to creditors as required under s 439A of the Corporations Act. That report indicated that the administrator would seek approval for fees at the forthcoming meeting of creditors for the period 24 November 2004 to 21 December 2004 of $185,000 (excluding GST) and stated that: "This is a fixed quote. This fee has been calculated by the Administrator taking into account the nature and extent of the work performed, the urgency and degree of skill required to complete the tasks at hand, the degree of responsibility undertaken by the Administrator and their staff and the quality and quantity of the work provided to the company and the creditors, the degree of risk and personal exposure to the Administrator from such activities, the normal degree of risk that the remuneration cannot be met and the degree of credit being given before payment of those fees can be expected. This fee is fixed in the amount that the Administrator believes is appropriate to be charged in the circumstances. It is not based strictly on rates per hour charged." (Ex R2, p23) I accept that, as Mr Goldring contends, that information did not provide details of, for example, who had done the work or the time that had been spent on doing it, but equally it did not purport to seek a fee on a time-based calculation. It was supported by a detailed narrative of the work undertaken, and the amount involved is not on its face disproportionate to the administration of business that was still trading, and the operation and funding of such a business plainly involved higher levels of skill, responsibility and risk on the part of the administrators. That conclusion can, of course, more readily be drawn where creditors took no contemporaneous objection to, and indeed approved, the remuneration then claimed by the administrators. 22Mr Ingram was cross-examined and questions were put to him as to the weight to be given to each of the criteria referred to in the administrators' report in setting the administrators' fees. His evidence was that he did not have conversations with the then administrator, Mr Albarran, about the weight to be given to those factors and did not know what weight had been given to those factors in setting the administrators' fees. It seems to me that that cross-examination assumed that the setting of fees, by reference to those matters, was a process that could be adopted with mathematical exactitude, and it is by no means apparent to me that that assumption was correct. Mr Ingram was also cross-examined about the fact that the breakdown of work undertaken in the administrators' report did not indicate the hours or rates applied or who was going to perform the work or the rate at which that person was to be charged out (T23). It seems to me that there was limited utility in the cross-examination of Mr Ingram as to remuneration decisions undertaken in 2004-2005 because, as he explained, he was then an intermediate on the assignment involved in doing the work, rather than involved in setting remuneration at that time (T24). Mr Ingram accepted that he, in his then position as an intermediary on the matter, was not aware of the weight that had been given to the relevant factors for the purpose of assessing the relevant fee (T26). 23Approval was given for the administrators' remuneration to 17 December 2004 in the lesser amount of $145,733.60 plus GST at a creditors' meeting on 21 December 2004. The minutes of that meeting relevantly record that: "The Chairman noted that he would seek to have his fees as Administrator approved at this meeting. He also noted that the previous report to creditors estimated fees in the sum of $185,000 plus GST however the actual fees incurred to the 10th December 2004 totalled $145,773.60. It was this sum that he sought approval from creditors for." A creditor then moved a resolution that the administrators' remuneration for the period from 24 November 2004 to 17 December 2004 be fixed in that amount plus GST, and that resolution was carried on the voices (Ex R1, p6). That approval of remuneration on 21 December 2004 was retrospective in character and amounted to a fixed fee, albeit apparently reduced from the amount originally proposed by reference to costs actually incurred. 24Mr Laughton submits that the report to creditors dated 13 December 2004 which preceded the resolution of 21 December 2004 indicated that the figure of $185,000 plus GST was not calculated strictly on rates per hour charged and asks, rhetorically, how were the fees to be charged and what was the basis of the amount quoted. Those may be reasonable questions, but they were questions that could readily have been asked by Mr Goldring and the Company's creditors at the time of the meeting on 21 December 2004 and it does not seem to me that asking them some 10 years later provides any real support for an application for review of the administrators' remuneration. Mr Laughton also points out that the administrators' report notes that a reconciliation of the fees will be disclosed to the creditors at that meeting but that there is no reference to that matter in the minutes of that meeting. That seems to me to leave open the possibilities that, first, the matter was not disclosed or, second, that it was disclosed but not recorded in those minutes. Mr Goldring gives no evidence as to that matter which, given the passage of time, may now be impossible to determine. 25A supplementary report to creditors dated 9 February 2005 indicated that the administrators sought additional remuneration of $390,000 plus GST for the period from 18 December 2004 to 15 February 2005 and $175,000 plus GST for the period from 16 February 2005 to the conclusion of the administration, again on a fixed basis taking into account specified matters. That report also sought that the deed administrators' remuneration be fixed in specified amounts, including fixing remuneration on an annual basis during the period in which legal proceedings by the Company against Origin Energy would be continued. 