Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth

Supreme Court of NSW|2022-08-01|Before: Williams J

Introduction

The second plaintiff, Fellmane Pty Ltd (in liq) (the Company), was previously the trustee of the Battaglia Family Trust (the Family Trust). Upon being removed as trustee shortly before it was wound up, the Company was a bare trustee of the sole asset of the Family Trust, being a property at Gerroa in New South Wales (the Gerroa property).
The first plaintiff, Mr Brendan Copeland, is the liquidator of the Company and the court-appointed receiver and manager of the assets and undertakings of the Family Trust. Where it is necessary to distinguish Mr Copeland's roles, I will refer to him as the Liquidator or the Receiver as the case may be.
By amended interlocutory process filed on 24 June 2022, Mr Copeland seeks: 1. an order determining his remuneration in his capacity as Receiver and in his capacity as Liquidator for the period from 24 August 2021 to 14 June 2022 in the sum of $59,292 (excluding GST) and for the period from 15 June 2022 until the conclusion of the receivership of the Family Trust and the winding up of the Company in the sum of an amount not exceeding $20,000 (excluding GST); 2. an order he pay from the remaining assets of the Family Trust (after his costs, expenses and remuneration fixed by the Court), specified amounts to the admitted creditors of the Company in its capacity as trustee of the Family Trust as a final distribution; 3. an order that he file with the Court his final account as Receiver within eight weeks; and 4. an order that, upon the completion of the distribution and the filing of the final account referred to above, he be discharged as Receiver and, together with his employees and agents, released from any liability arising out of or in connection with his appointment as Receiver.
Following a hearing on 1 August 2022, I made orders in substantially the terms sought on the basis that I would publish my reasons later. These are those reasons.

