Chief Commissioner of Stamp Duties (NSW) v Buckle

Remuneration application

1. By the respective interlocutory processes, Mr Jones seeks approval for remuneration under s 60‑10(1)(c) of Sch 2 to the Corporations Act 2001 (Cth) (Corporations Act). In the Jainti Proceedings, the liquidator seeks $50,125 plus GST as remuneration for the period 26 February 2019 to 18 November 2020 and $4,000 plus GST as remuneration for work from 18 November 2020 to the date of the date of discharge as special purpose liquidator. In the Buradoo Proceedings, the liquidator seeks $92,590.50 plus GST as remuneration for the period 8 August 2019 to 18 November 2020, $13,467 plus GST for the period 19 November 2020 to 27 April 2021 and $4,000 plus GST for work from 28 April 2021 to the lodgement of an end of administration return with the Australian Securities and Investments Commission.
2. In relation to the Jainti Proceedings, the application is made because of the limited scope of the liquidator's appointment as a special purpose investigator to investigate claims available against Burradoo. In the Burradoo Proceedings, the application is made because at the time of the filing of the interlocutory process, no creditor had lodged a proof of debt. Subsequently on 27 April 2021, Atkinson Vinden lodged a proof of debt claiming the sum of $3,419.29. This is the only proof lodged in the liquidation of Burradoo.

Relevant principles

1. The principles relevant to approval of remuneration have been considered in various decisions. In Re Octavia Administration Pty Ltd (in liq) [2020] NSWSC 927 at [49], Rees J distilled the principles as follows: (a) A liquidator is entitled to reasonable remuneration for their services and bears the onus of establishing that the remuneration sought is fair and reasonable. (b) The liquidator must lead evidence in sufficient detail to enable the Court to determine that question including an itemised account setting out the details of work, the persons who did the work, the time taken to perform the work and the remuneration and expenses incurred. (c) The Court must bring an independent mind to bear on the question whether the remuneration is fair and reasonable. (d) Relevant considerations include the complexity of the liquidation and the level of responsibility and risk taken on by the liquidator. (e) The time-costing based approach to remuneration as well as the percentage-based approach - which compares the percentage that a liquidator's remuneration bears to the level of asset realisations achieved - are commonly used, and no particular approach is to be preferred. (f) There is a need for proportionality between the cost of the work done and the value of the services provided. Some work by a liquidator may not generate a return to creditors but is nonetheless necessary.
2. As to the issue of proportionality, in Re Sakr Nominees Pty Ltd [2017] NSWSC 668, Black J noted (at [23]) that: 23. Proportionality is an important matter in considering the question of whether remuneration is reasonable, and the "value" of a liquidator's work can include the benefit of resolving the position of creditors and beneficiaries; the benefit to the community of not permitting assets to remain unproductively in the hands of a defunct company for a long period; and can include work that was required to be done, although it did not result in a return to creditors.
3. See also 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.

Determination

1. Notice of the respective applications for approval of remuneration was given to the persons identified in the liquidator's respective submissions at [24] and [22]. The liquidator relies upon an affidavit dealing with the work carried out in both sets of proceedings. I have reviewed that affidavit and the itemised work in progress reports that have been attached to the affidavit. I am satisfied that the remuneration is appropriate, having taken into account the various principles including the need for proportionality between the cost of the work done and the value of the services provided. I note that in the present case the costs of the investigations carried out by the special purpose liquidator have been affected, and the liquidator says increased, by reference to various matters including the deterioration of the relationship between the various family members involved in the companies in question; the difficulty of the liquidator obtaining details in relation to the matters; and the time period involved. I consider that it is appropriate to approve the relevant claims for remuneration.

