Harker-Mortlock v Commonwealth Bank of Australia

Supreme Court of NSW|2022-02-07|Before: Williams J, Re J

Introduction

These reasons concern an application by the first plaintiffs in these proceedings, Mr Sule Arnautovic and Mr Andrew Spring (the Applicants), in respect of their remuneration for work in their capacities as voluntary administrators and subsequently deed administrators of Baixin Group Pty Limited (the Company) and receivers and managers of the assets and undertaking of the Baixin Investment Unit Trust (the Trust).
The application was made by interlocutory process filed on 12 January 2022 and supported principally by an affidavit of Mr Arnautovic affirmed on 24 April 2020 and an affidavit of Mr Spring affirmed on 13 December 2021.
The Applicants also relied on an affidavit of Ms Mary Daoud, solicitor, which established that shareholders and creditors of the Company and unit holders of the Trust were notified of the interlocutory application. The Australian Securities and Investments Commission (ASIC) was also notified. Mr Krochmalik of counsel appeared for the Applicants on the hearing of the interlocutory application on 7 February 2022. There was no appearance on behalf of shareholders, creditors, unit holders or ASIC.
For the reasons that follow, I have decided to make orders determining the Applicants' past remuneration in the amount sought, determining their future remuneration in an amount up to the capped amount sought, permitting their remuneration to be paid out of the assets of the Trust and discharging and releasing them as receivers and managers upon the filing of their final account with the Court. For abundant caution, there will be an order granting liberty to the shareholders, creditors, unit holders and ASIC to apply to vary those orders, such liberty to expire four weeks after the last date for filing of the final account.

