Carpenter v Pioneer Park

Section 477(2B) application

1. As I have said, the first of the applications is an application for the relief sought in prayer 6 of the first of the two interlocutory processes. Mr Goyal has explained in his third affidavit at [9]-[14] that, through an exchange of correspondence between the solicitors for the Brian Murdoch Interests and the liquidators' solicitors, the terms of the indemnity and security have now been agreed.
2. In summary, those terms are that, upon settlement of the sale of a property in Mudgee (completion of which is expected imminently), Brian Murdoch will arrange for the sum of $150,000 to be paid into his solicitors' trust account. His solicitors will provide a written solicitor's undertaking in favour of Clayton Utz and the liquidators, stating that the trust funds will be held by the Brian Murdoch solicitors until the determination of the cross appeal. The terms further state that the Brian Murdoch solicitors will immediately cause so much of the trust funds that correspond with any adverse cost order made against the liquidators or the company in respect of the cross appeal to be transferred to an account nominated by the liquidators. The terms are also that Brian Murdoch consents to the liquidators lodging a caveat on the title of the property, any such caveat to be removed prior to the settlement. I am informed that such a caveat has been lodged on the title of the property.
3. Correspondence has been sought from Brian Murdoch on 28 May 2021 seeking confirmation of his acknowledgment and consent to the lodgement of the caveat, as well as his consent to such a lodgement constituting the grant of an equitable charge over the property in the value of $150,000 to secure the indemnity.
4. The liquidators have indicated that, subject to approval under s 477 (2B) of the Corporations Act, they will agree in principle to the arrangement and agree to approach the Court to obtain that approval. The caveat was lodged on 17 June 2021.
5. On 16 July 2021 settlement of the sale of the property occurred. A withdrawal of caveat has been lodged on the PEXA system.
6. Mr Goyal has deposed that the liquidators are of the view that the agreement in relation to the provision of the indemnity and securities is likely to be of more than three months duration, due to the time required for the appeal and cross appeal to be heard and determined in light of the factual and legal complexity of those appeals (see his third affidavit at [13]). It is the liquidators' view that the agreement will not extend the duration of the liquidation, as the liquidation cannot be completed until the appeal and cross appeal have been heard and determined. The affidavit affirmed that the liquidators are satisfied with the indemnity and security on the basis that the security is independent of Brian Murdoch's interests in the property.
7. The liquidators submit that s 477(2B) is engaged for two reasons. First, because the terms of the agreement make it clear that the liquidators are entering into it on behalf of and for the benefit of the company, and the liquidators consider that the better view is that approval is required under the section (referring to Re Lewis (as Liquidators of Concrete Supply Pty Ltd (in liq) (ACN 007 848 580)) (2020) 145 ACSR 459; [2020] FCA 841 at [17] to [20]) and, second, because the agreement is likely to be of more than three months' duration.
8. The test for approval under s 477(2B) as explained in Re Lewis at [16] includes, as a primary consideration, the impact of the agreement on the duration of the liquidation and whether that impact is reasonable. The settlement is to be made having regard to the purposes for which the liquidators' powers exist and the Court in giving approval by way of permission for the liquidators to exercise their commercial judgment. Generally, approval is not refused unless some lack of good faith of error of law or substantial reason to doubt the liquidator's prudence can be shown and the Court may refuse the approval if the terms of the proposed agreement are unclear.
9. The liquidators submit that approval should be granted for the agreement for the following six reasons.
10. First, that the liquidators have already obtained a direction that they would be justified in not opposing Brian Murdoch's application for leave to bring the cross appeal, provided Brian Murdoch agrees to provide the indemnity and security for cost of the cross appeal (see the judgement of Williams J).
11. Second, that the liquidators are satisfied with the indemnity and security on the basis that the security is independent of Brian Murdoch's interests in the company and is therefore not contingent in any respect from the outcome of the of the liquidation. (See Mr Goyal's third affidavit at [14].)
12. Third, that from the exchange of correspondence the terms of the agreement are clear.
13. Fourth, that the appeal and cross appeal are likely to take more than three months to be heard and determined in circumstances where the application by Brian Murdoch for leave to appeal has not yet been determined and there is no hearing date for the appeal, and if leave is granted, the cross appeal has not been fixed.
14. Fifth, that because the duration of the agreement is coterminous with the duration of the appeal and cross appeal, it is submitted it will not extend the duration of liquidation.
15. Sixth, that the agreement is in the form that has been indicated as appropriate where a person seeks an order in the Court's inherent jurisdiction entitling that person to bring proceedings on behalf of a company in liquidation, reference being made to Carpenter v Pioneer Park (2008) 71 NSWLR 577; [2008] NSWSC 551 where Barrett J, as his Honour then was, considered the jurisdiction to grant leave to a contributory to bring appeal proceedings on behalf of a company in liquidation. His Honour noted that the Court's attention, in considering whether to exercise its discretion in those matters, should focus on whether the proceedings proposed to be pursued have some solid foundation, in that they exhibit such a degree of merit as to be neither vexatious nor oppressive and to present reasonable prospects of success; and that the Court should consider the attitude of the liquidator and, third, question whether practical considerations support the initiation of the proceedings with particular reference to financial protection of the liquidator and the estate of the company by means of the indemnity. (See [32]-[34] of his Honour's reasons.)
16. Reference is also made by the liquidators to Challis v Hoffman and Others (2017) 121 ACSR 585; [2017] NSWSC 870 at [128]-[139]; [147].

