In the matter of Bellafountain Pty Ltd [2017] NSWSC 391

Supreme Court of NSW|2017-04-04|Before: Gleeson JA

Solicitors: Kent Attorneys (Plaintiff) Piper Alderman (Defendants) (Interested Persons) File Number(s): 2017/75130

Judgment

GLEESON JA: Application is made by the plaintiff, Mr Angus Gordon, who is the liquidator of Bellafountain Pty Ltd, for approval under s 477(2B) of the Corporations Act 2001 (Cth) of two retainers.

Background

The company was wound up by order of the Court and Mr Gordon was appointed liquidator of the company on 5 December 2016 on the application of FQ400 Pty Ltd as trustee for The Lordes Trading Trust, trading as "Elite Hygiene Solutions" (Elite). The company did not appear on the hearing of the winding up application. Elite relied upon the presumption of insolvency arising from the failure to comply with a statutory demand dated 15 August 2016 which had been served on the company. The debt to which the statutory demand related was a judgment debt entered by consent in the Local Court on 19 July 2016 for $51,000. Kent Attorneys acted for Elite in both those proceedings.

Legal principles - s 477(2B)

The object of the approval process under s 477(2B) is to ensure that contractual provisions as to timing do not cut across the general expectation that the winding up will proceed in an expeditious fashion as circumstances allow: Re HIH Insurance Ltd [2004] NSWSC 5 at [15] (Barrett J); Re HIH Overseas Holdings Ltd (inprov liq) [2001] NSWSC 426 at [5] (Barrett J).
In deciding whether to grant approval under s 477(2B), the relevant considerations include: 1. the controlling consideration is the interests of creditors concerned in the winding up; 2. the court pays regard to the commercial judgment of the liquidator; 3. although the court is not a rubber stamp for whatever the liquidator puts forward, it is not the role of the court to independently appraise the commercial desirability and commercial terms of the transaction, 4. the court will generally not interfere unless there can be seen to be some lack of good faith, some error in law or principle, or some real and substantial ground for doubting the prudence of the liquidator's proposal. See Re Spedley Securities Ltd (in liq) (1992) 9 ACSR 83 at 85-6; State Bank (NSW) v Turner Corporation Ltd (1994) 14 ACSR 480 at 483; Re HIH Insurance Ltd [2004] NSWSC 5 at [15] and Re G A Listing & Maintenance Pty Ltd (1994) 15 ACSR 308 at 311.

Objection by interested persons

The primary objection advanced by the interested persons is that the retainers are not in the best interests of creditors of the company. It was submitted that Kent Attorneys lacked independence having previously acted for Elite, a creditor of the company in the Local Court proceedings and the plaintiff in the winding up proceedings.
In oral argument, counsel for the interested persons disavowed any suggestion that the liquidator lacked independence. Nonetheless, the interested persons asserted that a fair minded and disinterested lay observer might reasonably apprehend that the liquidator might fail to act, impartially and independently if he retained Kent Attorneys for either the s 459G proceedings or the public examinations.