Relevant facts

The Applicants were appointed as voluntary administrators of the Company on 20 February 2020. The appointment was made by resolution of the creditors of the Company at the first creditors meeting. The Applicants replaced administrators that had been appointed ten days earlier by special resolution of the Company's shareholders.
The Applicants' initial investigations indicated that the Company carried on business solely in its capacity as trustee of the Trust and owned three real properties and shares in four companies that conducted a chain of restaurant businesses. It appeared from those initial investigations that all of those assets had been held by the Company on the terms of the Trust, save for some uncertainty in relation to the shares in two of the companies that conducted the restaurant businesses.
The trust deed in respect of the Trust provided that the office of the trustee became vacant in the event that an administrator was appointed to the trustee. No steps were taken to appoint a new trustee after the appointment of the first administrators by special resolution of the Company's shareholders on 10 February 2020. Accordingly, the Company has been a bare trustee of the assets of the Trust since that time. As a bare trustee, the Company has an obligation to safeguard the assets of the Trust. The Company's right of indemnity against the assets of the Trust and an equitable lien to secure that right of indemnity has survived the vacation of the office of trustee under the trust deed. [1]
A proposal emerged for a deed of company arrangement in respect of the Company that contemplated dealings with the Trust assets. In that context, Black J made orders on 28 April 2020 appointing Mr Arnautovic and Mr Spring as receivers and managers of the assets of the Trust, with all of the powers that a receiver has in respect of the business and property of a company under s 420 of the Corporations Act 2001 (Cth). Black J made an order that the receivers not distribute the assets of the Trust to creditors or beneficiaries without the further direction of the Court, other than in respect of any lawful distribution authorised by a deed of company arrangement. His Honour also ordered that the costs, expenses and remuneration of the receivers in acting as the receivers and managers of the assets and undertaking of the Trust be paid from the Trust assets.
The Applicants' further investigations confirmed that "substantially all of the operations and business carried on by the Company was done so in its capacity as trustee of the Trust" and that "the Company was at all times operating and carrying on business at least substantially (if not completely) in its capacity as trustee of the Trust". Accordingly, the Applicants take the view that all of the liabilities of the Company were incurred in its capacity as trustee of the Trust.
That view is well supported by the available evidence. The Applicants' affidavits do not identify any business activities of the Company that were not carried on in its capacity as trustee. The Applicants' further investigations in relation to the ownership of the shares in the two companies referred to at [6] above revealed strong evidence that the Company had held those shares in its capacity as trustee of the Trust and consequently held those shares as bare trustee from the time of the appointment of administrators to the Company. All general ledgers maintained by the Company were general ledgers for the Trust. Those general ledgers included two accounts labelled as investments in the two companies in question, which recorded loans made by the Trust to those two companies that the Applicants believe relate to the Company's shareholding in the two companies.
On 2 June 2020, the Applicants executed a deed of company arrangement (DOCA) on behalf of the Company and as deed administrators. The DOCA represented the outcome of the discussions and negotiations that commenced prior to the orders made by Black J appointing the Applicants as receivers and managers of the Trust assets and undertaking.
The DOCA provided for the Company's director, Mr Yi Jiang, to contribute $450,000 to a deed fund that was to be distributed to creditors after payment of the costs and remuneration of the voluntary administrators, the receivers and the deed administrators and any liabilities incurred by the administrators and deed administrators in connection with the administration of the Company and the administration of the DOCA.
The $450,000 contribution was required to be paid in two instalments. The first instalment was payable on the date of satisfaction of certain conditions (including the execution of a deed deferring the claims of certain creditors of the Company) and the second instalment was payable on completion of the DOCA.
In consideration for performance of Mr Jiang's obligations under the DOCA, the deed administrators were obliged to cause the transfer or assignment to "NewCo" of the Company's shares in the four companies referred to at [6] above and all real property registered in the name of the Company. "NewCo" was a company to be established and controlled by Mr Jiang or a company nominated by Mr Jiang.
Completion of the DOCA, including the transfer of the Trust assets as referred to immediately above, ultimately occurred on 18 September 2020. The Applicants as deed administrators had agreed to several extensions of time for completion requested by Mr Jiang in consideration for an increase to the amount of Mr Jiang's contribution to the deed fund.
The only matter that remains outstanding under the DOCA is for the Applicants as deed administrators to pay a final dividend from the deed fund in accordance with the provisions of the DOCA referred to at [12] above. The DOCA will then terminate by operation of clause 18.2(a)(iii).
Orders determining the amount of the Applicants' remuneration as administrators, receivers and managers and deed administrators are the only orders that are required before a final dividend can be paid to creditors. The deed fund comprises the proceeds of the assets of the Trust. The distribution of the fund to creditors of the Company in accordance with the DOCA (including the provision requiring the Applicants' remuneration to be paid first) is authorised by the orders made by Black J on 28 April 2020. As the Applicants submitted, the distribution of the deed fund to creditors of the Company gives effect to the Company's right of indemnity, as the former trustee of the Trust.
The Applicants seek orders determining their remuneration in their capacity as administrators, receivers and managers and deed administrators. The Applicants find it difficult to distinguish between their remuneration for work done in their different capacities because, according to Mr Spring's evidence, there is considerable overlap between the work done in those capacities. By way of example, Mr Spring explains that the work done to achieve completion of the DOCA was done in the Applicants' capacity as deed administrators in that the work was required by the DOCA, but was also done in their capacity as receivers and managers of the Trust assets because it was necessary to preserve and realise the assets of the Trust for the benefit of the creditors to whom the Company had incurred liabilities in its capacity as trustee.
The interlocutory process stated that the total amount of the Applicants' remuneration was $163,079 (excluding GST). During the hearing of the interlocutory process, that amount was increased to $179,557 (excluding GST). The increase resulted from the correction of a mathematical error in adding the various components of the remuneration described in Mr Spring's affidavit.
Almost all of the remuneration that is the subject of the present application was approved by resolutions of the Company's creditors passed at the adjourned second creditors' meeting on 20 May 2020. All but one of the resolutions were passed by the creditors unanimously. In relation to the one resolution that was not passed unanimously, no creditor voted against the resolution. One creditor abstained from voting.
At the time the creditors' resolutions were passed, the Applicants did not appreciate that their remuneration was required to be determined by the Court. Consequently, the Applicants withdrew $153,069.50 from the deed fund for their remuneration, being almost the whole of the amount purportedly approved by the creditors' resolution.