26In his affidavit dated 10 September 2014, Mr Goldring also takes issue with the contents of the report provided by the administrators of 9 February 2005 in support of their then application for approval of remuneration and criticises the extent of information provided by the administrators in seeking approval for their remuneration at the meeting held on 17 February 2005. It does not seem to me that those criticisms are justified. That report (Ex R2, p33) pointed to the work undertaken by the administrators, on retirement of receivers and managers appointed by a secured creditor, to continue to trade the Company's business in order to maximise the chances of finding a potential investor or purchaser of the Company or its business. It noted that the business had been operated at close to full capacity, with production continuing 7 days a week, 24 hours a day where possible; that the administrators had set up trading accounts and suppliers had been advised that the administrators were personally liable for debts that had been incurred in continuing to trade the Company's business and that they had incurred in excess of $1.1 million of liabilities to allow the Company to continue to trade with a view to maximising the return to creditors; and they had put in place a process by which orders placed by the Company were authorised by the administrators or a member of their management; and that those processes would continue until the completion of the sale of the Company's business. To the extent that the administrators' remuneration was calculated on a basis which had regard to the risk which he was assuming, it should be recognised that a significant personal liability was assumed by the administrator at this time. The report also noted that the administrators had recovered a significant amount of debts owed to the Company. 27As I noted above, the supplementary report to creditors dated 9 February 2005 indicated that the administrators sought approval of $390,000 plus GST in fees for the period 18 December 2004 to 15 February 2005 and $175,000 plus GST for the period 16 February 2005 to the conclusion of the administration (Ex R2, p50). The report noted that: "These are fixed quotes. These fees have been calculated by the Administrator taking into account the nature and extent of the work performed, the urgency and degree of skill required to complete the tasks at hand, the degree of responsibility undertaken by the Administrator and his staff and the quality and quantity of the work provided to the Company and the creditors, the degree of risk and personal exposure to the Administrator from such activities, the normal degree of risk that the remuneration cannot be met and the degree of credit being given before any payment of those fees can be expected." That report also included a detailed narrative of the work undertaken by the administrator and his staff since 18 December 2004, although I accept that that narrative did not indicate who had undertaken the work or the times involved. The report then noted that: "These fees are fixed in the amount that the Administrator believes is appropriate to be charged in the circumstances. It is not based strictly on rates per hour charged. My professional experience has been used in estimating the amount which will be incurred. Documentation will be available closer to the meeting for those creditors who wish to review the fee position." At the time that creditors were approving that representation, they would presumably have been conscious of the narrative of the work undertaken, and also of the extent of management responsibility assumed by the administrators and the credit that the administrators had extended to the Company in order to permit it to continue to trade pending a sale of its business. 28As I noted above, the supplementary report also sought approval of deed administrators' fees fixed in the amount of $100,000 (plus GST) plus fees in the amount of $30,000 (plus GST) for each additional year of the duration of the deed in pursuing the legal action against Origin Energy. The report again noted that: "These fees are fixed in the amount that the Administrator believes is appropriate to be charged in the circumstances. It is not based strictly on rates per hour charge. My professional experience has been used in estimating the amount that will be incurred." That estimate was supported by a brief narrative, albeit in somewhat general terms, of the work likely to be involved with a deed of company arrangement (Ex R2, p52). 29The minutes of the meeting of creditors of the Company held on 17 February 2005 recorded that: "The Chairman noted that he would seek to have his fees as Administrator approved at this meeting. At the request of Mr Alan Topp an observer representing Fletcher International, the Chairman noted that his incurred time cost at the rates for this matter showed $388,000 to date and he proceeded to table his summary of time cost schedule." (Ex R1, p6) The minutes recorded a resolution proposed by a creditor that the administrators' remuneration from 18 December 2004 to 15 February 2005 be fixed in the amount of $390,000 plus GST and that resolution was carried on the voices. The minutes further noted that: "The Chairman noted that in order to complete the Administration process he would be seeking further fees in the amount of $175,000 (plus GST) for the period 16th February 2005 to the conclusion of the Administration." Mr Goldring's evidence is that no specific information as to the work which was to be done by the administrators was provided when a further amount of $175,000 was approved by creditors at the meeting on 17 February 2005. The minutes record a creditor proposing a resolution to fix the administrators' remuneration in that amount which was also carried on the voices. A resolution was also proposed by a creditor, and carried on the voices, fixing the deed administrators' remuneration in the amount of $100,000 plus GST with an additional amount of $30,000 plus GST for each additional year of the duration of the deed in pursuing the legal action against Origin Energy, capped at three years (Ex R1, p 14). 30Mr Laughton contends that the failure to disclose how the amounts of $390,000 plus GST and $175,000 plus GST were calculated in the report to creditors dated 9 February 2005 constituted a failure of the approval process. I do not accept that submission, where the content of discussion at the subsequent meeting is not established by the evidence and the extent of any further elaboration on these issues at that meeting is unknown. Mr Laughton also contends that the approval process has failed, relying on the reasoning of Finkelstein J in Korda, Re Stockford Ltd [2004] FCA 1682; (2004) 140 FCR 424, because there was not sufficient disclosure for the creditors adequately to approve the remuneration. However, that submission depends upon its premise as to the inadequacy of disclosure. That premise has not been established where the scope of discussion at the meeting and the extent of the information that was in fact provided to creditors has not been established. 