The circumstances of the proposed retainers in more detail

The liquidator's first affidavit of 9 March 2017 explained his need for legal assistance and how he came to the decision to retain the services of Kent Attorneys in the s 459G proceedings and the proposed public examinations.
The liquidator said that he considered the commercial terms proposed by the lawyers to be acceptable and in line with the market rate for the provision of legal services in like matters. The hourly rates to be charged are, in the liquidator's experience, towards the lower end of that scale. The lawyers have agreed to provide their services notwithstanding there are presently no funds from which they might be paid. The liquidator pointed to the advantage of securing agreement from the lawyers to act for the company, particularly where the liquidator found himself, at an early stage of the administration, in contested litigation. The liquidator expressed his confidence in the expertise of the lawyers based on their experience. The liquidator also explained his decision to retain Kent Attorneys, notwithstanding that they have acted for the creditor in the Local Court proceedings and in the subsequent winding up proceedings.
There is nothing exceptional about the terms of the proposed retainers either in the context of the s 459G proceedings or the proposed public examinations.
In his second affidavit of 22 March 2017, the liquidator expanded upon the circumstances in which he had initially retained Kent Attorneys for other aspects of the liquidation and why he considered the retainer of those lawyers was in the best interests of creditors with respect to the s 459G proceedings and the public examinations.
The liquidator first sought assistance from Mr Kent of Kent Attorneys in connection with a meeting held on 12 December 2016 with Mr Mi, and his then lawyers, Swaab Lawyers to discuss the possible termination of the winding up. The liquidator said that he considered that Mr Kent had the relevant expertise and also had considerable knowledge of the company and corporate group through his own enquiries, having acted for Elite in the earlier proceedings against the company.
The liquidator explained that he did not "shop around" for another lawyer at that time because, in his view, it would not have been an efficient use of company resources; the only assets recovered in the liquidation being approximately $5,500 in the company's bank account. In addition, the liquidator considered that there was limited time prior to Christmas to find and brief another lawyer and there would have been some cost in briefing another lawyer to reach an understanding of the company that Mr Kent already had. Having regard to what seemed to the liquidator to be very few third party creditors, the liquidator said that he did not consider that the general desirability of the appearance of independence weighed sufficiently against his engagement of Mr Kent to at least attend the meeting on 12 December 2016.
At that 12 December meeting, the liquidator enquired whether there was any objection to Mr Kent being retained by him. There was no challenge to the liquidator's evidence, which I accept, that no objection was raised by the director, Mr Mi.
Ultimately, the directors of the company did not proceed with steps to terminate the winding up.
Having identified a debt of $417,491 owing by CFP as the only substantial asset of the company, the liquidator sought advice from Kent Attorneys during the week commencing 9 January 2017 in relation to the recovery of this debt. A statutory demand was served by the company on CFP around 17 January 2017. Subsequently on 8 February 2017, CFP commenced proceedings against the company seeking to set aside the statutory demand on the ground that there was a genuine dispute about the existence or the amount of the debt the subject of the statutory demand.
The liquidator said that he did not "shop around" to find another lawyer for the recovery claim against CFP as he considered utilising Kent Attorneys was the most cost-effective way of securing the advice and taking further action to recover the debt owing to the company. The liquidator also said that, having regard to the very limited extent of the creditors of the company and the fact that no objection had been previously raised by the directors of the company to his engagement of Kent Attorneys, he considered it appropriate to continue to engage those lawyers.
It was only after the statutory demand was served on CFP, that the directors of the company, through new lawyers, Piper Alderman, objected on 18 January 2017 to the liquidator continuing to engage Kent Attorneys.
Following that objection the liquidator reconsidered whether it was appropriate that he continue to engage Kent Attorneys. The liquidator said that he took into account the following matters in considering whether it was in the best interests of the creditors of the company that he continue to engage Kent Attorneys and whether it was otherwise appropriate that he continue to do so: 1. The liquidator is presently unfunded; 2. Kent Attorneys are a firm experienced in insolvency who are willing to be retained on terms that they will be paid out of recoveries; 3. there would be a cost to the liquidator in meeting prospective lawyers for the purpose of providing them with the background of the case, and seeking to persuade them to accept a retainer on the basis that the lawyers' fees will be paid if recoveries are made; 4. there will be an additional cost of the new lawyers having to acquire a knowledge base of the same level of Kent Attorneys so as to assist in relation to the statutory demand proceedings and the proposed public examinations; 5. the additional costs referred to in (c) and (d) above would, in the liquidator's view, be disproportionate to the amount of fees that will be incurred; 6. the most significant creditors, being the related-party creditors, controlled by the directors of the company, had not previously raised an objection to the liquidator engaging Kent Attorneys.
The liquidator expressed the view that it is in the best interests of creditors to continue to engage Kent Attorneys in relation to the s 459G proceedings because it "will keep costs down".
In cross-examination, the liquidator did not agree with the suggestion that he only considered the interest of third party creditors when determining the general desirability of the appearance of independence in deciding to retain Kent Attorneys (T15, lines 26-30). The liquidator also said that the decision to conduct public examinations was his alone (T17, line 30). I accept that evidence.
The liquidator said that he had made recent enquiries as to whether other lawyers would be prepared to conduct the public examinations (T18, line 19). He had done so in the event that his application for approval of the retainer of Kent Attorneys was not approved. He had approached Bellios & Associates, who he understood were specialist advocates in the criminal jurisdiction (T18, lines 36-47). He said that in principle he was comfortable with the terms upon which that firm had indicated it was prepared to act, subject to "fine tuning" the terms (T19, lines 22-24).
As to the question of whether the additional costs of retaining other lawyers would be disproportionate, the liquidator referred to his past experiences where there had been a need to change lawyers, and said that other costs are necessarily incurred in bringing someone else "up to speed" (T19, lines 45-48). The liquidator disagreed with the cross-examiner's proposition that the costs of briefing other lawyers would not be disproportionate in relation to public examinations. He referred to two matters: the need for other lawyers to undertake more background work than Kent Attorneys; and, the charge-out rates and time that would be taken for them to read into the matter, as opposed to Kent Attorneys (T20, lines 2-5). I also accept that evidence.