Determination

1. I am satisfied that leave should be given pursuant to s 477(2B) in the circumstances for the agreement entered into in relation to the indemnity and security to be provided, broadly for the reasons that have been set out in the liquidators' submissions. It is plain that it is in the interests of the company for the matters sought to be agitated in the cross appeal to be determined, because if successful, this will provide a favourable financial outcome to the company, and if not, the company's position is sufficiently protected by reason of the indemnity and the security arrangements that have been provided. Therefore, I will make the orders approving the application for leave under s 477(2B).

Remuneration application

1. The second of the matters before me is the remuneration application. The amount of the remuneration sought is some $1,356,245 excluding GST. It is relevant to note that Mr Goyal has deposed in his fourth affidavit at [39] that all known unrelated creditors (that is creditors other than the two main stake holders Brian and Robert Murdoch, and other than ongoing trade creditors who are continuing to be paid), have been paid in full. There have been no meetings of the creditors and there is no committee of inspection. Accordingly, it is accepted by the liquidators that it is necessary for them to seek Court approval of their remuneration pursuant to s 60-10(1) of the IPSC.
2. The relevant principles on such an application are contained in s 60-5 of the IPSC and in Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr (2017) 93 NSWLR 459; [2017] NSWCA 38 at [54]-[60] per Bathurst CJ, with whom Beazley P (as Her Excellency then was), Gleeson JA, Barrett AJ and Beach AJ each agreed. A liquidator is entitled to receive remuneration for necessary work properly performed in relation to the liquidation in accordance with the remuneration determinations. If no such determination is made, the liquidator is entitled to receive reasonable remuneration for the work which must not exceed the maximum default amount.
3. As outlined in Sanderson, the onus is on the liquidator to establish that the remuneration is reasonable, and it is the Court's function to determine the remuneration by considering the material provided and bringing an independent mind to bear on the relevant issues. While the question of proportionality is a well-recognised factor in considering the question of reasonableness, the Court must consider the work done by the liquidator, whether it was reasonable to carry out and the appropriateness of the amount charged for it, noting that a time-based calculation will not always be appropriate.
4. Reference is also made by the liquidators to the decision of Williams J, In the matter of Tianda Ore (Australia) Pty Ltd [2020] NSWSC 1846 (Tianda) at [27], in relation to the fact that notwithstanding the usefulness of proportionality as a matter of reasonableness it is still necessary to consider the work actually done and whether the amount charged for the work was proportionate to the difficulty and complexity of the task performed, and reference is made to what was said by Black J, In the matter of Fearndale Holdings Pty Ltd (in liq) (recs & mgrs apptd) [2020] NSWSC 901 at [38].
5. The remuneration here sought is for the period from 8 December 2020, the date of the appointment of the liquidators, to 4 April 2021. The liquidator, Mr Goyal has deposed in his fourth affidavit to the work that has been carried out since the appointment of the liquidators on the basis on which the application has been brought. Mr Goyal has deposed at [12] of that affidavit to the fact that the liquidators have chosen to seek approval for the liquidation period, being approximately four months, rather than making more frequent remuneration applications with a view to reducing legal costs incurred in this matter.
6. Mr Goyal has deposed at [10] that on the date of appointment of the liquidators, the books and records of the company indicated that the company had total assets of approximately $18.62 million as set out in 10 to (f) of his affidavit but that, since the date of appointment, the liquidators have obtained valuations of the company's assets which indicate that the overall assets of the company are likely to exceed and perhaps substantially exceed the sum of $18.62 million.
7. The remuneration has been calculated by the liquidators classifying their work performed into six categories: work performed by the liquidators in the liquidation of the company related to the sale of the company's business and assets; work performed by the liquidators in relation to creditors and shareholders of the company; work performed related to employees; work performed related to the ongoing trade of the business; work performed in relation to administration risk mitigation and legal issues, including the legal issues relating to the appeal and cross appeal; and work performed in relation to statutory compliance. Further detail of those amounts are provided in Mr Goyal's fourth affidavit and there is a remuneration schedule which summarises the work carried out in respect of each of the six categories and the hourly rates of the persons who have performed tasks in relation to the liquidation.