Background

The following account of relevant background matters draws heavily on the helpful written submissions of counsel for the plaintiffs dated 25 July 2022 and the evidence referred to therein.
The Company acted as: 1. the trustee of the Family Trust until 13 March 2019 when it was removed as trustee and replaced by Batfamt Pty Ltd (Batfamt); 2. the trustee of the Battaglia Family Superannuation Fund (the Super Fund); and 3. the trustee of the Vince Battaglia No. 2 Family Trust (the No. 2 Trust).
The Company did not trade, carry on business or own any assets in its own right.
In proceeding 2016/109679 in this Court, SX Projects Pty Ltd (in liq) (SX Projects) sued the Company to recover as voidable transactions certain payments that it made to the Company as trustee of the Family Trust. The Court held that those payments were voidable transactions under s 588FE of the Corporations Act, having been made for the benefit of (relevantly) the Family Trust, and that an order should be made under s 588FF requiring the Company to pay to SX Projects an amount equal to the payments: SX Projects Pty Ltd (in liq) v V Battaglia [2018] NSWSC 1830, especially at [60]-[61]. On 11 December 2018, judgment was entered against the Company in favour of SX Projects in the sum of $1,596,505.02 (being the total amount of the payments plus pre-judgment interest in the sum of $223,318.53). The Court also made a costs order in favour of SX Projects against the Company and the other defendants to the proceedings, jointly and severally. I will refer to these proceedings as the 2016 proceedings.
On 20 March 2019, the Company was wound up in insolvency and Mr Copeland was appointed as Liquidator by order of the Federal Court of Australia on the application of SX Projects as petitioning creditor. The Federal Court made an order that the petitioning creditor's costs be fixed in the amount of $8,049.64 and reimbursed in accordance with s 466(2) of the Corporations Act 2001 (Cth). I will refer to those proceedings as the winding up proceedings.
As I have already mentioned, the Company was removed as trustee of the Family Trust and replaced by Batfamt on 13 March 2019. However, the Gerroa property (being the sole asset of the Family Trust) was not transferred to Batfamt and remained registered in the name of the Company. Thus, from 13 March 2019, the Company held the Gerroa property as bare trustee with an obligation to transfer it to Batfamt as the new trustee of the Family Trust, if and when called upon to do so.
On 13 June 2019, the Court made orders appointing Mr Copeland as receiver and manager of the assets and undertakings of the Family Trust with powers that included doing all things necessary or convenient to: 1. sell and convert into cash any property or asset of the Family Trust; 2. enable the Receiver to realise Family Trust assets to enforce the Company's right of indemnity as former trustee of the Family Trust; 3. enable Mr Copeland to recover the costs of the receivership and the general costs of the liquidation of the Company; 4. distribute the proceeds of sale of assets of the Family Trust (after payment of the costs, expenses and remuneration of the Receiver and the Liquidator) to any creditors of the Company in its capacity as trustee of the Family Trust; and 5. distribute any surplus thereafter to the beneficiaries of the Family Trust.
However, the Court made an order that the Receiver not make any distribution of the proceeds of realisation of assets of the Family Trust to the creditors of the Company or the beneficiaries of the Family Trust without further order or direction of the Court.
Mr Copeland has not been appointed as receiver and manager of the assets and undertakings of the No. 2 Trust or the Super Fund.
Mr Copeland's investigations have established that the Company's assets as at the date of winding up comprised: 1. the Gerroa property, held on bare trust as referred to above; and 2. a small amount of money held in the Company's bank account on trust for the Super Fund.
Mr Copeland's investigations have also established that the Company's debts comprise: 1. the following debts owed to SX Projects: 1. the judgment debt of $1,596,505.02 in the 2016 proceedings; 2. post-judgment interest on that judgment debt up to the date of winding up of the Company; and 3. costs ordered against the defendants in the 2016 proceedings for which the Company is jointly and severally liable to together with the other defendants; 1. the following debts owed to the Commissioner of Taxation: 1. capital gains tax of $365,879.19 in respect of the sale of the Gerroa property (including a small general interest charge); and 2. $6,780 payable under a penalty notice issued to the Company in its capacity as trustee of the Family Trust for failing to lodge an income tax return for the years ending 30 June 2009 to 2017; 1. potentially, a debt of $482,736.45 claimed by Mr Peter Hillig as liquidator of ACN 092 745 330 Pty Ltd (in liq) which, if incurred by the Company, was incurred in its capacity as trustee of the No. 2 Trust, as referred to in more detail below.
In December 2020, the Receiver sold the Gerroa property for $4,350,000, of which $1,462,175.52 was paid to discharge the mortgage registered on the title.
On 18 October 2021, the Court ordered that Mr Copeland's remuneration in his capacity as Receiver and in his capacity as Liquidator be fixed in the amount of $289,245.26 (including GST) in respect of the period from 20 March 2019 until 23 August 2021 and be paid from the assets of the Trust: Re Fellmane Pty Ltd (in liq) [2021] NSWSC 1346.
After payment of that remuneration and other costs and expenses incurred in the course of the winding up and receivership (including the costs of sale of the Gerroa property, land tax referable to the Gerroa property and legal expenses), Mr Copeland holds the sum of $1,692,373.43. That sum is expected to increase to $1,711,211.63 due to anticipated GST refunds.
Mr Copeland proposes to pay out of that sum his remuneration that is the subject of the present application (if approved by the Court) and legal fees of approximately $137,821.20 that have been incurred or are expected to be incurred up to the conclusion of the winding up and the receivership.
Mr Copeland seeks an order permitting him to pay the remaining funds to priority unsecured creditors and to then distribute the balance to ordinary unsecured creditors to whom the Company incurred debts in its capacity as trustee of the Family Trust. He expects to pay ordinary unsecured creditors approximately $0.73 on the dollar and there will be no funds available for distribution to beneficiaries of the Family Trust.
Notice of the remuneration application, the distribution application and the application for Mr Copeland's discharge and release as Receiver, and the hearing date for those applications, has been given to SX Projects, the Commissioner of Taxation, Mr Hillig in his capacity as liquidator of ACN 092 745 330 Pty Ltd (in liq) and Ms Karen Battaglia.
SX Projects does not oppose the remuneration application, supports the distribution application and does not oppose the application for Mr Copeland's discharge and release. Mr Stack of counsel appeared for SX Projects at the hearing on 1 August 2022.
The Commissioner of Taxation does not wish to be heard in relation to the remuneration application, supports the distribution application and does not wish to be heard in relation to Mr Copeland's application for discharge and release. Mr Craig, solicitor, appeared for the Commissioner of Taxation at the hearing on 1 August 2022.
Mr Copeland tendered correspondence establishing that Ms Battaglia does not wish to be heard in relation to any of the applications and neither consents to nor opposes the orders sought by Mr Copeland.
In his affidavit sworn on 8 July 2022, Mr Copeland deposed that Mr Hillig did not respond to correspondence from Mr Copeland's solicitors notifying him of the applications and the hearing date. There was no appearance for Mr Hillig as liquidator of ACN 092 745 330 Pty Ltd (in liq) at the hearing on 1 August 2022.