Judicial advice application

1. I turn then to the respective applications for judicial advice, noting the principles relevant to the exercise of the power to give such advice, as summarised by Black J in Re Octaviar Administration Pty Ltd (in liq) [2017] NSWSC 1556, at [7]-[9] as follows: 7. I summarised the scope of the Court's power to give directions under s 479(3) of the Corporations Act in Re MF Global Australia Ltd (in liq) [2012] NSWSC 994; (2012) 267 FLR 27 at [7] as follows: Section 479(3) of the Corporations Act allows a liquidator to apply to the court for directions in relation to a matter arising under a winding up. The function of a liquidator's application for directions under this section is to give the liquidator advice as to the proper course of action for him or her to take in the liquidation: Sanderson v Classic Car Insurances Pty Ltd (1985) 10 ACLR 115at 117; (1986) 4 ACLC 114; Re Ansett Australia Ltd (admins apptd) and Korda [2002] FCA 90; (2002) 115 FCR 409; 40 ACSR 433 at [46]. The court may give directions that provide guidance on matters of law and the reasonableness of a contemplated exercise of discretion but will typically not do so where a matter relates to the making and implementation of a business or commercial decision, where no particular legal issue is raised and there is no attack on the propriety or reasonableness of the decision: Sanderson v Classic Car Insurances Pty Ltd above at 117; Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674 at 686-7; 5 ACSR 673; 9 ACLC 1291; Re Ansett Australia Ltd above at [65]; Re One.Tel Networks Holdings Pty Ltd [2001] NSWSC 1065; (2001) 40 ACSR 83 at [32]. 8. I also referred to the scope of the Court's powers under s 511 of the Corporations Act in that decision and observed (at [8]) that: Section 511 of the Corporations Act provides an alternative source of power to give such a direction and the Liquidators also rely on that section. The principles applicable to an application under that section were recently reviewed by Ward J in Re Purchas [2011] NSWSC 91 … Applications made under this section in a voluntary winding up are determined in a similar manner to applications in a court ordered winding up under s 479(3) of the Corporations Act notwithstanding that section does not expressly require that it be 'just and beneficial' to give the relevant direction. The court may give such a direction where it will be 'of advantage in the liquidation': Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 42 NSWLR 209 at 212; Handberg v MIG Property Services Pty Ltd (2010) 79 ACSR 373 at [7]. The effect of a determination under the section is to sanction a course of conduct on the part of the liquidator so that he or she may adopt that course free from the risk of personal liability for breach of duty: Handberg v MIG Property Services Pty Ltd at [7]. 9. I also recognise that the Court's powers to give judicial advice and give directions under these sections are intended to facilitate the performance of a liquidator's functions and should be interpreted widely to give effect to that intention, and the Court may give such advice or give such a direction where it is advantageous to the liquidation to do so: Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 42 NSWLR 209 at 212; Handberg v MIG Property Services Pty Ltd [2010] VSC 336; (2010) 79 ACSR 373 at [7]; Re One.Tel Networks Holdings Pty Ltd [2001] NSWSC 1065; (2001) 40 ACSR 83; Re One.Tel Ltd [2014] NSWSC 457; (2014) 99 ACSR 247 at [32]; Re Octaviar Ltd (in liq) and Octaviar Administration Pty Ltd (in liq) [2017] NSWSC 1005. The directions sought in this case do not involve either the GPLs or the SPL seeking a direction as to the making of implementing of a business or commercial decision, which the Court will generally be reluctant to give.
2. Turning first to the Jainti Proceedings, the judicial advice that is sought is set out in the interlocutory process in the prayers for relief at prayers 5, 6, 7 and 8, albeit that it is indicated by Counsel for the applicant that the relief sought in prayer 7 would not be necessary unless there was an issue as to whether or not the moneys in question constituted Burradoo moneys for the purposes of the orders that were made.
3. In summary, the liquidator seeks orders pursuant to s 90-15 of Sch 2 of the Corporations Act that the liquidator would be justified in treating the moneys paid to the Jainti from and out of the winding up of Buradoo as a recovery in respect of the Buradoo Matter (prayer 5); that the liquidator would be justified in drawing their remuneration out of the moneys paid to Jainti from and out of the winding up of Buradoo (prayer 6); that order 2 of the orders of Black J on 19 February 2019 be varied so as to permit applicant, as special purpose liquidator, to pay the funders (i.e. the plaintiffs) the amount that they are entitled to pursuant to the "Deed of Indemnity and For the Provision of Recovery of Funding (Buradoo Matters)" dated 7 May 2019 (the Funding Agreement), from the moneys paid to Jainti from and out of the winding up of Buradoo (prayer 7); and an order that upon the making of those payments the liquidator's appointment as special purpose liquidator be terminated (prayer 8). There is a confidentiality order in relation to the Funding Agreement so I will not set out its terms, but I do note that there is what is referred to as a waterfall clause in cl 9.