8. Attention has (quite properly) been drawn to the fact that the initial remuneration notice issued on 23 December 2020 pursuant to s 70-35 of the Insolvency Practice Rules estimated the total cost of the liquidation as being approximately $1.2 million. The liquidators note that this was based on their limited knowledge of the company at that time and Mr Goyal has provided an explanation in his affidavit as to why that estimate has proven to be incorrect.
9. It is noted (and Mr Goyal deposes at [17] of his fourth affidavit) that as at the date of the affidavit, the liquidators had not received any objections from the company's stake holders in relation to the method by which the remuneration for work performed by the liquidators in the liquidation of the company would be calculated. Exhibit C on the present application includes correspondence from the solicitors acting both for Robert Murdoch and for Brian Murdoch respectively indicating that neither wishes to appear or be heard in relation to the application for approval of remuneration sought by the liquidators.
10. I have been taken to the updated reports provided by the liquidators in which progressively there has been a revision and update of the estimated remuneration of the liquidators. In particular, I note that in a statutory report provided on 8 March 2021, the estimate was revised to a total estimate of approximately $2.25 million exclusive of GST and the report noted the reasons why the cost of conducting the liquidation was anticipated to exceed the initial estimate, there being a number of reasons provided in that report. (I do not need to set those out in these reasons.)
11. A subsequent update in relation to the cost was provided in the third shareholder update for the period 3 February 2021 to 8 April 2021 where it was said that the liquidator remuneration for the relevant period up to 4 April 2021 was $1,360,002.50 exclusive of GST with a breakdown of annexure B. It is noted that the amount here sought is slightly less than that amount.
12. The liquidators submit that the remuneration sought is reasonable for the following seven reasons.
13. First, that each of the tasks explained in Mr Goyal's fourth affidavit and the remuneration schedule is work necessary and properly performed in the context of the liquidation. It is submitted (and I accept, having reviewed the schedule), that no item of work described by the liquidators raises any doubt as to its appropriateness or necessity in the context of the liquidation.
14. Second, reference is made to the evidence of Mr Goyal and in relation to the fact that the company operates a complex and specialised business across a number of sites. It is submitted that the liquidators and their staff have had to undertake a very wide range of time-intensive tasks, many of which require a considerable onsite presence by the liquidators and their staff, and it is noted the liquidators have continued to trade business of the company and that all creditors continue to be paid in full.
15. Third, reference is made to the reasons set out in Mr Goyal's fourth affidavit at [35] as to why the estimated total remuneration for the liquidation has increased and it is submitted that those reasons demonstrate the complexity of the liquidation and substantiate the amount of remuneration sought for the remuneration period.
16. Fourth, there is reference by the liquidators to the high degree of disagreement and antipathy between the directors and shareholders of the company, being the two Murdoch brothers, Robert Murdoch and Brian Murdoch. (See Mr Goyal's fourth affidavit at 35.) It is said that the reasons of Black J when appointing the liquidators (and the circumstance in which the appointment of the liquidators was required) was the breakdown in the relationship between the major stakeholders in the company. The liquidators expect this will increase the burden of the liquidators in the conduct of the liquidation.
17. Fifth, Mr Goyal has expressed the view at [22] of his fourth affidavit that the work was necessary and properly performed; the time spent was reasonable and that it was carried out by staff with an appropriate level of seniority. Mr Goyal has deposed that the least complex work was delegated to more junior members of staff in an attempt to save costs throughout the liquidation.
18. Sixth, it is noted that the assets of the company are of considerable value. As I have indicated above, books and records of the company at the time of appointment indicate total assets of $18.62 million and of those, there were ten unencumbered real properties. I have also noted that Mr Goyal expects that the value of the assets is well in excess of $18.62 million by reference to the value, among others, of those unencumbered real properties.
19. Finally, it is said that the vast bulk of the remuneration relates to two categories of costs of work performed: work performed in relation to assets where costs of $471,602.50 have been incurred and where costs in relation to the trading of the company were $570,922.50. It is submitted that those costs are necessarily and properly incurred, first in preparing business and assets for sale (which is necessary in circumstances where the relationship between the directors has irretrievably broken down) and second, in circumstances where the highly specialised nature of the company's business means that there are numerous challenges for the liquidators to face in continuing to trade the company's business on a day to day basis.
20. I am satisfied that the remuneration is reasonable and should be approved in accordance with the principles set out in Sakr.