Submissions

Mr Stack for the interested persons accepted that there is no "absolute rule" that a liquidator cannot retain a solicitor who acts for a creditor and that each case will turn on its own circumstances. Nonetheless, Mr Stack submitted that the "starting position" is that a liquidator should not engage lawyers who act for a "substantial" creditor. A substantial creditor was said to be a creditor with an interest of significance in the winding up.
The interested parties further submitted that the "starting position" was strengthened in the present case by certain conduct of the liquidator and Kent Attorneys. Reference was made to assertions in letters from Piper Alderman to Kent Attorneys dated 18 January 2017 and 2 March 2017 respectively. In the earlier letter, Piper Alderman stated that the interested persons believed that "significant animosity" had developed between them and Elite and that this animosity emanated, in part, from Kent Attorneys; that the liquidator had been "extremely aggressive" in his dealings with the directors of the company; and that the liquidator was not seen by the directors as being independent from Elite. The second letter repeated those assertions. Complaint was also made that the liquidator had not initially given notice of this application to the interested parties, because of legal advice given by Kent Attorneys that it was not necessary.
Notwithstanding the complaints directed against the liquidator in Piper Alderman's letters, as already indicated, counsel for the interested persons did not submit that the liquidator lacked independence.
Mr Golledge, counsel for the liquidator, submitted that the authorities do not support the "starting position" described by the interested persons. Next he submitted that even if there was a prima facie position to that effect, it did not apply here because Elite was not a "substantial" creditor. Finally he submitted that in any event, the authorities establish that there is no "absolute" rule that a liquidator cannot retain the solicitors for a substantial creditor, as each case is to be determined on its own facts in light of what he referred to as the "independence" principle, referring to Re Biposo Pty Ltd; ex parte Condon v Rogers (1995) 120 FLR 404.