31Mr Golding's evidence is that the administration lasted 73 working days at a total cost of $781,851 (including GST) or a cost of $10,710 per day including GST (Goldring 10.9.2014 [11]). Mr Laughton, in his opening outline of submissions, repeats the complaint that charges of $10,710 per day for the period of the administration were excessive. The calculation underlying that proposition appears to be correct, as a mathematical calculation, but it does not seem to me to establish that the costs incurred by the administrators were unreasonable, which must depend upon the extent of work which was required to be and was done and the responsibility and credit risk assumed by the administrators during the administration. The inference that those fees were excessive, rather than merely large, might of course more readily have been drawn had anyone suggested that was the case when they were approved, rather than nearly ten years later. Approval of the deed administrators' remuneration 32Mr Goldring gives evidence of fees charged during the deed administration, over the period from 2005 to 2011, and points to fees recorded in reports to creditors of $668,000, and an extra $100,000 claimed in respect of a matter referred to as the "Safcol claim" to which I will refer below. 33Both Mr Goldring and Mr Ingram give evidence of approvals of the deed administrators' remuneration at meetings held on 17 February 2005, 9 December 2005, 5 September 2007 and 3 March 2011. At the meeting of creditors on 17 February 2005, to which I have referred above, creditors resolved to execute the DOCA and the deed administrators' remuneration was fixed in the amount of $100,000 plus GST with an additional amount of $30,000 plus GST per annum for the period of the litigation, capped at three years. That approval was prospective and fixed. 34Mr Goldring also gives evidence, in general terms, that the deed administrators did not undertake work "near to the value of $30,000 per year" in the three years in which they were remunerated at fixed amounts of $30,000 per year, while the Company's litigation against Origin Energy was in its initial stages, and gives evidence that the litigation was controlled by the Company's directors and the deed administrators did not participate in running it. The administrators submit that this evidence can only be admitted as a matter of submission; Mr Goldring submits that it should be admitted as "primary evidence". It seems to me that it is a conclusory statement, not founded in any direct evidence of observations by Mr Goldring of the work that was in fact undertaken by the deed administrators and should similarly be admitted as a matter of submission only. Mr Goldring's evidence is also that he understood that, as a result of the resolution fixing an annual fee for three years of the conduct of the proceedings, no additional amount would be sought, because the fees were "capped" (Goldring 9.10.2014 [43]). It seems to me that that understanding was not well founded, both because creditors were not bound not to approve further fees and because the Court was itself entitled to approve further fees notwithstanding that initial fees had been "capped": Paul's Retail v Morgan above. It is also by no means apparent that creditors acted unreasonably in determining to approve such further fees, where the "capped" fees were approved in 2005 for three years and the litigation continued for many years thereafter. 35A further report by the deed administrators to creditors dated 22 November 2005 summarised issues in respect of the receivers and managers appointed to the Company and claims by the Australian Tax Office, Safcol Australia Pty Ltd ("Safcol") and the Australian Wheat Board. That report pointed to a lack of cooperation from the receivers as adding to the costs of the Company's administration and also indicated that reconciliation and payment of administration creditors was more complex than first anticipated, pointed to ongoing debtor collections and resolution of retention of title claims and sought approval from creditors of additional fees in the amount of $130,000 plus GST (Ex R2, p110). Approval for remuneration of $130,000 plus GST was given at that meeting on a prospective basis. 36A further report to creditors dated 21 August 2007 provided an update on the claim lodged by Safcol against the Company in an amount of approximately $4,250,000 (Ex R2, p117) and reported as to the settlement of that claim. That report also referred to dealings with the receivers (Ex R2, pp118-119) and indicated that: "As previously mentioned in this report, the lack of cooperation received from the Receivers and their unwillingness to cooperate with our requests in relation to execution of the Deed of Settlement and the subsequent release of receivership funds have added additional costs to the Administration of the Company. In addition, I advise that the process of settling the $4,259,248 claim lodged by Safcol which included additional investigations, meetings and discussions with Directors, solicitors, the Receivers and Safcol representatives, as well as negotiations regarding an agreeable settlement price and the drafting and execution of the Deed of Settlement has also added additional costs to the Administration of the Company." The deed administrators indicated that their costs had exceeded their initial estimate and sought approval for additional remuneration up to the date of a meeting of creditors on 5 September 2007 in the amount of $100,000 plus GST. The report provided a brief outline of work likely to be required to finalise the deed of company arrangement and sought approval of additional fees for that work in the amount of $60,000 plus GST (Ex R2, p120). Further approval was given for remuneration of $160,000 plus GST on a fixed basis at the meeting for creditors on 5 September 2007. 37Mr Laughton, in submissions, placed considerable weight on the Code of Professional Practice for Insolvency Professionals issued by the Insolvency Practitioners Association, as approved on 14 December 2007 (Ex A2). That Code provides that it took effect from 31 December 2007, at the same time as amendments to the Corporations Act which took effect on that date, to which I have referred above, but contemplated that practitioners would have any new systems required in place by 31 March 2008. That Code has no application to events prior to its effective date and, in the present case, there is evidence that creditors were provided with summaries of time costings from May 2008 (Ingram 9.10.2014 [8], Ex R2, p145) as the Code would contemplate. 