Nature of the application and applicable principles

The Applicants seek: 1. orders determining their remuneration in their capacity as administrators, receivers and managers and deed administrators in a total amount of $179,557 (excluding GST), comprising $167,557 (excluding GST) in respect of work undertaken from 20 February 2020 to date and a further amount capped at $12,000 (excluding GST) for work that remains to be done; 2. an order that the Applicants' remuneration (as determined by the Court), costs and expenses be paid out of the assets of the Trust nunc pro tunc; 3. an order requiring the Applicants to file with the Court within four weeks their final account as receivers and managers of the property, assets and undertaking of the Trust; 4. an order that, upon the filing of that final account, the Applicants be discharged as receivers and managers of the property, assets and undertaking of the Trust; 5. an order granting liberty to interested persons to apply to the Court to set aside or vary the orders within three weeks from the date of the orders; and 6. an order requiring the Applicants to provide a copy of the orders to the Company's creditors and shareholders, the unit holders of the Trust and ASIC in the manner prescribed by the orders made by Black J on 28 April 2020.
I am satisfied by Ms Daoud's affidavit referred to at [3] above that the interlocutory process was served on shareholders and creditors of the Company, unit holders of the Trust and ASIC prior to the hearing on 7 February 2022. As I have already mentioned, there was no appearance on behalf of any person other than the Applicants at that hearing.
To the extent that the application is for determination of the Applicants' remuneration as court-appointed receivers of the Trust assets, the principles summarised by Brereton J (as his Honour then was) in Re Say Enterprises Pty Ltd apply: [2] "The remuneration of court-appointed receivers is provided for by (NSW) Uniform Civil Procedure Rules 2005, r 26.4 which provides that a receiver is to be allowed such remuneration (if any) as may be fixed by the Court. Founding on what Young CJ in Eq said in Ide v Ide, but drawing on the qualifications expressed in later cases, the relevant principles may be restated as follows: (1) A receiver is entitled to the costs, charges and expenses properly incurred in the discharge of the receiver's ordinary duties, or in the performance of extraordinary services that have been sanctioned by the Court. (2) The ultimate question is what amount of remuneration is 'reasonable', and this involves considering whether the work in respect of which remuneration is claimed was reasonably undertaken in the due course of the receivership, and whether the amount claimed for it is a fair and reasonable reward for it. The objective is to award a sum or devise a formula which will reasonably and fairly compensate the receiver for the time and trouble expended in the execution of his or her duties and the responsibility he or she has assumed. (3) The receiver bears the onus of justifying the reasonableness and prudence of the tasks undertaken for which remuneration is sought, and the reasonableness of the remuneration claimed for them. (4) Remuneration may be allowed on the basis of a fixed salary, a commission on receipts, or a quantum meruit having regard to the time, trouble and responsibility involved. It is a matter for the Court to determine what basis is appropriate in the particular case, having regard to the principle that the remuneration must be reasonable. (5) If a time-based approach is adopted, the Court is guided by professional scales of charges, with emphasis on the broad average or general rate charged by persons of the relevant status and qualifications who carry out the relevant type of work. The Court will usually act on time sheets created in the receiver's office, provided that they do significantly more than merely detail the total number of hours spent by the receiver and officers of particular grades on his or her staff. (6) By analogy, the task involves consideration of the matters referred to in Corporations Act, s 425(8), which applies to receivers appointed under an instrument, namely: (a) the extent to which the work performed by the receiver was reasonably necessary; (b) the extent to which the work likely to be performed by the receiver is likely to be reasonably necessary; (c) the period during which the work was, or is likely to be, performed by the receiver; (d) the quality of the work performed, or likely to be performed, by the receiver; (e) the complexity (or otherwise) of the work performed, or likely to be performed, by the receiver; (f) the extent (if any) to which the receiver was, or is likely to be, required to deal with extraordinary issues; (g) the extent (if any) to which the receiver was, or is likely to be, required to accept a higher