The test for independence

It is well-established that the liquidator must, in the performance of his or her duties, not only be independent, but also be seen to be independent: Australian Property Holdings Custodian Limited v Capital Finance Australia Ltd and Ors [2012] VSC 124 at [113] (Ferguson J) referring to Re National Safety Council of Australia, Victorian Division [1990] VR 29 at 34 (court appointed liquidator); Advance Housing Pty Ltd (in liq) v Newcastle Classic Developments Pty Ltd (1994) 14 ACSR 230 (voluntary liquidator).
Black J stated the well-known test for independence in Re Anglican Development Fund Diocese of Bathurst Board (recs and mgrs apptd) [2015] NSWSC 6 at [47] as follows: …..the test for independence is whether a fair-minded lay observer might reasonably apprehend that receivers might not bring an impartial mind to the resolution of a relevant question and that test is concerned with the real possibility of a lack of independence: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]; Australian Securities and Investments Commission v Franklin [2014] FCAFC 85; (2014) 101 ACSR 87 at [59], [77].
Both counsel correctly accepted that there is no absolute or universal rule that prevents a liquidator from retaining solicitors who also acted for a creditor. Statements in the authorities as to the undesirability of a liquidator (or administrator) engaging the solicitor for a creditor of the company need to be read in context.
Thus where an administrator or liquidator retains the lawyers for a secured creditor, the conclusion that it might be perceived by a reasonable observer that the liquidator has manifested a tendency to favour certain interests at the expense of others can be readily drawn. This is because secured creditors' interests in an administration or liquidation are most likely to be divergent to the interests of the unsecured creditors. Accordingly it is not surprising that Byrne J in Re Smarter Way (2000) 35 ACSR 595 and Finkelstein J in Commonwealth Bank of Australia v Fernandez (2011) ACSR 262 each expressed the view that it is undesirable that an administrator or liquidator retain the solicitors for a secured creditor. That circumstance can be readily seen as one which might give rise to a reasonable apprehension that the liquidator or administrator might not bring an impartial mind to the matters in the administration upon which legal advice is sought and given by the solicitors who are also solicitors for a secured creditor. In Fernandez, Finkelstein J took the further step of saying that where the secured creditor is a large bank or other entity with a panel of solicitors, it would be undesirable for the liquidator to retain any of those solicitors on the panel.
There are also statements in the authorities that it is 'generally undesirable' for the liquidator to retain the same solicitors as a substantial creditor, however that is not 'an absolute rule': Re Kala Capital Pty Ltd (in liq) [2012] NSWSC 1073 at [29]. In that case Black J accepted the practical utility of the liquidator retaining the same solicitors (Carroll & O'Dea) who had acted for the company and the sole shareholder (who was also a creditor) in Equity Division proceedings against the company's sole director and secretary, in proposed public examinations. There the liquidator had obtained advice from an independent solicitor as to the proposed examinees and whether he should conduct the examinations or whether they should be conducted by Carroll & O'Dea and counsel retained by that firm. The independent solicitor had expressed the view, among others, that the liquidator would be best served by taking advantage of Carroll & O'Dea's and counsel's knowledge of the documents, arising from their retainer in the Equity proceedings. Black J rejected the allegation by the proposed examinee of apprehended bias against the liquidator. His Honour added at [29] a note of caution that the Court expected the liquidator, as its officer, "to maintain continued alertness with [the assistance of the independent solicitor] to whether this position needs to change".
More recently in Re ACN 151 726 224 Pty Ltd (in liq) previously Ridley Capital Holdings Pty Ltd [2016] NSWSC 1801 at [51], Black J summarised the position as follows: … I accept, that the courts have regularly cautioned against an insolvency practitioner engaging the solicitors who act for a substantial creditor, although there is no absolute rule preventing that course. Those cautions have been put in strong terms. In Smarter Way (Aust) Pty Ltd v D'Aloia [2000] VSC 408; (2000) 35 ACSR 595 at [26], Byrne J observed that an administrator's engagement of the solicitors retained by the appointing chargee "is, in general, undesirable", where creditors are entitled to an administrator's independent opinion. In Commonwealth Bank of Australia v Fernandez [2010] FCA 487; (2010) 81 ACSR 262 at [89], Finkelstein J observed that: "In Smarter Way (Aust) Pty Ltd v D'Aloia (as admin of) Smarter Way (Aust) Pty Ltd [above] Byrne J spoke about the undesirability of an administrator engaging solicitors who act for a secured creditor: at [26]. He said that such a course was undesirable. I would go one step further than did Byrne J. Not only should an administrator not appoint solicitors retained by the secured creditor, they should not appoint solicitors who are on the secured creditor's panel of solicitors. I think that solicitors on a secured creditor's panel are just as likely to be perceived as loyal to the secured creditor as is the solicitor who happens to be retained by the secured creditor."
In Ridley Capital, Black J added the following observations at [53] - [54]: In Re Colorado Products Pty Ltd (in prov liq) [2013] NSWSC 1613 at [14], I similarly observed that: "… liquidators and provisional liquidators to remain conscious of the reservations expressed by Byrne J in Re Smarter Way (Aust) Pty Ltd; Smarter Way (Aust) Pty Ltd v D'Aloia (as admin of Smarter Way (Aust) Pty Ltd) [above] at [26] as to the retainer by an insolvency practitioner of solicitors who act for a secured creditor. On the other hand, I accept that in some circumstances it may be appropriate for a liquidator or provisional liquidator to retain solicitors who have previously been engaged by a secured creditor to act for a company in liquidation in proceedings, although considerable care needs to be taken in that regard and the liquidator will need to remain alert both to his obligations as an officer of the Court and to the possible need for independent advice: Re Mustang Marine Australia Services Pty Ltd [2012] NSWSC 620." In IND Energy Inc (a company incorporated in the British Virgin Islands) v Langdon & Rocke [2014] WASC 364 at [138], EM Heenan J similarly noted that, although there is no absolute bar preventing an administrator from seeking and obtaining legal advice from a solicitor who acts for a party interested in the company to which the administrator is appointed, "both Smarter Way and Commonwealth Bank of Australia v Fernandez incline strongly towards the unsuitability of such a practice."
In Re Laurie Cottier Productions Pty Ltd (in liq) (1992) 9 ACSR 513, Waddell CJ in Eq considered the question of the same solicitor representing a creditor and the liquidator in the context of public examinations by the liquidator. There a director of a company sought to have an examination order obtained by the liquidator set aside. It was contended that the examination order was an abuse of process, being for an impermissible ulterior purpose, namely, to advance the interests of only one of the company's creditors who was funding the liquidator's examination. The solicitors for the creditor, who was the plaintiff in the winding up proceedings, were also the liquidator's solicitors in the examination proceedings. Waddell CJ in Eq rejected the director's application to set aside the examination order. His Honour dealt with a submission concerning the fact that both the creditor and the liquidator were represented by the same solicitor (at 518) as follows: It is submitted for Mr Blondin that an inference that the liquidator is acting only in the interests of Macquarie Print is supported by the fact that both are represented by the same solicitor. It is said that there is necessarily a conflict of interest so far as that solicitor is concerned because matters might arise where they would owe a different duty to each of their clients. No example has been proposed. It is not unusual for the petitioning creditor's solicitor later to act for a liquidator. This is, in general, not desirable because a liquidator should be seen to be independent and to represent only the body of creditors. However, sometimes it may be unavoidable and there may be no conflict of interest. Each case must depend on its own circumstances. In the present case there are, I think, no consequences which are adverse to the liquidator.
The guiding principle is that whether such an arrangement offends the requirement for independence of the liquidator will depend upon the circumstances: Re Colorado Products Pty Limited (in prov liq) [2013] NSWSC 1613 at [14] (Black J); Re Mustang Marine Australia Services Pty Limited [2012] NSWSC 620 at [7] (Black J).
Although Elite's claim against the company represents only about 9 percent of the total creditor claims, and on one view Elite is not a substantial creditor, I am prepared to assume that Elite may be characterised as a substantial creditor of the company. Accepting that it is generally undesirable for the liquidator to retain the solicitor for a substantial creditor, I do not find the submission by the interested parties referring to the "starting position" to be particularly helpful. Each case must be determined on its own facts and, as the interested parties correctly accepted, there is no absolute rule.
The assertions made in the Piper Alderman correspondence can be put aside. First, in the absence of evidence of any particular conduct of Kent Attorneys, the subject of complaint, very little weight, if any, can be given to the high level assertions on behalf of the interested persons of lack of independence by those solicitors.
Second, as already noted, the interested persons did not press any complaint of lack of independence against the liquidator himself.
Third, insofar as complaint is made about advice given by Kent Attorneys to the liquidator concerning the giving notice of these proceedings to the interested parties, it would have been preferable if notice had been given earlier than it was, but the advice apparently given (that notice was not required) has not been shown to be wrong, and even if wrong, it was not put to Mr Orlizki in cross examination that such advice was given for any improper purpose, such as to deny the interested persons an opportunity to be heard on the application.
Fourth, that the interested parties as the largest group of creditors have objected to the liquidator retaining the solicitors who acted for Elite is not determinative of whether there is a reasonable apprehension of bias. The related-party creditors are not disinterested persons; they are controlled by the same directors as the directors of the company and CFP. It may be inferred from Piper Alderman's correspondence that the interested persons have aligned themselves with the interests of the directors of the company, who themselves are not disinterested. The directors are the proposed examinees under s 597. They are also the directors of CFP, which now disputes the debt owing by CFP as recorded in the RATA, notwithstanding that they had certified the information in the RATA as correct.