38A further report to creditors dated 10 February 2011 referred to the requirements of s 449E(6) of the Corporations Act, which had now taken effect, as to the information to be provided before remuneration was fixed by creditors and to the requirements of the IPA Code of Professional Practice and indicated that the deed administrators would be seeking approval of creditors for further remuneration in the amount of $88,000 plus GST for services up to 4 February 2011 based on the relevant firm's hourly rates and that creditors would be also asked to approve additional remuneration from 7 February 2011 to the completion of the deed administration at that firm's hourly rates capped at a maximum amount of $100,000 plus GST (Ex R2, p130). The approval of $88,000 plus GST sought was retrospective and that approval for $100,000 plus GST was prospective in character. A detailed schedule setting out additional time costs incurred up until 4 February 2011 (inclusive) was also included in that report (Ex R2, p145) as was an outline of the major tasks that the deed administrator expected to complete to the conclusion of the deed of company arrangement and the estimated cost for those major tasks (Ex R2, pp147-148). 39The minutes of the meeting held on 3 March 2011 recorded the tabling of a summary of additional remuneration incurred up until 4 February 2011 and a schedule for creditors review. There was further discussion about the fees charged at a meeting of creditors on 3 March 2011. The minutes of meetings of creditors of 3 March 2011 (Goldring 10.9.2014, pp 93-97; Ex R1, pp39-43) record that Mr Goldring raised "numerous questions" regarding the deed administrators' request for further fees. Mr Ingram's evidence is also that Mr Goldring and Mr Strobl asked a number of questions in relation to the deed administrators' fees at the meeting held on 3 March 2011, but points out that Mr Goldring was the proponent of resolutions to approve the deed administrators' fees at that meeting in specified amounts. 40The minutes of the meeting held on 3 March 2011 record that Mr Goldring himself proposed the resolution that the additional remuneration of the deed administrators to 4 February 2011 be approved in the fixed amount of $88,000 plus GST and that resolution was carried unanimously (Ex R1, p42). A further resolution was proposed by Mr Strobl, and the creditors resolved at that meeting, that: "The remuneration of the Deed Administrators from 7 February 2011 to the completion of the Deed Administration be approved up to a maximum amount of $100,000.00 plus GST, calculated in accordance with the Hall Chadwick hourly rates as detailed in the report to creditors dated 10 February 2011 ("the base rate"), and as varied from time to time with such annual increases, if any, to be no greater than 10% of the base rate, and that the Deed Administrators be authorised to draw the remuneration on a monthly basis or as required, and that Mr Franz Strobl, Mr Mike Goldring and Ms Jenetta Russel be advised and approve (via email) any fees prior to the Deed Administrators drawing any fees." (Goldring 10.9.2014 p96; Ex R1, p42) It appears that resolution must have been passed by Mr Strobl, Mr Goldring and Ms Russel since Mr Goldring's evidence is that they were the only persons present at that meeting (Goldring 9.10.2014 [60]). 41Mr Goldring's evidence in his affidavit dated 9 October 2014 is that subsequent notification was not given to him in respect of the drawing down of fees pursuant to the resolution passed at the meeting of creditors on 3 March 2011. It seems to me that that matter supports an order for review limited to the fees approved at that meeting, since the basis on which they were approved does not seem to have been complied with. 42Further remuneration of the deed administrators was approved on 25 June 2014 of $47,829.26 including GST, without prejudice to the right to review, and an amount of $2,000 including GST was also approved on that date, being prospective and fixed in character. Mr Goldring's criticisms of particular aspects of the conduct of the administration and the deed administration 43Mr Goldring also advances several criticisms of the administrators' and deed administrators' remuneration that depend on a proposition that substantive matters in the administration should have been handled differently, including dealings with a UK supplier of a dough machine, and claims by the Australian Taxation Office, the Australian Wheat Board and Safcol. Mr Martin, who appears for the administrators and deed administrators, submits that a review of an administrator's remuneration is generally not a proper forum for the determination of substantive complaints as to the administrators' decision-making and refers to Re Anderson Group Pty Ltd; Mann v Anderson [2002] NSWSC 764; (2002) 20 ACLC 1607 and Re Vplus Superstores Pty Ltd (in liq) [2013] NSWSC 662 in support of that submission. 44I do not consider those authorities support that submission, at least if it is intended to suggest that misconduct of an administrator or deed administrator would be irrelevant to the assessment of his or her remuneration. In Mayne v Jaques [1960] HCA 23; (1960) 101 CLR 169 at 171, Fullagar J recognised, in the context of the then bankruptcy legislation, that a bankruptcy trustee might not receive remuneration for a reason such as misconduct. In Re Kal Assay Southern Cross Pty Ltd (in liq) (1992) 9 ACSR 245, Acting Master Hawkins observed that a liquidator was not entitled to remuneration for work done in breach of duty or for work that should not have been done. At the same time, in Re Palmer; Ex parte Taylor (1988) 18 FCR 271, Spender J pointed out (at 284) that it is "not correct that a person is entitled to be paid only if his work manifests no error or is without fault" and that "[s]uch a standard of perfection would be unworkable." 45In Re Anderson Group Pty Ltd; Mann v Anderson above, Barrett J (as his Honour then was) observed (at [12]) with reference to a liquidator's claim to remuneration, that: "In the ordinary course, the process of determination comes down essentially to ensuring that the work upon which the claim was based was work undertaken in the due course of administration and that the amount claimed for having done that work is a fair and reasonable reward for it." His Honour also observed (at [15]), with reference to authority, that unsatisfactory conduct, in the case alleged against a liquidator, is "something that can (and, in an appropriate case, should) be taken into account in fixing remuneration"; noted (at [24]) that a court charged with determining a fiduciary's remuneration would not be deaf to allegations that the fiduciary responsibility had not been faithfully performed; and (at 25]) (again by reference to the position of a liquidator) that: "Considerable care must, however, be exercised. A liquidator has, as I have said, an entitlement to be remunerated and it would not be right for all and any complaints of misfeasance to stand in the way of that unless there were seen to be substance to them." In Re Vplus Superstores Pty Ltd (in liq) above, I referred to several of the authorities noted above and similarly noted (at [12]) that: "a finding of unsatisfactory conduct by the Applicants, in the sense of conduct in breach of duty or involving serious failures or misconduct on their part, may affect their entitlement to remuneration." 