Remuneration

The remuneration claimed by Mr Copeland for the period from 24 August 2021 to 14 June 2022 relates to the following work described in Mr Copeland's affidavit sworn on 8 July 2022: 1. work relating to the previous remuneration application; 2. work required to determine the creditors to whom the Company incurred debts in its capacity as trustee of the Family Trust and the priority and quantum of those creditors' claims; 3. corresponding with creditors in relation to issues arising in the winding up, including: 1. corresponding with the Commissioner of Taxation about the amount of the Company's capital gains tax liability; and 2. corresponding with SX Projects about the quantum of the costs payable to SX Projects under the orders made in the 2016 proceedings and a possible contribution claim by the Company against Ms Battaglia (the only solvent defendant in the 2016 proceedings) in the event that SX Projects claimed the whole of the amount of those costs in the winding up of the Company; 1. work carried out to obtain a GST refund to which the Company was entitled, which entitlement the Court was informed arose out of business activity statements lodged by the Company in its capacity as trustee of the Family Trust; 2. work carried out for the purpose of the present applications; and 3. other general liquidation and receivership work such as bank reconciliations, attending to payment of costs and expenses, updating statements of receipts and payments, preparing and lodging business activities statements and carrying out statutory functions under the Corporations Act.
The further work that Mr Copeland has or expects to carry out in the period after 15 June 2022 and prior to the conclusion of the winding up and the receivership involves: 1. further work relating to the present applications; 2. declaring and paying the dividend to creditors; 3. completing and lodging final accounts in the receivership of the Family Trust; and 4. complying with any remaining statutory reporting requirements in the winding up of the Company, including applying for the deregistration of the Company.
As I have already mentioned, the Company did not trade in its own right and held no assets other than as trustee of the Family Trust (save for a small amount of money in a bank account held for the Super Fund). I am satisfied that the past work has been carried out, and the anticipated future work will be carried out, in Mr Copeland's capacities as Receiver and Liquidator and that his work as Liquidator directly or indirectly relates to the realisation and distribution of the Family Trust assets that the Company now holds as bare trustee, subject to an equitable charge or lien giving effect to the Company's right of indemnity and power of exoneration arising from its role as former trustee of the Family Trust: In the matter of Houben Marine Pty Ltd (in liq) [2018] NSWSC 745 at [16] and the authorities there referred to.
The fund out of which Mr Copeland's remuneration is proposed to be paid is comprised of the remaining net sale proceeds of the Gerroa property and the GST refunds referred to above. There is no suggestion that the small amount of money held by the Company as trustee of the Super Fund is to be applied to Mr Copeland's remuneration (or, indeed, to be distributed to creditors of the Company in its capacity as former trustee of the Family Trust).
In those circumstances, the source of the Court's jurisdiction to fix the amount of Mr Copeland's past and future remuneration is twofold: rule 26.4 of the Uniform Civil Procedure Rules 2005 (NSW) (to the extent that the work is characterised as having been done in Mr Copeland's capacity as Receiver) and the Court's inherent equitable jurisdiction to allow remuneration out of trust assets in connection with the administration of a trust fund by a trustee or liquidator of a trustee: In the matter of JSMOT Pty Ltd (No. 2) [2020] NSWSC 1755 at [12]-[15] and the authorities there referred to.
I respectfully adopt, without repeating, Gleeson JA's summary of the principles applicable to determining the remuneration application in BBY Limited (receivers and managers appointed) (in liq) [2021] NSWSC 1299 at [52]-[59].
Having reviewed Mr Copeland's evidence of the work done during the period from 24 August 2021 to 14 June 2022 referred to at [26] above, including reviewing the time records for that work in a broad way, I am satisfied that the work was necessary for the receivership and the winding up, was properly performed and that the amount of $59,292 claimed is a fair and reasonable reward for the work. The hourly charge out rates applied to the work are within the range of rates commonly charged within the insolvency industry and are not at the upper end of that range. The work appears to have been carried out efficiently by Mr Copeland and a small team of people within his office with levels of seniority appropriate to the work performed by them.
I am also satisfied that the work carried out or to be carried out in the period after 15 June 2022 is necessary and that the rates to be charged for that work are reasonable. There is no reason to think that the work will not be properly and efficiently performed. The remuneration to be paid for that work is capped at $20,000. I accept the submission made on behalf of Mr Copeland fixing the remuneration at that capped amount now is preferable to incurring the costs of a further remuneration application after all tasks have been completed.
In my opinion, the total amount of the remuneration now claimed and the remuneration previously fixed by the Court on 18 October 2021 is proportionate to the value of the asset realised by the Receiver and Liquidator for the benefit of creditors of the Company in its capacity as trustee of the Family Trust. As I have already mentioned, neither of those creditors, whose interests are directly affected by the amount of the remuneration paid to Mr Copeland out of the remaining Family Trust assets, oppose the remuneration application.
For those reasons, the Court made orders on 1 August 2022 in the terms sought by Mr Copeland in respect of his remuneration for the periods 24 August 2021 to 14 June 2022 and from 15 June 2022 until the conclusion of the receivership and winding up and permitting that remuneration to be paid out of the assets of the Family Trust.