Retainer for s 459G proceedings

The liquidator is satisfied as to the terms and rates to be charged by Kent Attorneys, who will not receive payment unless the company is ultimately successful in recovering the alleged debt owed by CFP. The interested parties did not suggest, and there is no reason to doubt the liquidator's assessment of those matters.
That Kent Attorneys previously acted for Elite in the Local Court proceedings and in the winding up proceedings, and it may be inferred, continue to act for Elite, does not, in the circumstances of the present case, give rise to a reasonable apprehension of a real possibility of a lack of independence by those solicitors. Nor would that retainer cause a fair-minded and disinterested lay observer to reasonably apprehend that the liquidator might not bring an impartial mind to the defence of the s 459G proceedings and any further proceedings to recover the alleged debt owing by CFP.
First, the retainer relates to the recovery of an alleged asset of the company. The alleged debtor, CFP, initially sought leave to appear on the hearing but ultimately did not press that application. CFP is not an interested person. Indeed, it has no particular interest in the question of the retainer of Kent Attorneys.
Second, it can be accepted that there will be practical advantages and cost savings for the liquidator if Kent Attorneys continue to act in that matter since the s 459G proceedings have reached the stage of allocation of a hearing date.
Third, as Black J observed in Re Mustang Marine Australia Services Pty Ltd [2012] NSWSC 620 at [7], the liquidator is an officer of the court and it can be assumed that he will be alert to his responsibilities in respect to maintaining the integrity of his role. Should any issue arise where there is a possible conflict between the duties owed by Kent Attorneys to the liquidator and the company on the one hand, and to Elite on the other, it is open to the liquidator to obtain independent advice and it can be expected that the liquidator as an officer of the court would take that step.
It should be observed that the interested persons did not submit that Kent Attorneys faced a possible conflict between its respective duties to two clients. Rather, the interested parties emphasised the possibility of a conflict of interest and duty. They submitted that the interest of Kent Attorneys in receiving fees under the proposed retainer conflicted with their duty to provide impartial advice to the liquidator. I reject that submission. It is not supported by the evidence. Such a proposition was never put to Mr Orlizki in cross-examination. Further, that a solicitor acting for a liquidator has an interest in being remunerated does of itself give rise to a real possibility of a conflict between interests of the solicitor and the duty owed to the client.
Fourth, it is in the interests of all creditors of the company, including the related-party creditors, that the liquidator recovers the only substantial asset recorded in the RATA. The liquidation is a relatively small liquidation. The creditors effectively fall into two groups: the related party creditors and the third part creditors of whom Elite is the largest and most significant. The related-party creditors have not offered to fund the liquidator to retain other solicitors to recover the alleged debt. In circumstances where the liquidator is unfunded, the s 459G proceedings are substantially advanced and Kent Attorneys are prepared to act on the basis that they will receive payment of their fees only out of eventual recoveries, I accept that it is in the best interests of all the creditors that the liquidator retain Kent Attorneys to recover that alleged debt. I do not consider that the retainer of those solicitors might give rise to a reasonable apprehension of bias against the liquidator.