4. I note the definition of Burradoo Matters, in Sch A of the orders of Black J above, which includes all credits, debts and dealings between Jainti and Burradoo. As the applicant submits, the liability of Burradoo to Jainti for the Jainti Loan is such a claim, and [2(d)] of the orders expressly empowered the applicant in his capacity as special purpose liquidator to commence and pursue any proceedings for the winding up of Burradoo in respect of any liability it had to Jainti. It is submitted by the applicant that it is appropriate to apply the Burradoo payment for the purposes of meeting his remuneration as determined by the Court, in circumstances where the Burradoo payment was secured as a result of the proceedings brought by him to wind up Burradoo because of Burradoo's non‑compliance with Jainti's statutory demand calling for the repayment of the Jainti Loan.
5. In the Burradoo Proceedings, the relevant judicial advice sought is in accordance with prayers for relief at [4], [5] and [6A] of the amended interlocutory process, as follows: 4. Pursuant to section 90-15(1) of Schedule 2 to Corporations Act 2001 (Cth) and / or section 63(1) of the Trustee Act 1925 (NSW), an order or direction that the Applicant would be justified, and would otherwise be acting reasonably, in drawing the amount of the remuneration determined in accordance with paragraphs 2 and 3 above, from the surplus of funds recovered from the realisation of the assets of the Anglewood Development [Unit] Trust. 5. Pursuant to section 90-15(1) of Schedule 2 to Corporations Act 2001 (Cth) and / or section 63(1) of the Trustee Act 1925 (NSW), an order or direction that the Applicant would be justified, and would otherwise be acting reasonably, in paying any surplus from the realisation of the assets of the Anglewood Development [Unit] Trust, following payment of his remuneration in accordance with paragraphs 2 and 3 above, in accordance with section 556(1) of the Corporations Act 2001 (Cth). … 6A. Pursuant to section 90-15(1) of Schedule 2 to Corporations Act 2001 (Cth) and / or section 63(1) of the Trustee Act 1925 (NSW), an order or direction that the Applicant would be justified, and would otherwise be acting reasonably, in refusing to assign to Salvatori Morabito or another person, each of the causes of action the Plaintiff has or may have as liquidator of the Defendant, or that the Defendant has or may have, relating to the following: (i) The payment of the amount of $128,209.86 to RBG Holdings Pty Ltd on 19 June 2013 from the trust account maintained by Atkinson Vinden Lawyers in the Defendant's name (Trust Account). (ii) The payment of the amount of $50,000 to RBG Holdings Pty Ltd on 28 June 2013 from the Trust Account. (iii) The payment of the amount of $20,442.69 to D Malnersic & S Polczynski trading as Polczynski Lawyers from the Trust Account pursuant to a garnishee order for debts issued to the Defendant by the Local Court of New South Wales on 31 August 2018. (iv) The payment of the sum of $7,366.04 paid to Atkinson Vinden Lawyers in the period from 8 January 2013 to 28 January 2016 from the Trust Account. (v) Any claim for breach of trust against Atkinson Vinden Lawyers arising from the making of payments referred to in 6A (i) to (iv) above.
6. In summary, in the Burradoo Proceedings the liquidator seeks advice in relation to the payment of his remuneration from the balance of the net funds as defined, and a potential request to assign certain causes of action to Sam Morabito. Reliance is placed on the right of Burradoo to be indemnified out of, and exonerated from, the assets of the Anglewood Trust, in respect of all liabilities that it has incurred as trustee of that trust. It is noted that this right arises at common law (see, for example, Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360; [1979] HCA 61 at 367; and Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226; [1998] HCA 4 at [49]); and under statute (see s 59(4) of the Trustee Act 1925 (NSW)); and under the trust deed (see cll 12.2, 20(b) and (g)). It is noted that Burradoo's right to indemnity and exoneration constitutes a proprietary interest in the assets of the trust, and that interest gives Burradoo a charge or right of lien over those assets.

