Doolan v Dare

the court: 1 This is an appeal from a judgment of a judge of this Court (Kiefel J) in which her Honour, inter alia, declared that the respondent, as trustee of the bankrupt estate of the appellant, "may claim remuneration in accordance with" reg. 8.08 of the Bankruptcy Regulations 1996 (Cth) ("the Regulations") and s 162(4) of the Bankruptcy Act 1966 (Cth) ("the Act"). 2 The relevant facts were as follows. 3 On 2 June 1999 a sequestration order was made against the estate of the appellant and the respondent became trustee of the estate. The appellant was discharged from bankruptcy on 24 June 2002. 4 The first meeting of creditors of the appellant was held on 11 October 1999. Section 64U(1) of the Act required the President of that meeting to ask the respondent to state the basis on which the respondent wished to be remunerated. The President, described by her Honour as "a representative of the [respondent]", did not ask that question and the respondent did not inform the meeting of the basis on which she wished to calculate her remuneration. 5 Neither the Act, nor the Regulations prescribe when the first meeting of creditors is to be held. The trustee may convene a meeting of creditors at any time (s 64(2)) and must do so if the creditors so direct, or request, in conformity with s 64(l). A meeting is to be commenced by a notice that, inter alia, sets out the agenda for the meeting (s 64B(4)). Section 64G prescribes the items to be included in the agenda, one of which (s 64G(l)) is as follows: 'If the trustee is a registered trustee who does not wish to be remunerated as prescribed by the regulations - if the meeting is the first meeting, approval of the remuneration proposed by the trustee, or, if the meeting is a subsequent meeting, a statement by the trustee of the amount of remuneration drawn before the meeting was held.' 6 As at 11 October 1999 s 64U of the Act read as follows: '64U Remuneration of registered trustee (1) If the meeting is the first meeting of the bankrupt's creditors and the trustee is a registered trustee, the President must then ask the trustee to state the basis on which the trustee wishes to be remunerated. (2) If the trustee states that he or she wishes to be remunerated as prescribed by the regulations, the minutes secretary is to record that statement in the minutes of the meeting. (3) If the trustee states a different basis for the fixing of his or her remuneration, the following provisions of this section have effect. (4) The President must invite the creditors and their representatives to propose a motion that the trustee be remunerated in accordance with the statement and, if no such motion is proposed, the trustee may propose such a motion. (5) A statement to be made by the trustee as mentioned in subsection (3) must: (a) if the trustee proposes to charge on a time-cost basis: (i) if there is only one rate at which the remuneration is to be calculated - state that rate; or (ii) otherwise - state the respective rates at which the remuneration of the trustee and the other persons who will be assisting, or will be likely to assist, the trustee in the performance of his or her duties are to be calculated; or (b) if the trustee proposes to charge on the basis of a commission upon money received by the trustee - state the rate of that commission; and must also state the periods at which the trustee proposes to withdraw funds from the bankrupt's estate in respect of the trustee's remuneration. (6) Any of the creditors and their representatives may ask the trustee questions about the proposed remuneration of the trustee and, if such a question is asked, the trustee must answer it. (7) Any of the creditors and their representatives may move an amendment to a motion proposed in accordance with subsection (4) so as to change in any way the basis on which the trustee is to charge or the periods at which the trustee may withdraw funds in respect of his or her remuneration or to refer the fixing of the trustee's remuneration to a committee of inspection. (8) If the meeting is not the first meeting of the bankrupt's creditors and the trustee is a registered trustee, the President must request the trustee to lay before the meeting a statement of the amount of remuneration drawn by the trustee from the funds of the bankrupt's estate before the meeting was held and the trustee must comply with the request.' 7 A new subsection 5A was inserted in s 64U by the Bankruptcy Legislation Amendment Act 2002 (Cth)("the Amending Act") and was said to apply to meetings held after the 18 December 2002. The new subsection read as follows: '(5A) The statement under subsection (3) must also include: (a) an estimate of the total amount of the trustee's remuneration; and (b) an explanation of the likely impact of that remuneration on the dividends (if any) to creditors.' 8 Section 64U, although headed 'Remuneration of registered trustee' is not in itself the source of the trustee's entitlement to remuneration. Section 64U merely prescribes what is to occur at the first meeting of creditors in relation to a trustee's remuneration, and in the case of s 64U(8), at later meetings of creditors. Section 64U(2), whilst requiring that a trustee's stated wish to be remunerated at the rate prescribed by the Regulations be minuted, does not require that effect be given to that wish. However, a motion fixing the trustee's remuneration passed in accordance with s 64U is a resolution for the purposes of s 162(1), discussed later in these reasons. 