Distribution to creditors

I am satisfied that the orders sought by Mr Copeland in relation to the distribution to creditors of the remaining assets of the Trust (after his costs, expenses and approved remuneration) are appropriate.
The proposed orders provide for that distribution to creditors in the following order of priority: 1. $365,879.19 to the Commissioner of Taxation in respect of the Company's capital gains tax liability arising from the lodgement of its tax return for the year ended 30 June 2021; 2. $8,049.64 to SX Projects, being its costs incurred as petitioning creditor in the winding up proceedings; 3. to the Commissioner of Taxation and SX Projects pari passu with respect to their remaining claims in the winding up, namely: 1. the Commissioner of Taxation's claim for $6,780 as a penalty payable by the Company under a penalty notice issued to it in its capacity as trustee of the Trust for failing to lodge an income tax return for the years ending 30 June 2009 to 30 June 2017. 2. SX Projects' claim for $1,596,505.02 (being the amount of the judgment entered in its favour in the 2016 proceedings referred to above) plus $32,476.85 (being post-judgment interest payable on the judgment up to the day before the Company went into liquidation). SX Projects no longer makes any claim in the winding up of the Company in respect of its costs of the 2016 proceedings.
I accept the submission made on behalf of Mr Copeland that an insolvent corporate trustee or former trustee's rights of indemnity and exoneration out of trust assets constitutes property of the company that may be applied to discharge liabilities properly incurred by the company in its capacity as trustee, but may not be applied to discharge liabilities incurred by the company in its own right or in its capacity as trustee of another trust: Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 268 CLR 524; [2019] HCA 20 (Carter Holt Harvey) at [29]-[44] (Kiefel CJ, Keane and Edelman JJ) and [80]-[85], [90]-[97] (Bell, Gageler and Nettle JJ).
Mr Copeland's affidavit sworn on 8 July 2022 establishes that the debt of $365,879.19 owing to the Commissioner of Taxation represents capital gains tax in respect of the sale of the Gerroa property and an associated general interest charge. It was common ground between Mr Copeland, SX Projects and the Commissioner of Taxation that this amount should be paid in priority to the other proposed distributions on the basis that it is an expense incurred by Mr Copeland in realising the Gerroa property.
As referred to above, the Commissioner of Taxation's claim for $6,780 relates to a penalty notice issued to the Company in its capacity as trustee of the Family Trust.
In relation to the sum of $8,049.64 to be paid to SX Projects as a priority unsecured creditor, the evidence establishes that this is the sum in which the Federal Court fixed the costs of SX Projects as petitioning creditor in the winding up proceedings.
It is clear from the judgment of the Court in the 2016 proceedings that the other amounts claimed by SX Projects are liabilities of the Company incurred in its capacity as trustee of the Family Trust: SX Projects Pty Ltd (in liq) v V Battaglia [2018] NSWSC 1830, especially at [60]-[61]. The orders made by the Court in those proceedings establish the judgment amount of $1,596,505.02. The amount of post-judgment interest has been calculated in accordance with s 101(1) of the Civil Procedure Act 2005 (NSW) and r 36.7 of the Uniform Civil Procedure Rules 2005 (NSW). As noted above, SX Projects has removed from its proof of debt any claim in respect of the costs of the 2016 proceedings.
It is clear from Re ACN 092 745 330 Pty Ltd [2017] NSWSC 241 at [18] and [141] and Re ACN 092 745 330 Pty Ltd [2018] NSWCA 67 at [4] and [26] that any liability of the Company in respect of the proof of debt lodged by Mr Peter Hillig as liquidator of ACN 092 745 330 Pty Ltd (in liq) for $482,736.45 was a liability incurred in the Company's capacity as trustee of the No. 2 Trust and not in its capacity as trustee of the Family Trust. It is therefore appropriate that the orders sought by Mr Copeland for distribution of the funds held by him, which represent the remaining net sale proceeds of the Gerroa property, do not include any distribution to Mr Hillig as liquidator of ACN 092 745 330 Pty Ltd (in liq).
For those reasons, the Court made orders on 1 August 2022 substantially in the terms sought by Mr Copeland in relation to the distribution of the funds remaining after payment of his remuneration in the amount fixed by the Court and payment of expenses.