level of risk or responsibility than is usually the case; (h) the value and nature of any property dealt with, or likely to be dealt with, by the receiver; (i) whether the receiver was, or is likely to be, required to deal with: (i) one or more other receivers; or (ii) one or more receivers and managers; or (iii) one or more liquidators; or (iv) one or more administrators; or (v) one or more administrators of deeds of company arrangement; (j) the number, attributes and behaviour, or the likely number, attributes and behaviour, of the company's creditors; (k) if the remuneration is ascertained, in whole or in part, on a time basis: (i) the time properly taken, or likely to be properly taken, by the receiver in performing the work; and (ii) whether the total remuneration payable to the receiver is capped; (l) any other relevant matters. (7) Many of those factors - in particular, pars (d) - (e) and (g) - (h) - have as their unifying theme the concept of proportionality (being the relationship of the work done and the remuneration claimed to the value of the estate), which is an important consideration in determining reasonableness. (8) It will rarely be appropriate for a Judge to review a decision of a Registrar on remuneration on an item-by-item basis. (9) In respect of disbursements, no Court approval or specific order is necessary in the absence of a challenge, although receivers should scrutinise them to ensure that they are reasonable and properly payable, and the Court has an inherent jurisdiction to review receivers' disbursements as they are officers of the Court. However, a receiver may seek a direction that he would be justified in paying certain disbursements in order to obtain prior protection in respect of such a disbursement."
To the extent that the application relates to the Applicants' remuneration for work undertaken in their capacity as voluntary administrators, and later deed administrators, of the Company, the Applicants invoke the Court's inherent equitable jurisdiction to allow a trustee remuneration, costs and expenses out of trust assets. That jurisdiction extends to persons such as liquidators and administrators who are, for all practical purposes, controlling a trustee. [3]
The Applicants' submissions refer to the judgment of Brereton J in Re North Food Catering Pty Ltd, [4] in which his Honour summarised the position as follows, drawing on the judgment of Black J in Re IMF Global Australia Ltd (in liq) (No. 2) [5] : "(1) The court has an inherent equitable jurisdiction to allow a trustee remuneration, costs and expenses out of trust assets, and this extends to a person such as a liquidator who is, for practical purposes, controlling a trustee (see Re Application of Sutherland [2004] NSWSC 798; (2004) 50 ACSR 297; Trio Capital Ltd (admin appointed) v ACT Superannuation Management Pty Ltd [2010] NSWSC 941; (2010) 79 ACSR 425). (2) The court may decline to exercise that jurisdiction where the company does not solely act as trustee and has sufficient beneficial assets to meet the liquidators' remuneration costs and expenses and where the work done by the liquidator in relation to trust assets may properly be treated as done for the purposes of winding up the company affairs. Thus, generally where a company has assets which are not held on trust, the liquidators' costs should usually fall on its non-trust assets (see Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674 at 685-689; Re Greater West Insurance Brokers Pty Ltd [2001] NSWSC 825; (2001) 39 ACSR 301). (3) Where the company has both trust assets and assets held beneficially by the company, the costs can be apportioned such that the remuneration attributable to the statutory liquidation work would fall on the assets beneficially owned by the company, whereas that which related to administering the trust property might fall on the trust assets (see Re French Caledonia Travel Service Pty Ltd (in liq) [2003] NSWSC 1008; (2003) 59 NSWLR 361; 48 ACSR 97 at [212])."
In that case, Brereton J concluded following a review of relevant authorities that, where a company's sole business has been to act as trustee of a trust and the company has no assets other than the assets that it holds on the terms of the trust, liquidators of the company are entitled to be paid their remuneration for their work in administering the trust assets and for their general liquidation work out of the trust assets. [6]