9 At a meeting of creditors held on 5 August 2002 the respondent claimed remuneration in an amount of $71,301.10 for the period 2 June 1999 to 28 June 2002 and sought to have a sum of $40,000 fixed as a sum available for future remuneration yet to be claimed. The claimed remuneration was calculated on the time spent by the trustee, and by persons under her control, at the rates per hour charged by the firm of chartered accountants of which the respondent was a partner. 10 The meeting passed a resolution in the terms sought by the respondent. The appellant did not accept that the resolution was valid. In due course the respondent conceded that the resolution did not bind the creditors and prepared another claim for remuneration calculated according to rates per hour set by the Insolvency Practitioners Association of Australia ("IPAA"). 11 On 8 January 2003 the appellant gave notice to creditors of a meeting of creditors to be convened on 24 January 2003 for the purpose of considering, and if it thought fit approving, a proposal set out in the notice for composition of the appellant's debts. The respondent refused to convene the meeting or to provide a report on the appellant's proposal. The meeting was held on the 24 January 2003 and the creditors purported to resolve to accept the proposed composition. The respondent did not attend the meeting. At a further meeting of creditors convened by the appellant on 12 February 2003 the creditors resolved to remove the respondent as trustee. The respondent did not attend that meeting. 12 By an application filed in this Court on 21 March 2003 the respondent sought an order that the quantum of the respondent's remuneration be reviewed and determined by the Insolvency Trustee Service Australia or be determined as directed by the Court. The respondent also sought declarations that the resolutions purporting to effect a composition of the appellant's debts, and removing the respondent as trustee, were invalid. On 20 February 2003 the appellant had filed an application in the Federal Magistrates Court seeking an order, inter alia, that "the trustee's costs and outlays ... be given in taxable form" and that the "trustee ... provide the creditors and bankrupt with receipts and vouchers for all costs and disbursements made in the administration, and ... make available a full account of all the financial transactions of the estate". The appellant's application was transferred to this Court and was heard concurrently with the respondent's application. Her Honour's reasons are in respect of both applications. It did not appear to be in issue that the orders sought by the appellant reflected the wish of a sufficient number of creditors that the respondent convene a meeting of creditors to consider the respondent's remuneration. Her Honour stated that the threshold question that arose in the proceedings was the respondent's remuneration and whether it was necessary for the respondent to return to a creditors' meeting "to allow them to consider her claim". 13 The applications came on for hearing on 8 December 2003. In submissions made to her Honour the respondent advised the Court that the order now sought by the respondent was a declaration that the respondent was entitled to remuneration in accordance with s 162(4) of the Act and reg. 8.08 of the Regulations. The respondent foreshadowed that a claim to remuneration based on those provisions would be prepared. At that time no claim to remuneration had been calculated or delivered to the creditors or to the appellant. The appellant contended that the creditors retained a right to fix the remuneration to be paid to the respondent and that the order sought by the respondent would pre-empt the right of the creditors to consider that question. 14 On 11 December 2003 her Honour made a declaration on the respondent's application that pursuant to s 162(4) of the Act the respondent "may claim remuneration in accordance with" reg. 8.08. By consent, her Honour made further declarations that the resolutions of the creditors purporting to accept a composition and to remove the respondent as trustee were invalid and of no effect. With regard to the appellant's application her Honour noted that undertakings had been given by the respondent to verify and discharge certain disbursements incurred in the administration of the estate. Otherwise the applications stood adjourned to a date to be fixed. 15 As at 8 December 2003 s 162 of the Act read as follows: '162(1) Subject to section 161B, the remuneration of the trustee of the estate of a bankrupt may be fixed, from time to time, by resolution of the creditors or, if the creditors so resolve, by the committee of inspection. (2) Where the remuneration of the trustee is to be, in whole or in part, a commission upon moneys received by the trustee, the trustee is entitled to commission upon all moneys received by the trustee (other than moneys received in the carrying on of a business of the bankrupt by him or her or under his or her supervision) at a rate not exceeding the rate prescribed by the regulations for the purposes of this subsection. (3) Where the trustee carries on a business of the bankrupt, or a business is carried on by the bankrupt under the supervision of the trustee, the