Conlan (as liquidator of Rowena Nominees Pty Ltd) v Adams

STATUTORY CONSIDERATIONS 7 Subsequent to the Substantive Judgment and Orders Judgment, substantial amendments to the CA have been introduced by the Insolvency Law Reform Act 2016 (Cth) (ILRA 2016), including: (a) the insertion of Sch 2 to the CA - Insolvency Practice Schedule (Corporations), Div 60 which now deals with 'Remuneration and other benefits received by external administrators'; (b) the repeal and substitution of s 473 of the CA; (c) the repeal and substitution of s 499(3)-499(7) of the CA; (d) the repeal of s 504 of the CA; (e) the repeal of s 511 of the CA; (f) the repeal of Div 5 of Pt 5.6 of Ch 5 of the CA (which included s 552 to the CA). 8 However, similarly to the conclusion reached in Park & Muller (liquidators of LM Investment Management Ltd) v Whyte No 2 [2017] QSC 229 (at [65]), the recent amendments introduced by the ILRA 2016 do not apply to this case under the transitional provisions. 9 Section 1581(1) of the CA (as amended), within Pt 10.25 - Transitional provisions relating to the Insolvency Practice Schedule (Corporations), Div 3, Subdiv C - Remuneration and other benefits received by external administrators, provides: Despite the repeal of sections 449E and 473 and the repeal and substitution of subsections 499(3) to (7) of the old Act by Schedule 2 to the Insolvency Law Reform Act 2016, the old Act continues to apply in relation to the remuneration of an external administrator of a company who is appointed before the commencement day. (Emphasis added.) 10 For the purposes of Pt 10.25 of the CA, certain terms set out in bold text above are defined as follows in s 1551 of the CA: 'commencement day means the day on which Part 1 of Schedule 2 to the Insolvency Law Reform Act 2016 commences'. 'old Act means the Corporations Act 2001, as in force immediately before the commencement day and includes the old regulations'. 'old regulations means the Corporations Regulations 2001, as in force immediately before the commencement day'. 11 With respect to the definition of 'commencement day', notwithstanding the 'Commencement information' set out in the table under s 2(1) of the ILRA 2016, the ILRA 2016 was introduced with a split commencement date, with some provisions starting on 1 March 2017 and other provisions starting on 1 September 2017. Extra time was allowed for the insolvency industry to adjust to the new rules relating to external administration. In particular, reg 10.25.01(1) of the Corporations Regulations 2001 (Cth) provides in effect that the 'commencement day' for the purposes of Div 3 of Pt 10.25 of the CA (of which s 1581 of the CA forms part) is deemed to be 1 September 2017 (instead of 1 March 2017). 12 As Mr Morgan was appointed as a liquidator of the company on 7 September 2007, it is clear that he is 'an external administrator of a company who is appointed before the commencement day' of Pt 1 of Sch 2 to the ILRA 2016, as defined in s 1581 of the CA. Therefore, the CA as in force immediately prior to 1 September 2017 continues to apply in relation to the remuneration of the liquidator of the company in this case. 13 The relevant provisions of the CA as in force immediately prior to 1 September 2017 include: (a) s 499(3) of the CA, which provides that the remuneration to be paid to the liquidator may be 'fixed' by the committee of inspection, or, if there is no such committee, a resolution of the creditors; (b) s 511(1)(a) and s 511(1)(b) of the CA, which provide that the liquidator (or any contributory or creditor) may apply to the Court to determine any question arising in the winding up of a company, or to exercise all or any of the powers that the Court might exercise if the company were being wound up by the Court; and (c) s 552 of the CA, which provides that where there is no committee of inspection, the Court may, on the application of the liquidator, do any thing and give any direction or permission that is by this Part authorised or required to be done or given by the committee. 14 In respect of s 552 of the CA: (a) the words 'in this Part' in s 552 of the CA (which is within Pt 5.6 - Winding up generally) incorporate reference to s 513 of the CA (also within Pt 5.6) which provides that, except so far as the contrary intention appears, the provisions of the CA about winding up apply in relation to the winding up of a company whether in insolvency, by the Court or voluntarily; and (b) therefore, s 552 of the CA applies to the winding up of the company, this being a creditors' voluntary winding up. 15 In addition, the liquidator may apply to the Court to review the amount of the remuneration of the liquidator under s 473(6) of the CA (in the case of winding up by the Court) or s 504 of the CA (in the case of voluntary winding up), and the Court may confirm, increase or reduce that remuneration. 16 It is important to recognise, in the case of the company: (a) no committee of inspection was established; (b) therefore, in the absence of a committee of inspection, the meeting of creditors on 7 September 2007 fixed the remuneration of the liquidators and passed a resolution in terms: That the remuneration of the Liquidators, their partners and staff, be fixed on a time basis at the KordaMentha Summary of Hourly Rates as amended from time to time and that the Liquidators be empowered to draw their fees to a ceiling limit of $25,000.00 (plus GST and disbursements) for the period 7 September 2007 to the deregistration of the Company from funds available in the liquidation. (c) the liquidators subsequently received the Insurance Proceeds in August 2010; (d) as a consequence, additional work was occasioned that was not anticipated at the time of the 7 September 2007 resolution, including in relation to the complex issues referred to in Mr Morgan's affidavits filed in this proceeding and in proceeding WAD 98 of 2013, particularly an affidavit of 4 April 2013.