Remuneration out of trust property

1. The liquidator seeks authorisation to pay his remuneration as determined by the Court from the net funds, noting that where a company is the trustee of a trading trust and has had no other activity, it has been held that its liquidator is entitled to be paid the liquidator's remuneration and expenses whether for administrating the trust assets or for general liquidation work, out of the trust assets (see, for example, Re MF Global Australia Ltd (in liq) (No 2) [2012] NSWSC 1426 at [55] per Black J; JML Property Services Pty Ltd (in liq) [2018] NSWSC 1069 (JML Property Services) at [9]-[10] per Black J). As to the quantification of that remuneration reference is made to what was said by Williams J in Re M & J Super Fund Pty Ltd (in liq) [2021] NSWSC 279 at [16].
2. As to the dealing with the remainder of the net funds, it is accepted that there will be a surplus held by the liquidator after the payment of his remuneration and expenses. I have made reference above to the proof of debt lodged by Atkinson Vinden. I pause here to note that Sam Morabito has raised various criticisms of payments and conduct by Atkinson Vinden and in relation to this proof of debt. Nevertheless the liquidator accepts that the proof of debt as lodged is a valid proof of debt. In addition, although the general liquidator of Jainti has not lodged a proof of debt (in circumstances where that would give rise to a conflict, given that Burradoo was wound up on the basis that it had failed to comply with the statutory demand for the repayment of the Jainti Loan), it is submitted that Burradoo is clearly liable to Jainti for the Jainti Loan, and these debts were incurred by Burradoo in its capacity as trustee of the Anglewood Trust.
3. Reference is made to JML Property Services at [14] per Black J, as to the application of the statutory scheme of priorities set out in the Corporations Act, to the distribution of assets where a company in liquidation is trustee of a trading trust; and to those assets being subject to a right of exoneration and supporting lien, at least in respect of a company that only acts as trustee for one trust, and does not conduct affairs in its own right.
4. I have also been taken to a decision of Anderson J in Deppeler, In the matter of Asten Holdings Pty Ltd (in liq) [2020] FCA 1107 at [25]-[26], and the conclusion at [37], that it was appropriate in that case that the liquidator's remuneration and expenses be paid out of trust assets (and see the authorities referred to there).
5. I am satisfied that it is appropriate to give the judicial advice sought in relation to those matters.