trustee may be paid additional remuneration in the form either of a periodical payment based on, or a commission at the rate prescribed by the regulations for the purposes of this subsection on, the amount by which the estate is increased by reason of the carrying on of that business by him or her or under his or her supervision. (4) Where the remuneration of the trustee is not fixed by the creditors or the committee of inspection, the trustee is to be remunerated as prescribed by the regulations. (5A) The trustee must not withdraw funds from the bankrupt's estate in respect of his or her remuneration at intervals of less than one week. (6) Where a trustee receives remuneration for his or her services, a payment in respect of the performance by another person of the ordinary duties that are required by this Act to be performed by the trustee shall not be allowed in his or her accounts unless the payment was authorized by resolution of the creditors or by the committee of inspection. (6A) The trustee must, in relation to the trustee's remuneration, give such notices to the bankrupt and creditors as are required by the regulations. (7) This section does not apply in relation to the Official Trustee.' 16 The prescribed remuneration referred to in s 162(4) is set out in reg. 8.08 which reads as follows: '8.08 For the purposes of subsection 162(4) of the Act, the remuneration of a trustee is to be: (a) in accordance with the scale of charges that is: (i) set out in the IPAA Guide to Hourly Rates published by the Insolvency Practitioners Association of Australia; and (ii) applicable to the work to be remunerated; and (b) at the level of 85 per cent of those charges.' 17 Subsection 162(6A) was inserted by the Amending Act and came into force on 5 May 2003. On the same date reg. 8.12 (promulgated by the Bankruptcy Amendment Regulations 2003 (No 1) (SR 76 of 2003)took effect. Reg 8.12 provides as follows: '8.12 For subsection 162(6A) of the Act, a trustee must give the following notices to the bankrupt and creditors: (a) a notice that includes the basis and the method on which the trustee seeks to be remunerated, and, if appropriate, an estimate of the expected level of the trustee's remuneration; (b) if the trustee claims remuneration calculated by reference to an hourly rate - a notice that includes: (i) the type of work undertaken by the trustee and the trustee's staff; and (ii) the number of hours charged by each person; and (iii) the hourly rate charged for each person; and (iv) the total remuneration claimed; (c) a notice advising the bankrupt and creditors of their right, within 28 days of receiving notice of a trustee's claim for remuneration, to request the claim be taxed.' 18 No transitional provisions accompanied the introduction of s 162(6A) or reg. 8.12. 19 Where a trustee in bankruptcy is appointed in the expectation that he or she will be remunerated, and there is no prior agreement to act gratuitously, the Act assumes the existence of a right to be remunerated (s 109(1)(a)). Section 162 provides a mechanism for fixing the remuneration to be paid. (See: Mayne v Jaques (1960) 101 CLR 169; Adsett v Berlouis (1992) 37 FCR 201 at 210). The history of the "fixing" of fees of insolvency practitioners was considered and discussed by Finkelstein J in Korda; In the matter of Stockford Limited (Subject to Deed of Company Arrangement) (2004) 52 ACSR 279. It is to be noted, however, that the provisions of the Corporations Act 2001 (Cth), with which his Honour was concerned, differ substantially from the provisions of the Act that govern this matter. 20 There is nothing in the Act which indicates or requires that the provisions of subsection 162(1) are subject to any contrary wish stated by the trustee at the first meeting of creditors. If the trustee states at that meeting that he or she wishes to be remunerated at the prescribed rate, it would be open to the creditors to fix the trustee's remuneration under s 162(1), at least in relation to future work, at a lower rate. Section 162(4) does not prevent the creditors from fixing the trustee's remuneration in relation to work to be undertaken thereafter in a sum or at a rate less than that which would otherwise flow from the application of the prescribed rate. The trustee's entitlement to a minimum level of remuneration is expressly fixed by s 161B; it does not flow by implication from s 162(4), which is concerned with a different subject matter. 21 If the creditors fix the trustee's remuneration at less than the prescribed rate notwithstanding the trustee's stated wish to be remunerated at that rate, the trustee can choose whether to continue in the administration, or to ask the Court to accept his or her resignation under s 180 of the Act. In the event that the trustee and the creditors dispute the basis on which the trustee is to be remunerated and the trustee contends that the remuneration so fixed is not reasonable in the circumstances, the dispute between the parties would be a matter arising under the Act in respect of which the Court has jurisdiction under s 39B(1A) of the Judiciary Act 1903 (Cth), or under s 30 of the Act, and may make such orders as are necessary to resolve the dispute and determine the rights of the parties. (See: Jefferson v Official Trustee in Bankruptcy (2000) 175 ALR 671; Re Palmer; ex parte Taylor (1988) 18 FCR 271 at 283-284). 