46In his affidavit dated 10 September 2014, Mr Goldring criticises the conduct of the then administrators in respect of a contract between the Company and a supplier in the United Kingdom for the purchase of a dough mixer and contends that the administrators incorrectly recorded the amounts that were paid for the mixer and the amount that was still outstanding on it. He refers to his understanding of the correctness of the lesser amount which he contends was payable and annexes several documents which are said to support that view, and gives evidence that the mixer was ultimately purchased for an amount similar to an amount which he had advised one of the administrators' staff was payable to complete the purchase (Goldring 10.9.14 [19], [23]). Mr Goldring's evidence makes clear that his complaint in this regard is that, in his assessment, the deed administrators' adopted an inappropriate or misguided approach to resolving this issue, as a matter of substance. Mr Goldring also criticises the fact that one of the then administrators travelled to the United Kingdom with the then administrators' solicitor to address that issue, in circumstances that, he says, all that was required to secure a transfer of the contract for the dough mixer to the Company and shipment of that equipment was the payment of the balance owing to the supplier of the equipment (Goldring 10.9.14 [23]). Mr Goldring also submits that no accounting has been provided by the then administrators for the trip to the United Kingdom and that full accounts for that trip should be provided. Mr Goldring also criticises, possibly with justification, the fact that the Company was apparently billed for 10 hours each day in London at $4,500 per day for seven days by the then administrators' then solicitor. 47Mr Laughton in turn submits that the then administrator's and the solicitor's trip to the United Kingdom was unnecessary. I am not satisfied that this matter warrants an inquiry into the administrators' remuneration, either generally or in respect of that particular issue. First, it does not seem to me that Mr Goldring has established that the trip was unnecessary, where that proposition depends on a somewhat superficial account of the issues with the supplier of the dough maker. A conclusion that that trip was unnecessary would at least have required a detailed assessment of the then position as between that supplier and the Company and, and, had the detailed evidence relevant to such an assessment been led, would have raised issues as to whether the then administrators' assessment of the necessity or desirability of that trip was outside the range of a proper commercial judgment. Second, it does not seem to me that Mr Goldring has established that these matters have any impact on the then administrators' remuneration, where it appears that they were then remunerated on a fixed fee basis and not a time charging basis and it is not shown that their remuneration was affected by whether one of them did or did not travel to London to address this issue. Third, Mr Goldring's strongest criticisms of this trip seem to relate to disbursements, and particularly the fees charged by the administrator's solicitor in respect of that trip. However, as I will note below, a review of remuneration under s 449E of the Corporations Act does not extend to the review of disbursements incurred by administrators or deed administrators, such as legal costs. Fourth, the inferences for which Mr Goldring now contends might more readily have been drawn if any complaint that the trip was unnecessary had been raised in 2005, at or after the time the trip occurred, rather than nearly 10 years after the event, and while the administrator who undertook that trip was still in office, rather than being directed to his successors in office many years later. 48Mr Golding also refers to a claim by the Australian Tax Office against the Company. Mr Golding's affidavit gives an account of events in respect of the claim by the Australian Taxation Office, supported by a conclusory statement that there "was never any potential tax liability", and points to the resolution of the issue by mid-2005. Mr Goldring also refers to a claim by the Australian Wheat Board against the Company. Mr Goldring's evidence is that the claim by the Australian Wheat Board was settled in early 2005 and, he says, "resulted in little extra work for the administrators". These statements no doubt reflect Mr Goldring's understanding of these matters, but it seems to me that a contributory's perception that matters arising in an administration or deed administration were simpler than the administrators or deed administrators found them to be does not provide a strong basis for a review of remuneration. 49Mr Goldring also refers to the deed administrators' work in respect of a claim by Safcol and to an issue arising from the refusal of receivers and managers appointed by a secured creditor to the Company to provide documentation to the administrators until several months after their retirement or to release funds to the administrators because of a claim by Safcol against the receivers and managers, which he again states, in a conclusory fashion, "would have involved very little extra work". His evidence is that a deed of release was signed by Safcol in May 2007 - I interpolate, over two years after the deed administrators' appointment - and resulted in the release of funds by the receivers and managers to the administrators of $970,000 in June 2007. Mr Goldring also expresses his belief that, in effect, Safcol's claim was not justified and asserts that it "would never have reached the stage it did had it not been for the Company having the deed administrators appointed." He points to the proposition that the original claim was in excess of $4.2 million and was settled for $225,000, which he says: "The company directors believe should not have been agreed to but for the fact that to continue would have further delayed the Administration." Mr Goldring then expresses the view, again by a conclusory statement, that limited costs should have been incurred by the administrators in respect of these claims. Mr Goldring also criticises the delay between May 2007, on settlement of the Safcol claim, and August 2008, when a first distribution was made to creditors. This criticism depends on Mr Goldring's claim that the payment which he criticises could have been made more promptly, although he does not elaborate the factual basis for that claim. 