The principles applicable to the inherent equitable jurisdiction are those summarised by Gleeson J in In the matter of BBY Ltd (receivers and mgrs. apptd) (in liq): [7] "52 The Court's approach when exercising its inherent equitable jurisdiction to allow remuneration out of trust assets in connection with the administration of a trust fund is described in In the matter of Houben Marine Pty Ltd (in liq) [2018] NSWSC 745 at [20]-[21], where I said: [20] In allowing remuneration to the liquidator, the Court treats the work done in administering the trust as an incident of the liquidation, and approaches the application for remuneration as analogous to one by an official liquidator for approval of remuneration: Alphena Pty Ltd (in liq) v PS Securities Pty Ltd (ACN 141 021 445) (as trustee of the Joseph Family Trust) [2013] NSWSC 447; (2013) 94 ACSR 160 at [53], [63]-[64]. Accordingly, regard may be had, by analogy, to the factors listed in the now repealed s 473(10) of the Corporations Act (which continues to apply to the administration of Houben by reason of the transitional provisions in the Corporations Act, s 1581(1)). [21] The essential question which arises on the present application, as arises under the applicable provisions of the Corporations Act with respect to court appointed liquidators, is whether the remuneration of which approval is sought is 'reasonable': Sanderson, as liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr [2017] NSWCA 38 (Sakr). 53 The essential task of the Court, constituted by a judge, when asked to approve remuneration of a liquidator is encapsulated in the statement by Barrett J in Re Anderson Group Pty Ltd [2002] NSWSC 764 ; (2002) 20 ACLC 1607 at [12]: In the ordinary course, the process of determination comes down essentially to ensuring that the work upon which the claim was based was work undertaken in the due course of administration and that the amount claimed for having done that work is a fair and reasonable reward for it. 54 That proposition was repeated by the Court of Appeal in Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr (2017) 93 NSWLR 459; [2017] NSWCA 38 (Sakr) at [69]-[72], where Bathurst CJ (the other members of the Court agreeing) said that the essential task of the Court is to allow reasonable remuneration. 55 As explained in Re Houben Marine at [23]-[25], several of the propositions in Sakr have relevance, by analogy, to an application such as the present for approval of a liquidator's remuneration out of the assets of a trust of which the company in liquidation is a trustee. 56 First, the onus is on the liquidator to establish that the remuneration claimed is reasonable. It is the function of the Court to determine the remuneration by considering the material provided and by bringing an independent mind to the relevant issues: Sakr at [54]. 57 Second, the question of proportionality - in terms of work done as compared with the size of the property the subject of the administration or the benefit to be obtained from the work - is an important consideration in determining reasonableness: Templeton v Australian Securities and Investments Commission [2015] FCAFC 137 at [32]; (2015) 108 ACSR 545. The work done must be proportionate to the difficulty and importance of the task in the context in which it needs to be performed: Templeton citing McLure JA in Conlan (as liquidator of Rowena Nominees Pty Ltd) v Adams [2008] WASCA 61; (2008) 65 ACSR 521 at [47]. This is what is encompassed in assessing the value of the services rendered: Sakr at [55]. 58 Third, the mere fact that the work performed does not lead to augmentation of the funds available for distribution does not mean that the liquidator is not entitled to be remunerated for it. Provided it was reasonable to carry out the work and the amount charged is reasonable, there is no reason a liquidator should not recover remuneration for undertaking such work: Sakr at [57]-[58]. 59 Counsel for the liquidators submitted that the present applications are analogous to one by a liquidator for approval of remuneration and that the Court may have regard to the factors listed in the statute for approval of the liquidators' remuneration. So much can be accepted insofar as the factors in s 60-12 of the Insolvency Practice Schedule, being Schedule 2 to the Corporations Act, may be taken as an indication of the types of considerations that inform the question of reasonableness in the present case…"
As s 60-10 of the Insolvency Practice Schedule (Corporations) is not directly applicable to the present application, I need not be troubled by the unusual circumstance that most of the remuneration in respect of which orders are now sought has already been approved by a resolution of creditors of the Company. If s 60-10 did apply to the present application, that circumstance would preclude the Court determining the remuneration. [8]
As the Applicants submitted, and as will be apparent from the principles extracted above, there is no substantive difference between the principles to be applied in determining their remuneration as external administrators in the exercise of the Court's inherent equitable jurisdiction referred to above and the principles that apply to the determination of their remuneration as court appointed receivers and managers of the assets and undertaking of the Trust.