22 For these reasons we do not agree with the primary judge's statement that a trustee is permitted to elect to be remunerated at the prescribed rate, and that the creditors are powerless to interfere with that election if made, at least in relation to work to be performed thereafter. Entitlement to remuneration at the prescribed rate arises by operation of s 162(4) when work is done for which no remuneration is fixed, rather than by an election on the part of the trustee that he or she wishes to be remunerated at that rate for work whenever that work is undertaken. 23 In the present case, there is nothing to suggest that the respondent stated at the first meeting of creditors that she wished to be remunerated at the prescribed rate, and the history of the dealings between the respondent and the creditors suggests that she did not then wish to be remunerated at the prescribed rate. 24 It was not until December 2003, in the course of the proceedings before the primary judge, that the respondent sought to be remunerated at the prescribed rate, she having sought, ineffectively, at a previous meeting of creditors to obtain approval for remuneration at a higher rate. 25 Ordinarily, a right to remuneration arises as work is performed, and the trustee's entitlement to remuneration is not dependent on the exercise of the creditors' powers pursuant to s 162(1). (See: Jefferson at [18]). Section 162(4) is a self-executing provision which applies in relation to work done by a trustee, if, when the work was done, the trustee's remuneration was not fixed by the creditors, or the committee of inspection. 26 The case put on behalf of the appellant both before the primary judge and before the Full Court was that the creditors had a right to require the respondent's claim to remuneration to be submitted to a creditors' meeting before effect could be given to it. Subject to one possible qualification, we agree with the primary judge's conclusion that it was not 'necessary' for the trustee to submit her claim for remuneration for work done to a creditors' meeting, as s 162(4) operates where the trustee's remuneration for work done is not fixed by resolution, without any implication that the trustee must first seek approval for remuneration at the prescribed rate. Thus, for example, if the trustee and creditors cannot agree on the trustee's remuneration, but the creditors do not themselves fix what the trustee's remuneration is to be, s 162(4) operates in accordance with its terms, without the need to secure the creditors' agreement to the trustee's remuneration being fixed in accordance with the subsection. 27 Where s 162(4) operates, a trustee's claim for remuneration for work done may only be dealt with by the creditors by referral of the claim to taxation if a creditor is dissatisfied with the amount of the claim. (See: Reg 8.09). The Act distinguishes between notice given by the trustee of the basis on which a future claim for remuneration will be prepared and notice of a claim for remuneration for services performed. 28 The possible qualification to which we refer arises from the introduction of s 162(6A) and reg 8.12 on 5 May 2003. 29 No argument based on s 162(6A) was put to the primary judge, nor was s 162(6A) referred to in the course of submissions to the Full Court. After reserving judgment we invited the parties to make submissions on the effect on the construction of s 162 and s 64U of the Act, and the Regulations, of the introduction of s 162(6A) and reg 8.12 from 5 May 2003 and the application thereof to the facts of this case. 30 Senior counsel for the appellant submitted, and counsel for the respondent agreed, that the amendments 'do not … have a direct effect on the construction of s 64U and s 162 of the Bankruptcy Act 1966 on the facts of this case'. No submission was put that s 162(6A) in any way qualified the trustee's entitlement under s 162(4) in relation to the period after 5 May 2003. Nor was any submission put either to the primary judge or to the Full Court that the trustee had failed to comply with s 162(6A). 31 In the light of that consensus, it is not appropriate for us to determine that question (c.f. Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) 201 ALR 271 at [41]; but see Cakmak v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 135 FCR 183 at 201, 203). However, lest it be thought that the importance of the amendments has been overlooked we make the following comments. 32 The obligation to provide a notice under reg. 8.12(a) of "the basis and the method on which the trustee seeks to be remunerated" is not restricted to the first meeting of creditors to which the provisions of s 64U of the Act apply. It is a continuing obligation. Furthermore, the trustee is to give a notice even if s 162(4) and reg. 8.08 are to be relied upon by the trustee to fix the scale of charges by which the trustee will calculate the remuneration claimed. 33 It is apparent that the purpose of s 162(6A), reg. 8.12, and s 64U(1)-(7) is to better inform the creditors, and the bankrupt, of the cost, or likely cost, to the estate of the trustee's administration. 