Sale of the choses in action

1. That leaves the final issue which is the advice in relation to the proposed sale of the choses in action. This arises because Sam Morabito has raised, in discussions with various representatives of the liquidator, an interest in taking an assignment of claims that the liquidator may have. I refer in this regard to Mr Jones' affidavit sworn 29 April 2021, from [12] in particular.
2. Mr Jones has referred to legal advice from his legal representatives. He makes clear that he does not waive privilege over that legal advice, but has deposed that based on his reading of that advice, and from his subsequent discussions with his lawyers, he has formed the view that the claims which Sam Morabito previously indicated an interest in seeking an assignment of, are claims that are either statute barred, unsupported by evidence, or otherwise not choses in action capable of assignment.
3. Mr Jones has deposed at [21]-[22] to his view that the causes of action available to him as liquidator of Burradoo or which are in the hands of Burradoo itself, are either statute barred, unsupported by evidence or not causes of action which are assignable; and that he does not believe there are realistic prospects of success of those claims succeeding. Therefore, he has deposed that he does not believe that it would be in the interests of creditors or contributors to assign the putative causes of action.
4. Pausing here, Mr Morabito has referred to receipt of oral advice from legal representatives to the effect that claims in relation to fraud would not be statute barred because there would be a 12 year limitation period.
5. I have been taken to the decision of Brereton J, then sitting at first instance in Re SCW Pty Ltd [2013] NSWSC 302 (Re SCW), in relation to the assignment of causes of action by the liquidator. In that case, an order was sought that the liquidator would be justified in not engaging in further discussions about a proposal in relation to an assignment of causes of action. His Honour was not prepared to give that advice, and in fact ordered that the liquidator would not be justified in not engaging in further discussions.
6. However, the applicant on the present application submits that Re SCW is distinguishable as there was evidence before Brereton J in that case that Senior Counsel had given advice as to there being a cause of action which was viable (see Re SCW at [9]); and, after considering the various submissions that were made, his Honour said (at [15]), that that was a case in which there was at least the prospect of there being valid claims, and so his Honour could not conclude that the proposed claims were so clearly frivolous or vexatious that their assignment would be improper, and ought not to be permitted.
7. Relevantly, his Honour referred to Citicorp Australia Ltd v Official Trustee in Bankruptcy (1996) 141 ALR 667, where the Full Court of the Federal Court of Australia considered that there would be cases in which, even if the proposed assignee offered a sum of money, a claim ought not be assigned by a liquidator or trustee, those being cases where the claim is frivolous or vexatious. Brereton J in Re SCW said (at [15]): 15. However, as was also pointed out in Citicorp, where a creditor or intervening party contends that an assignment should not be authorised because the proposed claim has no prospects of success, it is for that party to demonstrate the absence of any prospect of success…. Had the Liquidator formed the view that the claims ought not be assigned, on the basis of an opinion that their assignment was being sought by the Schirato interests without any genuine belief that they were valid claims and purely for the purpose of positioning the Schirato interests to harass the Cantarella interests further, the position might have been difficult. But the Liquidator eschewed any such submission.
8. His Honour noted that on the basis of the revised proposal in that case, no use of company assets would be involved in investigating or prosecuting the claim.
9. In the present case, Black J made orders on 10 May 2021 for the filing of evidence in support of the proposed causes of action in respect of which Sam Morabito has expressed an interest in seeking an assignment. It is noted by the liquidator that no actual offer in respect of such an assignment has been made by Mr Morabito. The liquidator seeks advice, in circumstances where the liquidator has not received from Sam Morabito any offer or any material addressing the prospects of the success of the causes of action, that it is appropriate for him not to assign the causes of action identified in prayer 6(a) of the interlocutory process.
10. As I apprehend it, the liquidator is seeking to finalise the winding up of the company and to minimise ongoing costs incurred therein. Such ongoing costs would include costs incurred, for example, in further negotiations in relation to a proposed assignment of the causes of action to which Mr Morabito has referred, and would have the potential to delay the winding up of the company. That said, it seems to me that if there were a final opportunity permitted to Mr Morabito to put forward any proposed offer in relation to an assignment of the causes of action (such that Mr Morabito were in a position to provide advice that would satisfy the liquidator acting reasonably that the causes of action sought to be assigned was not statute barred), and if there were to be an express acknowledgment on any such assignment that the liquidator was not warranting that there was any such causes of action that remained maintainable; then it would not necessarily be said that an assignment was not in the interests of creditors (and hence there would be a basis to permit a final opportunity for such an application by Mr Morabito). However, I understand that it is desirable (and in the interests of creditors) for the liquidator not to incur further legal costs in relation to the winding up.
11. Although Mr Morabito appeared at the conclusion of the oral submissions not to be inclined to press for such an opportunity, it seems to me that the judicial advice to be given in answer to prayer 6(a) should include a final opportunity for Mr Morabito to make an offer of a kind that would lead to the conclusion reached in Re SCW. In other words, Mr Morabito should have a final opportunity to make an offer, of whatever amount he says he is prepared to offer, but with either a copy of legal advice or other evidence to support a conclusion by the liquidator that the assignment of the causes of action would not be frivolous or vexatious within the sense considered in Re SCW.
12. In this regard, I should note that Brereton J in Re SCW made clear that the liquidator does not have a duty to ascertain whether the claim is one with a reasonable prospect of success, or to investigate the prospects of success. So, as I understand it, it really would be a question of whether the liquidator is able to come to the position that the claims, if assigned, would not be claims that it could be said were improperly assigned because they were frivolous or vexatious.
13. In those circumstances, I propose to give the judicial advice sought in prayer 6(a), but with the caveat that I will draft the final orders to permit Mr Morabito a further seven days in which to make any offer he wishes to make in relation to the assignment of the causes of action and to provide such advice or other evidence as would satisfy the liquidator that such an assignment of those causes of action would not be frivolous or vexatious.
14. For those reasons, broadly speaking, I will make orders as sought in the interlocutory processes. It is appropriate that those orders include an order that the costs of, and incidental to, the interlocutory applications be costs in the winding up of the respective defendants.