50I do not doubt that Mr Goldring believes that the various claims against the Company were without substantial merit and could readily have been disposed of by the administrators or deed administrators without significant work or costs, and that they in fact did little of substance to address those claims. However, it does not seem to me that the evidence on which Mr Goldring relies, establishes, or raises a substantial question of, any matter involving misconduct or a breach of duty, unsatisfactory conduct or work that should not have been done so as to raise an issue that the administrators or deed administrators should not be remunerated for their work. It does not seem to me that those matters generally rise beyond the expression of Mr Goldring's opinion that matters were simpler and less time should have been required to address them than that which the administrators and deed administrators took. To the extent that a particular issue is raised in respect of one of the then administrators' trip to London in respect of the dough maker, it is not shown to impact on the then administrators' remuneration as distinct from their disbursements. I am not satisfied, on the somewhat limited evidence on which Mr Goldring relies, that he has established sufficient basis for the opinions he expresses to warrant a review of the administrators' or deed administrators' remuneration on this basis. Further submissions as to whether review of the administrators' and deed administrators' remuneration should be ordered 51In his written outline of submissions, Mr Laughton identified the basis on which Mr Goldring seeks a review of the remuneration of the administrators and deed administrators as, first, that the amounts claimed by the administrators and deed administrators were excessive and, second, that the decision-making process of creditors in approving the remuneration was said to have miscarried for a number of reasons. In oral submissions, Mr Laughton put Mr Goldring's primary position as that any deficiencies in the decision-making were themselves sufficient to establish a basis for review, although he indicated that Mr Goldring also sought to establish that an inference was available that there had been significant overcharging, without accepting that it was necessary for Mr Goldring to do so (T46). There seems to me to be a fundamental difficulty with an approach based on a challenge to the level of information provided to creditors in respect of the approval of remuneration, unless it is combined with the second proposition that the remuneration which was in fact approved is excessive. That difficulty is that, even if the level of information provided to creditors before they approved the remuneration was in some way deficient, unless there is some reason to think that, when the remuneration is referred to a registrar for review, it will be reduced, then the only consequence of referral to the registrar will be to waste the costs which both Mr Goldring and the administrators and deed administrators will incur in that process. That result arises because, even if the approval by creditors were deficient, if the administrators and deed administrators have in fact done the work which warranted the remuneration that was paid to them, then that remuneration will not be reduced when the matter is referred to the registrar for review. It therefore does not seem to me that Mr Goldring's first attack on the approval of the administrators' and deed administrators' remuneration would itself support a referral of that remuneration for review, unless it is combined with at least some evidence that the remuneration was excessive, the second basis on which Mr Goldring seeks that review. 52Mr Laughton relies on Korda, Re Stockford Ltd above to challenge creditors' ability to fix fees prospectively; however, that case was directed to an attempt to fix fees by reference to a rate or scale of charges, and Finkelstein J reached the conclusion, which I accept, that remuneration is not "fixed" by referring to time-based fees on a prospective basis, without any limit in time or without any cap on the fees. To the extent that the fees were "fixed" prospectively in this case, it was by reference to particular amounts and not in that manner. So far as approvals were prospective in nature, Mr Martin points out that further questions were not raised at subsequent meetings, and submits that the inference should be drawn that creditors were not of the view that the fees were unreasonable. 53As I noted above, Mr Laughton also refers to the observations of Finkelstein J in Korda, Re Stockford Ltd above at [47]-[49], where his Honour referred to the relevance of factors including the number of hours reasonably spent by the insolvency practitioner; a reasonable hourly rate; the quality of the work performed; the complexity in the administration; the novelty and difficulty of the issues that confronted the administrator; and the ultimate result obtained by him or her. His Honour also expressed the view that "[t]o have his fixed fees it will be necessary for the administrator to do more than simply state the amount of time and the rate to be charged for that time"; that the amount of detail to be provided in support of a claim must be proportionate to the size of the estate and the amount of time spent; and that, if the administrator asks creditors to fix his or her fees, then the information in support of that claim "may need to be more detailed than in an application to the Court" and that, the greater the detail presented to the creditors, the easier their task will be. 54On the other hand, Mr Martin pointed out that the Explanatory Memorandum to the Corporations Amendment (Insolvency) Bill 2007 (paragraph 4.92) proceeded on the basis that, prior to the amendments made by the Corporations Amendment (Insolvency) Act, there was no requirement for insolvency practitioners to provide information which would enable creditors to determine the reasonableness or otherwise of the proposed rates and that such a requirement was introduced by the 2007 amendments. Mr Martin fairly accepted that that statement may need to be qualified by codes of conduct which then applied to administrators, and possibly also that, to the extent that an administrator's position is characterised as of a fiduciary character, he or she may need to provide sufficient information to creditors to obtain ratification of his or her remuneration, so far as it would be a profit made from his or her fiduciary office. It is not necessary to decide that question for the purposes of this application. I have referred above to the information that was in fact provided by the administrators and deed administrators to creditors prior to their approval of their remuneration at the relevant meetings. 