Remuneration

Despite the overlap between the Applicants' roles as voluntary administrators and deed administrators on the one hand and their role as receivers and managers of the Trust assets on the other hand, the Applicants have undertaken an exercise of retrospectively allocating items of work carried out to one of those roles. The Applicants have then adopted that allocation structure in presenting evidence of the time taken and the amount of remuneration claimed in respect of work done by the Applicants and their staff. The itemised time records and the remuneration summary for each of those three categories are further broken down into the sub-categories of administration, assets, creditors and investigation.
The total remuneration recorded in the remuneration summaries for work done to date amounts to $175,197.50, being: 1. remuneration of $109,221.50 allocated to the voluntary administration; 2. remuneration of $7,329.50 allocated to the receivership; and 3. remuneration of $58,646.50 allocated to the deed administration.
The total amount of $175,197.50 relates to work that has in fact been done and does not include any allowance for work that remains to be done. The Applicants have discounted the amount claimed for past work in the present application to $167,557, as referred to at [22] above.
On the basis of my broad review [9] of the itemised time records and Mr Spring's evidence describing the work undertaken, I accept the Applicants' submission that the work may be summarised as follows: 1. investigating the assets of the Company and the interaction between the Company and the Trust; 2. applying for the orders appointing the Applicants as receivers and managers of the Trust property; 3. extensive dealings with the DOCA proponent (Mr Jiang), including in relation to several iterations of the proposed DOCA; 4. preparing a report for creditors comparing the benefits and estimated outcome for creditors from the proposed DOCA with the outcome of a liquidation; 5. convening and holding the second meeting of creditors at which the creditors resolved that the proposed DOCA be executed by the Company; 6. dealing with the Applicants' solicitors in relation to the drafting of the DOCA and associated documents (including documents giving effect to the transfers of shares and real property required by the DOCA); 7. dealing with requests by Mr Jiang for extensions of time to perform his obligations under the DOCA, including obtaining advice in relation to those requests; 8. dealing with matters affecting the Company's shareholding in Lotus Barangaroo Pty Ltd and litigation brought by that company (to which the Company was made a party); 9. liaising with the Company's directors and creditors; 10. calling for and adjudicating on proofs of debt lodged by creditors in the deed administration, noting that five creditors' claims were admitted in the total amount of $1,900,175.69, nine creditors' claims totalling $5,836,694.49 were rejected and a further three claims were rejected on the basis that they were duplicates of one of the claims that the deed administrators had admitted to proof; 11. issuing statutory reports to creditors, preparing and lodging Business Activity Statements with the Australian Taxation Office and lodging documents with ASIC; and 12. preparing the present application.
With the exception of the two last mentioned items, all of the work referred to above was completed by the end of 2020. Proofs of debt were called for and adjudicated upon during the period between completion of the DOCA on 18 September 2020 and the end of November 2020. Thus, very little work has been done and very little remuneration is charged in respect of the 2021 calendar year.
As the Applicants submitted, most of the work was undertaken in connection with the DOCA, through which substantial assets were realised through contributions to the deed fund totalling $495,000 for the benefit of the Company's creditors. When those contributions are added to cash at bank, rent received, GST and tax refunds and a small amount of interest, total receipts in respect of the Company were $535,605.81.
I am satisfied that the work described above was reasonably necessary in the circumstances of this administration, deed administration and receivership, having regard to the Company's former role as trustee of the Trust and ongoing obligations as bare trustee, the litigation affecting one of the assets held by the Company as bare trustee, the manner in which the DOCA negotiations played out and the numerous subsequent requests for extensions of time for completion of the DOCA and the value of creditors' claims.
The amount of remuneration claimed for work done to date has been calculated on a time-costed basis.
Mr Spring deposes that tasks required to be undertaken during the administration, deed administration and receivership were delegated to and handled by staff with an appropriate level of seniority, knowledge and skill for that specific task.