APPLICABLE PRINCIPLES 17 It is well settled that the onus is on the liquidator to establish that the remuneration claimed is reasonable and that it is the function of the Court to determine the remuneration by considering the material provided and bringing an independent mind to bear on the relevant issues: Sanderson v Sakr (2017) 93 NSWLR 459 (at [54]), citing Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96; Conlan (as liquidator of Rowena Nominees Pty Ltd) v Adams (2008) 65 ACSR 521 (at [28]-[29]). 18 Although Venetian Nominees and Conlan related to the legislation as it stood prior to the 2007 amendments, the principles referred to in those cases remain applicable. Further, it will be expected that the liquidator in supplying material to enable the Court to assess whether a remuneration claim was reasonable, would supply material by reference to the matters referred to in s 473(10) of the CA: Sakr per Bathurst CJ (at [54]). 19 In Venetian Nominees, the Full Court of the Supreme Court of Western Australia (Kennedy, Ipp and Wallwork JJ) set out the general principles applicable to the Court's assessment of a liquidator's remuneration. Those principles were summarised in the later Court of Appeal (McLure JA, Buss JA, Newnes AJA) decision in Conlan (at [28]) and cited by Davies J in Thackray v Gunns Plantations Ltd (2011) 85 ACSR 144 (at [60]) as follows: (a) A summary procedure is involved, not unlike that applicable to the taxation of solicitors' costs, which is not necessarily subject to all the rules that would apply in an action. (b) The initial task of the court is to consider whether the liquidator has made out a prima facie case on the evidence before the court that the remuneration claimed is fair and reasonable. The Court must make that assessment "bringing an independent mind to bear on the relevant issues" even though at that point there is no objector. (c) There is no absolute rule regarding the amount of detail required to support a remuneration claim. But the evidence relied on should be sufficient to enable potential objectors to review the amounts claimed and ascertain whether there are matters to which objection should be taken. If there is inadequate evidence supporting the claim, no order should be made. (d) If the liquidator establishes a prima facie case, the court should allow for an objection procedure to enable objections to be made. (e) If there are objectors to the claim or any part, the court should then establish the validity of those objections. 20 The meaning of a 'prima facie' case on the evidence before the Court, in this context, was explained as follows by McLure JA in Conlan (at [31]): The expression "prima facie" is used in Venetian Nominees to mean that the claimant's evidence is sufficient to enable the court to determine whether the claimed remuneration is fair and reasonable. So, for example, there must be evidence relating to the work done by particular persons, how long it took to do the work, their hourly rate and the reasonableness of the rate. 21 Thackray concerned an application by the receivers and managers of Great Southern Managers Australia Limited (receivers and managers appointed) (in liquidation), which was the responsible entity of 45 managed investment schemes at the time of their appointment, to establish their entitlement to be indemnified out of the scheme property of ten of those managed investment schemes, secured by equitable lien upon the lienable property, for their remuneration for work performed and expenses reasonably incurred in taking steps for the care, protection, preservation and realisation of the assets and property of those ten schemes. 22 In Thackray, Davies J (then in the Supreme Court of Victoria) noted that the receivers argued that the standard of proof on their application could not be higher (and, if anything, was lower) than the standard on insolvency practitioners for the purposes of s 473(3) of the CA, which is to establish that the remuneration claimed is fair and reasonable. However, her Honour went on to note (at [63]-[64]): [63] … Nevertheless, the receivers accepted that the principles set out Venetian Nominees Pty Ltd v Conlan are persuasive and that they should put sufficient evidence before the court to enable the court to determine that the amounts claimed are fair and reasonable. That involved providing sufficient detail of the work that was done and the expenses claimed for the court to assess the reasonableness of the remuneration claimed for that work and the reasonableness of the expenses incurred by the receivers. The reasonableness of remuneration may be adduced by evidence for example of an appropriate benchmark, such as the Insolvency Practitioners Association of Australia rates, for comparative work by persons with the relevant status and qualifications for that kind of work and justification of the hours spent. That amount can then be adjusted up or down to reflect other factors including: (a) complexity above the norm for the kind of work involved; (b) novelty and difficulty of the issues faced; (c) the ultimate outcome obtained by the claimant. [64] The court is looking for evidence of overcharging. Excessive charging may be indicated if there is a lack of proportionality between the cost of the work done relative to the value of the services provided. But there is no universal approach applicable in all circumstances by which the "reasonableness" of remuneration claimed or expenses incurred should be measured. The size, importance and complexity of the tasks performed are all factors to be taken into account. What is needed is sufficient information for the court and any objector to have a clear view about what was done so that an assessment can be made about the reasonableness of the claim. (Citations omitted.) 