55Mr Laughton submits that the failure of the administrators and deed administrators to account for and disclose the charges, including hourly rates, personnel involvement, time sheets and records generally which demonstrate the quantum of the administrators fees is sufficient for an order that their remuneration be reviewed. Mr Laughton also submits that a review is justified because matters such as who performed the work, the rate at which that person or persons were charged out, the hours spent by each person and on what those persons were working in the administration have never been disclosed. I do not accept those submissions. The discretion whether to order such a review must be exercised having regard to the information that was in fact provided to creditors, to which I have referred above, the period of time which has passed since the work undertaken, and the absence of complaint by Mr Goldring, other contributories or creditors over that period. Mr Laughton also submits that no supporting documents have been provided by the deed administrators to demonstrate that the amounts approved, of "up to" a particular amount, have been fully expended and that no documents have been provided by the deed administrators to demonstrate that the amount claimed, over and above the fixed or capped amounts, were fair and reasonable. The difficulty with that submission, it seems to me, is that the question initially to be addressed by the Court is whether a sufficient basis exists to order a review of the administrators' or deed administrators' remuneration, and it is not necessary for the administrators or deed administrators to justify that remuneration unless and until some basis for a review of it has been established. 56Mr Laughton also refers to an observation of Finkelstein J in Korda; Re Stockford Ltd above referring to a "widespread belief" that there is overcharging by administrators and liquidators that has led to numerous reports. There have, of course, been further reports addressing similar issues, including a major inquiry by the Senate Economics Committee and proposals for legislative reform since that date However, the proposition that there is such a widespread belief, or the further proposition that there are occasions on which that belief is justified, does not have the consequence that an applicant for review in any particular case can proceed on the basis that all administrators and deed administrators overcharge for their services or that a review of remuneration should be ordered in any particular case on request. 57The approval of remuneration by the creditors and the passage of time are also of particular significance in this case. In Paul's Retail v Morgan above at [84]-[85], where remuneration was approved, albeit in that case on a discounted basis, after the relevant work had been completed, Barrett J declined to order review. His Honour observed (at [85]) that: "I am not satisfied that, in those circumstances, the Court should embark on a review. The circumstances themselves leave no room for a possibility that the remuneration determined by resolution of creditors for past services was not a fair and reasonable remuneration. There was informed and free consent on both sides to the particular quantum." I do not read that observation as establishing a proposition of law that review is not available in respect of remuneration which was retrospectively approved by creditors, after disclosure of the amount for which approval was sought, and the administrators also did not seek to read it in that manner. However, that observation does emphasise the significance of informed consent of the creditors to particular work, after it has been undertaken, and that significance must be greater where that consent has stood undisturbed for a substantial period of time. It seems to me that, notwithstanding Mr Goldring's criticisms of the information provided to creditors to obtain their approval of remuneration, it was sufficient to disclose the substance of the work done and to obtain voluntary and informed consent. Mr Martin also emphasised the significance of the passage of time in the present case, by asking the rhetorical question how it would be just for a review to occur where creditors voting in favour of a resolution have inspected or considered such documents provided by the administrators, by way of reports to creditors or tabled at meetings, to attend the relevant meetings, to ask any questions which they wished to ask or raise any issues that they wished to raise and have then voted in favour of the resolutions, and where one of those creditors, in his capacity as a director, now seeks a review of the decision-making process in which he participated or, more precisely, the approvals which he appears largely to have supported, or at least not to have opposed. 58Mr Martin points out that, to the extent that review is sought on the basis that the administrators had not advised matters such as hourly rates and the particular personnel involved at creditors meetings, it was open to creditors and contributories to seek such information at such meetings, if they considered it was relevant. He submits, correctly, that the administrators' reports had made clear that, at least in respect of prospective estimates, they were not based on hourly rate calculations but were, as they would necessarily need to be, an estimate of the remuneration which would be attributable to the work which the administrators expected to perform. 