My review of the remuneration summaries and itemised time records reveals that most of the work has been done by Mr Otim Oluk, a senior manager with over 15 years' experience in business recovery, reconstruction and insolvency at a charge out rate of $565 per hour. A significant amount of work was also done by each of the Applicants (with charge out rates of $645 per hour) and Mr Jaidon Neaves (with a charge out rate of $395 per hour). Mr Neaves is a senior analyst with five years' experience. Other work has been done by administrative staff charged at lesser rates. I am satisfied based on my broad review of these records that the work has been undertaken in a reasonable manner, in that it has been appropriately allocated between the Applicants and their staff, with the more complex tasks such as the DOCA negotiations being undertaken by the Applicants or Mr Oluk and less complex tasks being undertaken by Mr Neaves or more junior staff. I consider that the hourly charge out rates are within with the range of rates commonly charged in the insolvency industry.
As I have already mentioned, no creditor, shareholder or unit holder appeared at the hearing of the interlocutory application to oppose the orders sought in respect of the Applicants' remuneration. On the contrary, the Company's creditors had already passed resolutions purporting to approve most of that remuneration. Although that is not determinative, it does indicate the creditors consider remuneration in the order of the amount now sought to be reasonable. That is a relevant matter in circumstances where the receipts referred to at [36] above are significantly less than the creditors' admitted claims referred to at [34(10)] above, so that, for practical purposes, the creditors are the only persons with an interest in the amount of the Applicants' remuneration.
Taking into account all of the matters referred to at [31]-[41] above, and having regard to the proportionality of the total remuneration for past and future work referred to at [45]-[46] below, I am satisfied that the amount of $167,557 (excluding GST) claimed in respect of remuneration for work undertaken to date is a fair and reasonable reward for that work and it is appropriate to make orders determining the Applicants' remuneration for that work in that amount.
As a result of that work, the whole of the assets of the Company and the Trust have been realised through completion of the DOCA.
Mr Spring describes the work that the Applicants now expect to undertake as involving drawing the balance of the Applicants' remuneration, [10] paying the first and final dividend from the deed fund to participating creditors under the DOCA and lodging final accounts as receivers and managers of the Trust assets. I accept that this work is necessary, but there was no evidence of the basis of the $12,000 estimate which prima facie appears to be on the high side. Counsel for the Applicants accepted that an order in respect of future remuneration could be made in terms capping the amount approved at $12,000 (excluding GST). I consider that this is an appropriate means of determining the future remuneration now and avoiding the costs of a further court hearing, with the cap operating as a safeguard for the creditors interested in receiving a distribution from the deed fund.
In my opinion, the total past and future remuneration of $179,557 (excluding GST) is proportionate to the nature, extent and complexity of work done over the course of approximately one year and is not disproportionate to the receipts generated by that work, representing approximately 33 per cent of those receipts.
Mr Spring estimates that the return to ordinary creditors [11] will be about 8 cents in the dollar after the Applicants' remuneration, costs and expenses are deducted from the receipts of $535,605.81. This relatively low return to creditors reflects the high value of creditors' claims and the Applicants' legal fees and expenses of $151,171.30 that are also to be paid out of the receipts. It is unsurprising that the Applicants have incurred legal fees in that amount having regard to the necessary application to this Court for the appointment of the Applicants as receivers and managers of the Trust assets and undertaking, the legal advice obtained by the Applicants concerning the DOCA, and the Company's involvement in the litigation concerning Lotus Barangaroo Pty Limited referred to at [34(8)] above.
I accept the Applicants' submission that, because the Company's activities were conducted in its capacity as trustee of the Trust, the proper remuneration of the Applicants in the receivership and in the external administration of the Company are debts incurred by the Company in performing its role as trustee for which the Company is entitled to be indemnified out of the deed fund, which represents the proceeds of the Trust assets. [12]
I accept that the Applicants' previous withdrawal of $153,069.50 from the deed fund for their remuneration was an innocent mistake, and that creditors and ASIC were informed of the mistake. I also accept that the premature withdrawal has occasioned no prejudice to creditors or unit holders in circumstances where the Court has now determined the Applicants' remuneration in a sum greater than the amount withdrawn to date. I am therefore satisfied that it is appropriate to make an order substantially in the terms of prayer 2 of the interlocutory process approving nunc pro tunc the payment of the Applicants' past remuneration in the amount of $167,557 (excluding GST) out of the assets of the Trust. [13]