23 The function of the Court was summarised by Jackson J in Park (at [63]) as follows: Accordingly, the function of the court in determining the remuneration of the first applicants as liquidators is informed by the statutory criterion of reasonableness having regard to the list of relevant considerations to be taken into account. 24 The judgment in Park also contains the following observations, including a convenient summary of the decision of the Court of Appeal of the New South Wales Supreme Court in Sakr (at [160]-[164]): [160] Both parties accept that the determination of remuneration does not require a line by line analysis of the kind that sometimes occurs in the assessment of legal costs. It is also common ground that the application falls to be determined by a summary procedure in which the rules of evidence are not strictly observed. [161] The leading recent case on remuneration (decided after the argument in the present case) is Sanderson as liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr. The NSW Court of Appeal, constituted by a bench of five Judges, heard a liquidator's appeal from a decision where the primary Judge had reduced the liquidator's remuneration calculated on time-based charging, on the ground of proportionality, to a much lesser "ad valorem" amount. [162] The court held that in fixing a liquidator's remuneration the critical question is the determination of a reasonable remuneration having regard to the factors identified (in that case) under s 473(10) of the CA. In doing so, the court may fix remuneration on the basis of any method of calculation and, depending on the work done, a time-based calculation may or may not be appropriate. In determining reasonableness, the court should consider whether the work done is proportionate to the size of the insolvent estate, the benefit to be obtained from the work and the difficulty and importance of the tasks. Importantly, that work does not augment the funds available for distribution does not mean that a liquidator is not entitle [sic] to remuneration for it. [163] As appears from the summary I have set out previously, the extent of the description and necessity of the task performed in the course of the administration and the liquidation is brief. Nevertheless, in determining remuneration it is not the function of the court to hypercritically assess the day by day activities or tasks carried out in the course of a complex administration over a lengthy period of time with the benefit of hindsight. In this context, it is sometimes remarked that the remuneration available to insolvency practitioners should be sufficient to encourage them to carry out the important public function of the administration of insolvent entities for the benefit of the creditors, investors (whether company members or fund members) and the public administration of the insolvency laws in general. [164] As well, the preparation of detailed affidavit material setting out extensive support for the correlation of individual or groups of line items and charges to particular tasks and functions of sufficient utility to be classed as reasonable remuneration is itself a time consuming and expensive exercise. In the usual course, those costs must be added to the costs of the application for remuneration to be paid to the relevant administrators or liquidators. (Citations omitted.) 25 As mentioned above, s 504(1) of the CA gives the Court power, on the application of the liquidator at any time before the deregistration of the company, to review and increase the remuneration, which in this case was fixed by the creditors of the company at the meeting on 7 September 2007: see Re Westnet WA Infrastructure Holdings Limited (2015) 106 ACSR 583 (at [24(2)]). 26 Pursuant to s 504(2) of the CA, in exercising its powers under s 504(1), the Court must have regard to whether that remuneration is reasonable, taking into account 'any or all' of the matters referred to in the subsection to s 504(2) of the CA, including 'any other relevant matter'. 27 Section 504(2) of the CA provides for the same matters to be taken into account as those referred to in s 473(10) (which applies to review of remuneration of a liquidator in the case of winding up by the Court) and the same principles are to be applied in fixing remuneration under each provision: Sakr (at [12]), citing Templeton v Australian Securities and Investments Commission (2015) 108 ACSR 545 (at [28]).