59Mr Martin submitted that the power of review ought not be available to a party who subsequently seeks to invoke it, where that party had changed his or her mind in relation to matters going to fees, which were earlier ventilated and about which no complaint was made at the time (T54). He points out that each of the relevant fee resolutions was carried by the creditors on the voices, and the last of the resolutions in early 2011 was moved by Mr Goldring and passed unanimously. Mr Martin points to Mr Goldring's own explanation of why he did not previously raise matters as indicating that those matters could have been raised previously, but were not "for whatever reason" (T54). Mr Martin accepted that, although that matter was not an absolute bar to a review, it was a matter to which the Court ought to have regard in exercising its discretion (T55). Treatment of disbursements in the administration and deed administration and total amounts incurred 60Mr Goldring's evidence is also that he understood that fee approvals included the administrators' disbursements, but that legal costs and disbursements were billed separately and additionally to the administrator's fees and disbursements. It does not seem to me that this proposition takes the attack on the administrator's remuneration further, where it is not demonstrated that Mr Goldring had any particular basis to hold that understanding. Mr Goldring's evidence is that legal fees as at 23 May 2005 were $216,359.97 and disbursements were $2,357.43 (Goldring 10.9.2014, p75), although the date at which this calculation is undertaken indicates that it is likely to include fees incurred by the deed administrators. Mr Goldring's evidence is that no details have been provided as to how those legal fees and disbursements were made up, and that legal fees paid by the Company during the administration have not been the subject of any detailed breakdown as to the nature of work performed, who performed the work and the chargeout rate of each person who performed the work (Goldring 10.9.2014 [15]). 61Mr Laughton referred to the observations of Finkelstein J in Korda; Re Stockford Ltd above as to disbursements and the steps which should be taken by an administrator in appointing solicitors and reviewing their charges and the Court has also recently considered that issue in Re Joe & Joe Developments Pty Ltd (subject to a Deed of Company Arrangement) [2014] NSWSC 1444. However, these matters do not support an order for review of the administrators' remuneration under s 449E(2) of the Corporations Act, which is not directed to review of disbursements: Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96. Any suggestion that disbursements were not properly incurred would need to be addressed by an application under s 447E of the Corporations Act of the kind considered in Re Joe & Joe Developments Pty Ltd above. That distinction is not merely formal since there is a substantive difference between a review of remuneration on the one hand and an inquiry into an administrator's conduct in incurring or approving disbursements on the other. 62Mr Goldring also identifies "further questions" as to miscellaneous disbursements including, for example, $500 of disbursements by way of parking vouchers in the fifteen month period from October 2009 to December 2010, when he suggests no travel was, to his knowledge, recorded by the administrators (Goldring 9.10.2014 [32]). Mr Goldring's evidence is also that, during the administration and deed administration, a total of approximately $5 million was repaid to creditors and that receivers and managers' fees, administrators' fees and deed administrators' fees and disbursements totalled approximately $2.5 million. The difficulty with this comparison is that, first, it includes receivers' and managers' fees for which the administrators and deed administrators cannot be held to account and, second, as I noted above, disbursements are not within the scope of an application under s 449E of the Corporations Act. Summary and Orders 63I am not satisfied, for reasons set out in my review of the particular approvals of remuneration and my summary of the parties' submissions above, that it is just for a review of the administrators or deed administrators' remuneration to be ordered, other than in respect of the remuneration of $100,000 approved at the meeting in March 2011. I am satisfied that an order for review should be made, limited to that remuneration, for a more limited reason. 64In summary, I take that view in respect of the administrators' remuneration because the administrators had disclosed the basis on which their remuneration would be sought from at least their initial report to creditors in November 2004 and no case has been shown that their remuneration to early 2005, while large, was potentially excessive, where they were managing a manufacturing business which was still operating and trading and apparently providing funding for it to do so. The management and funding of a continuing manufacturing business were, having regard to the factors that the administrators identified as relevant to their remuneration, matters that involved significant skill, responsibility and risk on their part. The information provided to creditors who approved their remuneration provided a summary of the work done, at a time the extent and value of that work was likely to be apparent to creditors and was approved without objection. 65I take that view in respect of the large part of the deed administrators' remuneration because the deed administration continued over a long period. The remuneration charged is not self-evidently excessive; information was provided to creditors who approved that remuneration, at a time when the value of the work done was likely to be apparent to them; and the facts that creditors and Mr Goldring did not object to that remuneration for an extended period, and that review is now sought of the remuneration of deed administrators who have retired from office, are strong discretionary factors tending against review. Mr Goldring's criticisms of the particular work done in dealing with particular claims do not seem to me to rise beyond conclusory assertions that depend upon the correctness of his perception, with hindsight, of the lack of merit or simplicity of claims against the Company and are in any event not matters to be addressed in applications of this kind, so far as they challenge the substance of the work done and not the reasonableness of the remuneration claimed for it, and his challenge to disbursements are also not properly the subject of an application of this kind. 66I take a different view in respect of the remuneration approved in March 2011 only because of the issue as to the apparent failure to obtain the particular creditors' approval before the monthly remuneration was paid, as was contemplated by creditors' approval of that remuneration. It is, however, an open question whether a review of that remuneration by the Registrar, if pressed by Mr Goldring, will lead to a reduction of it. 67I therefore order, under s 449E of the Corporations Act, that a review be undertaken by the Registrar limited only to fees comprising a maximum amount of $100,000 approved at the creditors' meeting on 3 March 2011. 68I will hear the parties as to the costs of this application, if they consider that the additional costs of argument as to that matter are warranted.