Orders

1. The final orders (made in chambers in accordance with short minutes of order forwarded by the applicant consistent with the above reasons) are as follows:

Jainti Proceedings In these orders the term following terms have the following meaning: 1. Buradoo Matters has the same meaning as those words are defined in Schedule A to the orders made in these proceeding, by Black J, on 19 February 2019. 2. Funders means the Plaintiffs. 3. Funding Agreement means the agreement styled 'Deed of Indemnity and For the Provision of Recovery of Funding (Buradoo Matters)' dated 7 May 2019, entered into by the Applicant and the Funders. The Court orders and directs: 1. Pursuant to rule 28.5 of the Uniform Civil Procedure Rules 2005 (NSW), the Interlocutory Process filed 10 March 2021 in this proceeding be heard at the same time as the Amended Interlocutory Process filed in Supreme Court of New South Wales, proceeding 2019/212906. 2. The affidavit evidence filed and read in support of the Amended Interlocutory Process filed in Supreme Court of New South Wales proceeding 2019/212906 be taken as affidavit evidence filed and read in support of the Interlocutory Process filed 10 March 2021 in this proceeding. 3. Pursuant to section 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), on the grounds that the order is necessary to prevent prejudice to the proper administration of justice, until further order of the Court the confidential exhibit marked MGJ-2 to the affidavit of Michael Gregory Jones sworn 11 December 2020 be kept confidential and not be provided or disclosed to any person other than: 1. the Plaintiffs; 2. the Applicant and the officers and staff of Jones Partners; 3. the legal advisors of the Second Defendant and the legal advisors of the General Purpose Liquidator of the Second Defendant. 1. Pursuant to section 60-10 (1) (c) of Schedule 2 to Corporations Act 2001 (Cth), the Applicant, in his capacity as the special purpose liquidator of the Second Defendant, be entitled to remuneration for the period 26 February 2019 to 18 November 2020 in the sum of $50,125.00 plus GST. 2. Pursuant to section 60-10 (1) (c) of Schedule 2 to Corporations Act 2001 (Cth), the Applicant, in his capacity as the special purpose liquidator of the Second Defendant, be entitled to remuneration for work performed as special purpose liquidator of the Second Defendant from 18 November 2020 to the date of the Applicant's termination and/or discharge as special purpose liquidator of the Second Defendant, fixed in the sum of $4,000 plus GST. 3. Pursuant to section 90-15 (1) of Schedule 2 to Corporations Act 2001 (Cth), the Applicant is justified, and would otherwise be acting reasonable, in treating the moneys paid to the Second Defendant from and out of the winding up of Buradoo Pty Limited (in liquidation), ACN 112 590 682, as a recovery in respect of the Buradoo Matters. 4. Pursuant to section 90-15 (1) of Schedule 2 to Corporations Act 2001 (Cth), the Applicant is justified, and would otherwise be acting reasonably, in drawing the amount of the remuneration determined in accordance with orders 4 and 5, from the moneys paid to the Second Defendant from and out of the winding up of Buradoo Pty Limited (in liquidation), ACN 112 590 682. 5. Upon making the payments referred to in order 7, the Applicant's appointment as special purpose liquidator of the Second Defendant be terminated and/or discharged. 6. The Applicant's costs of and incidental to this interlocutory application be costs in the winding up of the Second Defendant.