Notification of application

1. There is an issue as to dispensation with requirements under the Supreme Court (Corporations) Rules 1999 (NSW). The liquidators seek an order by prayer 2 of their interlocutory process for dispensation from the requirements under rule 9.2 sub rule 2 of the Rules relating to the giving of 21 days' notice of the remuneration application.
2. It is accepted that 21 days' notice of the remuneration application has not been given in accordance with the rules. However, reliance is placed on Mr Goyal's evidence that all creditors have been or are in the process of being paid in full, other than the stakeholders and the only persons with any particular interest in the application (Robert Murdoch and Brian Murdoch), who have been provided with regular updates as to the liquidators' remuneration and whose solicitors were served with the remuneration interlocutory process and the evidence in support on 18 June 2021, as already noted by letters respectively dated 14 July 2021 and 15 July 2021. The solicitors on behalf of Brian Murdoch and on behalf of Robert Murdoch have indicated no opposition (and no intention to be heard) in relation to the application for remuneration.
3. I accept that it is appropriate in those circumstances to dispense with the requirement for service of the application within 21 days of the application being made.
4. In respect of prayer 3 of the remuneration interlocutory process, there is an issue as to notification of ASIC. It is submitted that notification of ASIC is not required under rule 2.8 of the Rules because the remuneration application is brought under s 60-10 of the IPSC, not ss 90-15 and 90-20. Reference is made in this context to Tianda where Williams J at [16] and [17] made reference to difficulties in proceeding with the liquidator's claim for relief in the interlocutory application in that case, because ASIC had not been notified of the application contrary to rule 2.8 of the Supreme Court (Corporations) Rules in respect of an order regarding distribution of surplus under s 90-15(3)(a) of the IPSC, but where no question of notification arose in relation to the remuneration application bearing issue.
5. The liquidators in this case however submit that if, contrary to their submission that ASIC was not required to be notified, there was a requirement for such notice, then dispensation with the requirement should be granted given that the two persons interested in the application have been notified and have indicated that they do not oppose the orders sought.
6. It is noted that Williams J dispensed with such an order on 12 April 2021 on that basis that all parties interested had been notified and given an opportunity to be heard; see In the matter of Mudgee Dolomite & Lime Pty Ltd (No. 4) [2021] NSWSC 393 at [18] and although it is said that case differed as notification was there required, it is said that the same reasoning was applicable here.
7. In circumstances where the main stake holders have been notified of the application and have indicated no opposition to the application, I am satisfied that I should dispense with the requirement for notification of ASIC if that be necessary.
8. Accordingly, for those reasons I make orders in accordance with the Short Minutes of Order which I will initial and date.

Schedule SHORT MINUTES OF ORDER 1. Pursuant to rule 6.24 of the Uniform Civil Procedure Rules 2005 (NSW), Jennifer Nettleton and Rahul Goyal in their capacity as joint and several liquidators (Liquidators) of Mudgee Dolomite & Lime Pty Limited (in liquidation) ACN 076 313 034 (Company) be joined as the second plaintiffs in these proceedings. 2. Pursuant to s 477(2B) of the Corporations Act 2001 (Cth), the Liquidators have approval to enter into, on behalf of the Company, an agreement in the terms set out in the supporting affidavit of Rahul Goyal affirmed on 18 June 2021 with the second defendant in relation to the second defendant providing indemnity and security in respect of any fees, costs (including adverse costs orders), expenses and liabilities incurred by the Company or the Liquidators in connection with the cross appeal proposed to be brought by the second defendant in proceedings 2020/00346991 in the Court of Appeal. 3. Pursuant to s 60-10(1)(c) of the Insolvency Practice Schedule (Corporations) that is Schedule 2 to the Corporations Act 2001 (Cth), the Liquidators are entitled to receive remuneration of $1,356,245.00 (excluding GST) for work performed in the liquidation of the Company from the period 8 December 2020 to 4 April 2021. 4. The requirements under rule 9.2(2)(a)-(d) of the Supreme Court (Corporations) Rules 1999 (NSW) to notify certain parties of the Liquidators' application for a remuneration determination be dispensed with, to the extent that the Liquidators have not already complied with those requirements. 5. The requirement under rule 2.8(3) of the Supreme Court (Corporations) Rules 1999 (NSW) to notify ASIC of an application under s 90-20 of the Insolvency Practice Schedule (Corporations), if applicable, be dispensed with. 6. The Liquidators' costs of their applications for: 1. order 2 above; and 2. orders 3 to 5 above, be costs in the liquidation of the Company. 1. These orders be entered forthwith. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 August 2021