EVIDENCE 28 Mr Morgan relies upon four affidavits: (1) his affidavit in the previous proceeding, sworn 4 April 2013; (2) his first affidavit in this proceeding, sworn 14 September 2018; (3) his second affidavit in this proceeding, sworn 9 October 2018; and (4) an affidavit of Ms Ferguson-Blight, sworn on 3 December 2018. 29 Ms Ferguson Blight's affidavit deals with various service and notice issues, which, amongst other evidence, lead to the conclusion that no relevantly affected party objects to the relief sought. I note that, despite this evidence, it is still necessary for me to satisfy myself as to the reasonableness of the remuneration claimed. Nonetheless, the absence of any opposition, particularly in the circumstances to which I will refer and where the claim was examined quite closely by ASIC, is a relevant consideration. 30 Mr Morgan's first affidavit attaches a detailed Remuneration Approval Report for the liquidation of the company, outlining the remuneration for which he seeks approval in accordance with the orders made in the Orders Judgment. That Report has been prepared by Mr Morgan in the format he normally uses in liquidators' remuneration, as adapted for the purposes of the liquidation of the company and involves the getting in and distribution of the Insurance Proceeds under s 562 of the CA. Appendix 5 to the Report contains a detailed analysis of the time spent and the amount charged at hourly rates by the liquidators and staff in the conduct of the liquidation of the company for the period from 30 January 2008 to 21 August 2018, which is also specifically verified on oath. 31 The evidence establishes that the work for which remuneration is claimed was done and recorded in accordance with well established practices under a system of time-recording, with each entry identifying by name who was responsible for the work and the persons position within the liquidators' firm, together with the hourly rates charged by the particular person. 32 No claim is made in relation to the liquidators' remuneration for the period from 7 September 2007 to 30 January 2008. At that time, the Insurance Proceeds had not become available to the company and the remuneration of the liquidators and staff for that period was approved by the creditors' resolution (to which I have referred) and paid from other funds on hand. However, for the purpose of this proceeding it is relevant to note from the creditors' resolution that from the commencement of the liquidation the creditors approved remuneration being calculated on the basis of time costing. 33 In the analysis at Appendix 5 to the Report, Mr Morgan has broken down the time spent and amounts charged by each of the liquidators and their staff members for the period from 30 January 2008 to 21 August 2018 into four different categories: (1) 'Recovery of [Insurance Proceeds] & investment'; (2) 'Application to Court for directions & mediations'; (3) 'Adjudication of claimants'; and (4) 'Statutory and other procedures'. 34 No claim has been made for Mr Morgan for remuneration in relation to time spent and amounts charged in the last category because it is accepted those sums do not come within the scope of answer 1.7 to the orders made in the Orders Judgment. 35 In respect of the first three categories, Mr Morgan seeks an order that the remuneration be paid to the plaintiff and it be approved and fixed in the sum of $483,390.50, or such other sum as is fixed by the Court, for the period from 30 January 2008 to 31 August 2018. He also seeks an order to approve and fix further remuneration at $23,000.00, or such other sum as is fixed by the Court, to finalise the liquidation of the company. He has undertaken to limit the remuneration claim to this figure even if the fees and expenses, including the time costs of liquidator and staff, exceed this amount. 36 As I have noted above, Mr Morgan's entitlement to deduct remuneration from the Insurance Proceeds was already determined in the Orders Judgment, in accordance with the Substantive Judgment (at [164]-[167]), where I said: [164] As indicated at the outset, since the hearing of this matter, quite extensive additional submissions have been supplied as well as other communications exchanged. [165] In particular, there have been communications about whether or not, if the Court took the view that Mr Morgan was entitled to remuneration arising by way of an equitable lien, Mr Morgan would make application to the Court as distinct from any committee of inspection or creditors for approval of remuneration. [166] In the interests of simplifying matters the parties have, in substance, agreed that "subject to any further order", Mr Morgan will apply to the Court for approval of his remuneration. [167] That is the nature of the order that I propose should be made. 37 Paragraphs 1.7 and 3 of the orders made in the Orders Judgment expressly provided for this application for approval of the remuneration to be paid, to be made to the Court on notice to ASIC, relevantly: 1.7 Does section 562 of the Corporations Act 2001 (Cth) entitle the Plaintiff to deduct, from the Insurance Proceeds, the Plaintiff's fees and expenses (including remuneration) incurred in determining the validity of claims in connection with the distribution of the Insurance Proceeds (including calling for and adjudicating on proofs of debts) and incurred in distributing the Insurance Proceeds to the rightful claimants? The Plaintiff is justified, and otherwise acting reasonably, in asserting an entitlement to an indemnity, secured by an equitable lien upon the Insurance Proceeds, for his fees and expenses (including remuneration) relating to the getting in of the Insurance Proceeds and all inquiries and assessments necessary to ascertain the parties to whom payment is to be made and distributing the Insurance Proceeds. It is appropriate for the Plaintiff to make an application to the Court for approval of the remuneration paid to him. The Court also finds, although it is unnecessary to do so, that the Plaintiff is entitled pursuant to s 562 of the Corporations Act to deduct from the Insurance Proceeds the Plaintiff's fees and expenses (including remuneration) relating to the getting in of the Insurance Proceeds and all inquiries and assessments necessary to ascertain the parties to whom payment is to be made and distributing the Insurance Proceeds. … 3. Within 28 days after the Plaintiff has adjudicated on claims and prior to distributing the Insurance Proceeds in the liquidation of Brighton Hall, the Plaintiff shall file and serve on the Australian Securities and Investments Commission an application to the Court for approval of the remuneration to be paid to the Plaintiff.

PRIMA FACIE CASE 38 Counsel contends that the evidence before the Court on this application, including the material in the Report, read with the chronology prepared by Mr Morgan, makes out a prima facie case (as defined in Venetian Nominees) that the amount of the claimed remuneration is fair and reasonable. 39 In particular, counsel submits and, having examined all of the relevant materials I accept, that the Court can be satisfied on a prima facie basis that: (1) Mr Morgan has demonstrated that the expenses incurred or work performed for which remuneration is claimed related only to the getting in of the Insurance Proceeds and that all inquiries and assessments necessary to ascertain the parties to whom payment is to be made and distributing the Insurance Proceeds; (2) the work was necessary and the liquidators were acting reasonably in incurring those expenses; (3) sufficient explanation has been provided to satisfy the Court as to the reasonableness of the amounts; (4) the liquidators have exercised commercial judgment in relation to the work that was done and the costs connected to the work; and (5) the amounts claimed were proportionate to the value of the services provided by the liquidators, given the importance and complexity of the issues in the liquidation of the company and the tasks performed. 40 I am satisfied that there has been ample opportunity for any appropriate objection to have been made. In this regard, I have examined the communications with ASIC in relation to the computation of the time that was charged and the Report generally. I have examined ASIC's queries in relation to that report which were much more than perfunctory and Mr Morgan's very detailed responses, which satisfied ASIC's queries. That material is produced in Mr Morgan's second affidavit, ASIC having been served with the first affidavit. It is clear that ASIC has not appeared to object and is satisfied with the answers that it has been given as a result of quite careful analysis. 41 Further, steps were taken to allow objections by those parties most likely to be affected by the orders to be made. As mentioned, Mr Morgan's application in this proceeding (by originating process filed on 14 September 2018 and Mr Morgan's first affidavit sworn and filed on the same date) was served on ASIC on 14 September 2018, in accordance with the Orders Judgment. A copy of Mr Morgan's originating process and first affidavit was also served on the solicitors for STL on the same date. Subsequent to filing this application and upon giving notice to ASIC, Mr Morgan has also responded promptly to queries raised by ASIC. 42 Counsel also contends that, in particular, in determining reasonableness, the work done being proportionate to the size of the insolvent estate, and in particular the benefit to be obtained from the nature of the work and the difficulty and importance of the tasks, are significant factors in going to show the reasonableness of the claims made.

CONCLUSION 43 In the circumstances of this case and for the reasons set out in my Substantive Judgment, Mr Morgan is entitled to fair remuneration, including additional work involved beyond raising the fund, both as a matter of general law and as a matter of statutory entitlement under s 562 of the CA. 44 Accordingly, orders should be made in terms of the minute reflecting the amended originating process, so as to enable a first and final distribution of the Insurance Proceeds to entitled claimants, after deduction of approved remuneration, to be made without a minimum of further delay and cost. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.