Buradoo Proceedings 1. Pursuant to rule 28.5 of the Uniform Civil Procedure Rules 2005 (NSW), the Amended Interlocutory Process filed 29 April 2021 be heard at the same time as the Interlocutory Process filed in Supreme Court of New South Wales, proceeding 2018/349882. 2. The affidavit evidence filed and read in support of the Interlocutory Process filed in Supreme Court of New South Wales proceeding 2018/349882 be taken as affidavit evidence filed and read in support of the Amended Interlocutory Process filed 29 April 2021 in this proceeding. 3. Pursuant to section 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), on the grounds set out in (s 8(a)) that the order is necessary to prevent prejudice to the proper administration of justice, until further order of the Court the confidential exhibit marked MGJ-2 to the affidavit of Michael Gregory Jones sworn 11 December 2020 be kept confidential and not be provided or disclosed to any person other than: 1. the Applicant and the officers and staff of Jones Partners; 2. the Defendant; 3. the legal advisors of the Plaintiff and the legal advisors of the General Purpose Liquidator of the Plaintiff. 1. Pursuant to section 60-10 (1) (c) of Schedule 2 to Corporations Act 2001 (Cth), the Applicant, in his capacity as the liquidator of the Defendant, be entitled to remuneration for the period 8 August 2019 to 18 November 2020 in the sum of $92,590.50 plus GST. 2. Pursuant to section 60-10 (1) (c) of Schedule 2 to Corporations Act 2001 (Cth), the Applicant, in his capacity as the liquidator of the Defendant, be entitled to remuneration for the period 19 November 2020 to 27 April 2021 in the sum of $13,467 plus GST. 3. Pursuant to section 60-10 (1) (c) of Schedule 2 to Corporations Act 2001 (Cth), the Applicant, in his capacity as the liquidator of the Defendant, be entitled to remuneration for work performed as liquidator of the Defendant from 28 April 2021 to the lodgement of an end of administration return with the Australian Securities and Investments Commission, fixed in the sum of $4,000 plus GST. 4. Pursuant to section 90-15 (1) of Schedule 2 to Corporations Act 2001 (Cth) and / or section 63 (1) of the Trustee Act 1925 (NSW), the Applicant is justified, and would otherwise be acting reasonably, in drawing the amount of the remuneration determined in accordance with order 4 to 6, from the surplus of funds recovered from the realisation of the assets of the Anglewood Development [Unit] Trust. 5. Pursuant to section 90-15 (1) of Schedule 2 to Corporations Act 2001 (Cth) and / or section 63 (1) of the Trustee Act 1925 (NSW), the Applicant is justified, and would otherwise be acting reasonably, in paying any surplus from the realisation of the assets of the Anglewood Development [Unit] Trust, following payment of his remuneration in accordance with order 7, in accordance with section 556(1) of the Corporations Act 2001 (Cth). 6. Pursuant to section 90-15 (1) of Schedule 2 of the Corporations Act 2001 (Cth), if, after 7 days from the date of this order, the Applicant has not received an offer from Salvatore Morabito (or any other person) to take an assignment of the kind contemplated below and/or has not been provided with advice or information sufficient to satisfy the Applicant that the causes of action sought to be assigned are not statute barred or otherwise frivolous or vexatious, then the Applicant is justified, and would otherwise be acting reasonably, in refusing to assign to Salvatori Morabito or another person, each of the causes of action the Applicant has or may have as liquidator of the Defendant, or that the Defendant has or may have, relating to the following: 1. the payment of the amount of $128,209.86 to RBG Holdings Pty Ltd on 19 June 2013 from the trust account maintained by Atkinson Vinden Lawyers in the Defendant's name (Trust Account); 2. the payment of the amount of $50,000 to RBH Holdings Pty Ltd on 28 June 2013 from the Trust Account; 3. the payment of the amount of $20,442.69 to D Malnersic & S Polczynski trading as Polczynski Lawyers from the Trust Account pursuant to a garnishee order for debts issued to the Defendant by the Local Court of New South Wales on 31 August 2018; 4. the payment of the sum of $7,366.04 paid to Atkinson Vinden Lawyers in the period from 8 January 2013 to 28 January 2016 from the Trust Account; 5. any claim for breach of trust against Atkinson Vinden Lawyers arising from the making of the payments referred to in 9(i) to (iv) above 1. The Applicant's costs of and incidental to this interlocutory application be costs in the winding up of the Defendant.

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