Discharge and release of Receiver

As counsel for Mr Copeland submitted, a court-appointed receiver may be discharged where the object of the appointment has been achieved: Re Say Enterprises Pty Ltd [2018] NSWSC 396 at [33] and the authorities there referred to. The release may extend to employees and agents of the court-appointed receiver: see, for example, In the matter of Hutchins, Ardenberg Pty Ltd (in liq) (administrators appointed) (No. 3) [2021] FCA 519.
The object of Mr Copeland's appointment as receiver will have been achieved once the distributions referred to above have been made and his final account as Receiver has been filed with the Court. There will remain steps to be taken to complete the winding up of the Company, but those steps will be taken by Mr Copeland in his capacity as Liquidator and not as Receiver.
In his affidavit sworn on 8 July 2022, Mr Copeland has deposed that, to the best of his belief, he has not engaged in any default in the administration of the affairs of the Family Trust which is likely to give rise to any liability to the Family Trust or to any creditor or beneficiary of the Trust or to Batfamt as the new trustee. Mr Copeland also deposed that he is not aware of any claim having been made or foreshadowed by any person of any default in the receivership and that no person has raised in any issue or made any allegation or claim against him or any member of his staff in connection with the affairs of the Company or the Family Trust.
On the basis of Mr Copeland's evidence, I accept the submission that it is appropriate that he be discharged and released as Receiver upon the completion of the distributions to creditors referred to above and the filing of his final account with the Court. However, that order should be subject to interested persons having liberty to apply to set aside the discharge and release within a period of four weeks after the filing of the final account. That accounts for the inherent possibility that the final account may reveal a claim not presently known to interested persons or to Mr Copeland, and also preserves the rights of the current trustee of the Family Trust in respect of any claim for the benefit of the beneficiaries. There was no evidence that Batfamt was notified of the Receiver's application to be discharged and released and of the hearing on 1 August 2022.

Conclusion and orders

For the foregoing reasons, the Court made the following orders on 1 August 2022: 1. An order that the renumeration of Brendan James Copeland (Mr Copeland) in his capacity as the receiver and manager of the assets and undertakings (Receiver) of the Battaglia Family Trust (Family Trust) and in his capacity as the liquidator of Fellmane Pty Limited (In Liquidation) (Fellmane) be fixed in the following amounts and be paid from the assets of the Family Trust: 1. for the period from 24 August 2021 to 14 June 2022, in the sum of $59,292 (excluding GST); and 2. for the period from 15 June 2022 to the conclusion of the receivership of the Family Trust and conclusion of the winding up of Fellmane, in the sum of an amount not exceeding $20,000 (excluding GST), (together, the Renumeration), 1. An order that Mr Copeland in his capacity as the receiver of the Family Trust and as liquidator of Fellmane pays, from the remaining assets of the receivership of the Family Trust (after his costs, expenses and approved Renumeration), amounts to the admitted creditors of Fellmane in its capacity as trustee for the Family Trust as a final distribution in the following priority: 1. First, to Commissioner of Taxation with respect to Fellmane's taxation liability arising from the notice of assessment issued by the commissioner of Taxation to Fellmane on 29 June 2022, in the amount of $365,879.19; 2. Secondly, to SX Projects Pty Ltd (In Liquidation)(SX Projects) with respect to the sum of $8,049.64 payable pursuant to orders dated 20 March 2019 in Federal Court Proceeding No. NSD198/2019 (being the costs of the petitioning creditor for the application for the winding up of Fellmane); and 3. Thirdly, to the Commissioner of Taxation and SX Projects, on a pari passu basis, with respect to their remaining debts or claims in the winding up of Fellmane in its capacity as trustee of the Family Trust. 1. An order that Mr Copeland file with the Court his final account as Receiver of the Family Trust by 30 September 2022. 2. An order that, upon the completion of the steps in Orders 2 and 3 above, Mr Copeland: 1. Be discharged as the Receiver of the Family Trust; and 2. Together with his employees and agents, be released from any liability whatsoever and however arising out of or in connection with his appointed as Receiver of the Family Trust. (4A) Grant liberty to any person claiming to have an interest in the relief sought in the amended interlocutory process filed on 24 June 2022 or the subject of order 4 above to apply to vary or set aside order 4 by no later than 31 October 2022, any such application to be made on seven days' notice to Mr Copeland. (4B) Order Mr Copeland to serve a copy of these orders within three business days after the making of these orders on the current trustee of the Family Trust, Batfamt Pty Limited. 1. An order that Mr Copeland's costs of this application be costs in the receivership and be paid from the assets of the Family Trust.

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: 03 August 2022

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