Retainer for public examinations

It is important to recall that public examinations are essentially an information-gathering process available to the liquidator. It was not suggested that the proposed examinations involved any abuse of process. Indeed, counsel for the interested parties disclaimed making any submissions on the question of whether examination orders should be issued.
Again, the liquidator has expressed his satisfaction as to the terms and rates to be charged by Kent Attorneys, and the circumstances in which those solicitors will be entitled to receive payment. Among other things, there are cost savings in retaining those solicitors as it is proposed that Mr Orlizki will conduct the examinations rather than briefing counsel. The liquidator is satisfied that Mr Orlizki has the experience to carry out that function. There is no reason to doubt the liquidator's assessment of those matters.
Again, it is in the interests of all creditors, including the related-party creditors, that the liquidator investigate the reasons for the collapse of the company and determine if there are any causes of action available to the company or the liquidator to recover money or property for the benefit of the company and its creditors.
Again, the interested parties focused on the alleged conflict of interest and duty confronting Kent Attorneys which, it was submitted, made it inappropriate that the liquidator retain those solicitors. For the reasons already given, Kent Attorneys' entitlement to payment of their fees (in this case, only out of any eventual recoveries by the company), does not give rise to a possible conflict of interest and duty. Nor do I accept that the retainer of those solicitors might give rise to a reasonable apprehension of bias against the liquidator.
That another firm of solicitors is available to conduct the examinations is not, in my view, determinative in the present case. The liquidator has expressed his preference for and confidence in retaining Kent Attorneys for the public examinations. The advantages in retaining those solicitors in terms of efficiency (based on their existing knowledge of the company and its affairs, including the TOS Group) and likely costs savings have been referred to above. That firm's experience in conducting public examinations is not in dispute. On the other hand, the evidence does not permit me to be satisfied that the other solicitors contacted by the liquidator have the requisite expertise to conduct the public examinations. The liquidator's commercial judgment as to the retainer being in the best interests of the company ought to be respected.

Orders

Accordingly, I make the following orders and directions: 1. Order, pursuant to s 477(2B) of the Corporations Act 2001 (Cth) approving the plaintiff as liquidator of Bellafountain Pty Ltd (in liq) entering into the agreements referred to in the schedule on behalf of the company, notwithstanding that terms of the agreement may end and/or obligations of parties to the agreement may, according to the terms of the agreement, be discharged more than three months after the agreement is entered into. 2. Order that the liquidator's costs and expenses of this application be costs and expenses in the liquidation. 3. Direct these orders be entered forthwith. Schedule 1. An agreement in or substantially to the effect of the costs agreement between the plaintiff and Kent Attorneys as set out in annexure "Q" to the affidavit of Angus Carnegie Gordon sworn 9 March 2017. 2. An agreement in or substantially to the effect of the costs agreement between the plaintiff and Kent Attorneys as set out in annexure "R" to the affidavit of Angus Carnegie Gordon sworn 9 March 2017.

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: 11 April 2017

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Legislation Cited (1)

Cases Cited (15)

Cited By (6)