34 It is plain that from 5 May 2003 the Act and Regulations imposed a duty on the trustee to provide a notice to creditors, and the bankrupt, that would inform those parties of the likely impact on the estate of the cost of the trustee's administration. No time for performance of that duty, or penalty for non-performance, is provided in the Act but, at least in relation to bankruptcies occurring after 5 May 2003, it may be taken that it is an obligation to be performed within a reasonable period from the date of the trustee's appointment and before the conduct of the first meeting of creditors referred to in s 64U, to enable the creditors to have sufficient information to exercise the rights provided by that section. Also, at least from 5 May 2003, it may well be that the creditors have the power to fix remuneration in respect of services provided after that date not only prospectively but also retrospectively in the event that the trustee has not performed the duty imposed by the Act to provide notice of the intended basis of remuneration. 35 In reconciling the terms of s 64U and s 162 of the Act it is necessary to accept that in some degree the Act has left at large the operation of those provisions. However, it is possible to discern, by necessary implication, how s 64U and s 162 are intended to apply. 36 The object of the duty imposed on the trustee to provide a notice to the creditors, and the bankrupt, of the proposed basis for remuneration is to have that question settled early in the administration and, if possible, at the first meeting of creditors. Of course, upon appointment as trustee of a bankrupt estate the trustee is entitled forthwith to the minimum remuneration fixed by s 161(B). 37 If the trustee has complied with the Act by providing such a notice and within a reasonable period thereafter the creditors have not acted to fix another basis of remuneration in response to that notice it may be taken that the trustee will be entitled to claim remuneration on the basis prescribed by the regulations pursuant to s 162(4). 38 However, if the trustee fails to carry out the duty to provide the notice to creditors, and to the bankrupt, it may be the intention of the Act that the creditors be empowered by s 162(1) to fix the basis remuneration both prospectively and retrospectively until such time as the required notice is given by the trustee, at which point the creditors will have a reasonable time to have the trustee convene a meeting of creditors pursuant to s 64(1) of the Act to consider a resolution to fix the basis for remuneration pursuant to s 162(1). 39 Returning to the arguments submitted on the hearing of the appeal it follows from our conclusion set out in [22] that at any time in the course of the administration of the estate the creditors could require the respondent to convene a meeting at which the creditors could fix the rate at which the respondent was to be remunerated for work to be performed thereafter. Of course, the application brought by the appellant as a bankrupt was not an application by the creditors, but it appears to have been common ground that the steps taken by the appellant reflected the wish of a significant number of creditors that they be given the opportunity to consider the respondent's remuneration. But for the declaration made by her Honour on 11 December 2003 which, in effect, fixed the rate at which the respondent was to be remunerated for work done and for work to be done, the creditors could have required the respondent to convene a meeting at which the creditors could fix the remuneration of the respondent for work to be done by the respondent thereafter. 40 As we have said the power exercisable by the creditors under s 162(1) was not subject to the exercise of an election by the respondent to be remunerated under s 162(4). Therefore, the opinion expressed by her Honour that there was no practical utility in requiring the matter of the respondent's remuneration to be considered by a meeting of creditors was affected by error to the extent that it was based on the conclusion that once the respondent had elected to accept remuneration at the level set by s 162(4) the creditors were unable to fix the remuneration of the respondent for work performed thereafter. 41 It follows from our earlier reasoning that the declaration made by the primary judge should have been limited to the period up to 11 December 2003. The question whether the judgment of her Honour was to be varied in that respect was a live issue in the appeal at the time the notice of appeal was filed on 23 December 2003. On 16 April 2004, however, that question became moot when the respondent, using funds borrowed from her firm, paid in full the claims of all unsecured creditors in the estate thereby extinguishing their interests in the estate. That step was taken by the respondent to prevent the creditors resolving to remove the respondent as trustee of the estate at a meeting of creditors to be held on 20 April 2004. That meeting had been convened pursuant to a requisition given by the creditors to the respondent in March 2004. The foregoing conduct of the respondent grounded the order of the Court on 27 May 2004 that the respondent be removed as trustee of the estate. 42 Although the appeal must be dismissed, there being now no utility in disturbing the orders made by the primary judge, the question remains as to what order, if any, should be made on the costs of the appeal. The parties will be invited to make submissions on that issue and in the absence of submissions there will be no order as to costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justices Lee, Merkel & Hely.