Discharge and release of receivers

As the Applicants submitted, at general law, a court-appointed receiver may be discharged where the object of the appointment has been achieved. [14]
Mr Spring has given evidence that the Applicants have not engaged in any act or default that is likely to give rise to any liability to any creditor or beneficiary (noting that the drawing of part of their remuneration prior to court approval has not prejudiced any creditor, as referred to above). Nor has any creditor or beneficiary foreshadowed any claim against the Applicants. In those circumstances, I accept the Applicants' submission that it is appropriate that they be discharged once the receivership has been concluded by the proposed distribution of the Trust assets in accordance with the DOCA and the filing of their final account with the Court, subject to allowing a period of time for any presently unknown claims of creditors or beneficiaries to emerge. [15]
I am satisfied that it is appropriate to facilitate that discharge and release by making orders substantially in the form proposed by the Applicants, which will result in the Applicants being discharged and released on the filing of their final account subject to interested persons having liberty to apply to set aside those orders within a period of approximately four weeks after the filing of their final account. That form of order has been employed in several previous cases.

Conclusion and orders

For the foregoing reasons, I make the following orders: 1. Order that the remuneration of the First Plaintiffs: 1. in their capacity as voluntary administrators of Baixin Group Pty Ltd ACN 163 885 612 (the Company) during the period from 20 February 2020 to 2 June 2020; 2. in their capacity as deed administrators under a Deed of Company Arrangement entered into by the Company on 2 June 2020; and 3. in their capacity as receivers and managers of the property, assets and undertaking of the Baixin Investment Unit Trust ABN 93 345 035 462 (the Trust) appointed by orders made by this Court on 28 April 2020, be determined in the following amounts: 1. $167,557 (excluding GST) in respect of the period from 20 February 2020 to the date of these orders (the Past Remuneration); and 2. an amount not exceeding $12,000 (excluding GST) in respect of the period after the date of these orders (the Future Remuneration). 1. Order nunc pro tunc that the Past Remuneration and the costs and expenses incurred by the First Plaintiffs in any of their capacities referred to in order 1 above up to the date of these orders be paid from the assets of the Trust. 2. Order that the Future Remuneration and any costs and expenses incurred by the First Plaintiffs in either of their capacities referred to in order 1(b) and order 1(c) above after the date of these orders be paid from the assets of the Trust. 3. Order that the First Plaintiffs file with the Court their final account as receivers and managers of the property, assets and undertaking of the Trust by a date no later than four weeks after the date of these orders. 4. Order that, upon the filing of the final account in accordance with order 4 above, the First Plaintiffs: 1. be discharged as receivers and managers of the property, assets and undertaking of the Trust; and 2. together with their employees and agents, be released from any liability whatsoever and howsoever arising out of or in connection with their appointment as receivers and managers of the property, assets and undertaking of the Trust. 1. Grant liberty to any person who claims to have an interest in the relief sought in the First Plaintiffs' interlocutory process filed on 12 January 2022 or in the subject matter of orders 1 to 5 above, to apply to the Court to vary or set aside those orders, such application to be made within eight weeks after the date of these orders and on three days' notice to the First Plaintiffs and the Corporations List Judge. 2. Order the First Plaintiffs to provide to: 1. the creditors of the Company; 2. the current shareholders of the Company; 3. the current unit holders of the Trust; and 4. the Australian Securities and Investments Commission, within three business days of the date of these orders and in the manner prescribed by order 8 made on 28 April 2020: 1. a copy of these orders; 2. a copy of the reasons for judgment determining the First Plaintiffs' interlocutory process filed on 12 January 2022; and 3. a letter drawing attention to the discrepancy between the amount of the remuneration claimed in the interlocutory process and the amount of the remuneration in order 1 above.

Endnotes

In the matter of Houben Marine Pty Ltd (in liq) [2018] NSWSC 745 at [15]-[16] (Gleeson JA), cited with approval in Harker-Mortlock v Commonwealth Bank of Australia [2019] NSWCA 56 at [21] (Meagher JA, Macfarlan and Brereton JJA agreeing).
[2018] NSWSC 396 at [6] (footnotes omitted); see also Re Gondon Five Pty Ltd and Cui Family Asset Management Pty Ltd [2019] NSWSC 469 at [34]-[35]; Re J & Lee Property Investment Group Pty Ltd (in liq) [2019] NSWSC 927 at [28]-[32].
Parberry & ors (in their capacity as joint and several administrators of Trio Capital Limited (admins apptd) v ACT Superannuation Management Pty Ltd (2010) 79 ACSR 425; [2010] NSWSC 941 at [20] (Palmer J).
[2014] NSWSC 77 at [9] (Brereton J).
[2012] NSWSC 1426 at [55] (Black J).
[2014] NSWSC 77 at [10]-[17]; see also Re MINMXT Holdings Pty Ltd (in liq) [2017] NSWSC 156 at [14] (Barrett AJA); Jones (liquidator) v Matrix Partners Pty Ltd; Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) (2018) 260 FCR 310; [2018] FCAFC 40 at [105]-[106] (Allsop CJ) and [201] (Farrell J); In the matter of JML Property Services Pty Ltd (in liq) [2018] NSWSC 1069 at [11] (Black J).
[2021] NSWSC 1299 at [52]-[59].
Insolvency Practice Schedule, s 60-10(1)(c).
Re Fearndale Holdings Pty Ltd (in liq) (recs & mgrs apptd) [2020] NSWSC 901 at [38].
The approved amount, less the amount of $153,069.50 already drawn by the Applicants.
There are no priority creditors, other than creditors whose claims have been deferred under the terms of the DOCA.
See [25]-[27] above.
Adopting the approach taken in similar circumstances in In the matter of Double Bay Property Management Pty Ltd (in liq) [2021] NSWSC 996 at [31].
Re Say Enterprises Pty Ltd, supra, at [33] and the authorities there referred to.
Inland Revenue Commissioners v Hoogstraten [1985] 1 QB 1077 at 1094; Re Say Enterprises Pty Ltd, supra, at [34]-[37]; In the matter of Double Bay Property Management Pty Ltd (in liq), supra, at [36]-[41]. 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: 09 February 2022

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (7 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (26)

Cited By (1)