In the matter of Gondon Five Pty Limited and Cui Family Asset Management Pty Limited [2019] NSWSC 469

Catchwords

[2003] NSWSC 130 Australian Securities and Investments Commission v Commercial Nominees of Australia Ltd (as trustee for Confidens Investment Trust) (2002) 42 ACSR 240[2002] NSWSC 576 Australian Securities and Investments Commission v Lawrenson Light Metal Die Casting Pty Ltd (1999) 158 FLR 307(1999) 33 ACSR 288[2004] NSWSC 751 Idylic Solutions Pty Ltd (as trustee for Super Save Superannuation Fund), In the matter of (2016) 115 ACSR 581[2016] NSWSC 1292 Interior Marble Pty Ltd v Mondo Stone Pty Ltd [2004] NSWSC 918 Ireland v Eade (1844) 7 Beav 5549 ER 983 Korda, Rein the matter of Stockford Ltd (2004) 140 FCR 424[2004] FCA 1682 Kraft v Kupferwasser (1991) 23 NSWLR 236 Manchester & Milford Railway Co, ReEx parte Cambrian Railway Co (1880)14 Ch D 645 Mariconte v Batiste (2000) 48 NSWLR 724[2000] NSWSC 288 Marshall v South Staffordshire Tramways Co [1895] 2 Ch 36 Merchant Nurseries Pty Ltd, Re[1941] HCA 3 Newdigate Colliery Ltd, Re [1912] 1 Ch 468 Parker v Dunn (1845) 8 Beav 49750 ER 195 Price v Price (1904) 29 VLR 719 Rondahl, ReHenderson v Executor Trustee Australia Ltd (2005) 93 SASR 337(2005) 226 ALR 475

Judgment (53 paragraphs)

[1]

Background

The Cui Family Trust was a discretionary family trust of which each of Tracy and her brother, Jinsong Cui, were beneficiaries; Jinsong was also the appointor, and the sole shareholder in CFAM, which was the trustee. In its trustee capacity, CFAM was the sole shareholder in Gondon, which was undertaking a property development in North Ryde. CFAM was also the sole shareholder in Australian Blue Mountains Group Pty Limited ("ABMG"), which operated a spring water business under its trade name Blue Mountains Natural Spring Water; Tracy was the sole director of ABMG. Arise Constructions Pty Limited was a building company, owned and controlled by Jinsong, which was retained by Gondon to construct the North Ryde development.1

[2]

The freezing orders

By late 2016, the North Ryde development was nearing completion, and sales of the units in it were underway; many had been sold, and many of the sales had been completed. Tracy as plaintiff commenced the substantive proceedings against CFAM, Gondon and Jinsong as defendants, and on 13 September 2016, obtained freezing orders against CFAM and Gondon, in the following terms: [1] (1) Until further order the second defendant Gondon Five be restrained from by itself, its servants and agents, alienating, encumbering or otherwise adversely dealing with the units at 1-9 Allengrove Crescent, North Ryde or the proceeds of their sale, otherwise than in selling and/or completing the sale of the units, paying proper adjustments on completion of any sale, paying legal expenses agents' commission and selling costs in respect of any such sale, paying to the relevant taxation authority any taxation liability properly payable, repaying to any lender the outstanding amount of its loan (where such repayment is made with the prior written agreement of the plaintiff), repaying to the first defendant CFAM the amount outstanding in respect of its loan, and remitting the balance to CFAM by way of dividend or return of capital. (2) Until further order the first defendant CFAM be restrained from by itself, its servants and agents, alienating, encumbering or otherwise adversely dealing with any amount received by it henceforth from Gondon Five, whether by way of loan repayment, dividend or return of capital, up to the total of $2,704,005 plus one-third of the amount so received ("the preserved sum"), provided that it is not a contravention of this order for CFAM to make repayments and/or distributions to the plaintiff, including from the proceeds of sale of any of the reserved units referred to in the letter agreement dated 5 September and executed 16 October 2015, and in the event that any such repayment or distribution is made to her, the preserved sum shall be reduced by the amount so paid or distributed to her.
Those orders were made for reasons which were summarised as follows: [2] 43 To summarise, it seems to me that Tracy has an arguable case to recover from CFAM her loan of $2.407 million. She has an arguable case for removal and replacement of CFAM as trustee, founded on apparent lack of impartiality. She has no arguable case - at least as presently formulated - against the third defendant Jinsong personally, and there is no evidence that trust assets can be traced into his hands, or that he is otherwise liable to her, and there is no basis for any injunction against him personally. 44 Although it is not the strongest case of risk of dissipation, there is a reasonable basis for apprehension that assets of the trust, including in particular its entitlements against Gondon, may not be preserved or pursued. There is no hardship in requiring Gondon Five not to adversely deal with its relevant assets; all that it will be required to do is to comply with what are in any event are its legal obligations.
In respect of the risk of dissipation, the following observations were made: [3] 40 Two things, however, are of some troubling nature. The first is that to which I have already referred: the wanton conduct of the defendants in inflicting economic damage on Tracy and/or on trust assets through their interference with the ABMG business and its contracts. The second is that there is evidence of substantial ongoing expenditure from the Gondon Five business account. The personal expenditure for the defence of an apprehended violence order is of itself de minimis, and expenditure of a proprietary company's funds on personal matters is not unusual in the context of private companies, and it may well be accounted for on loan account. But unexplained ongoing expenditure of large round sums from that account, at a time when the project is in the phase of selling assets, occasions some concern that Gondon Five's assets are in some jeopardy.

[3]

Appointment of receiver

The Receiver was appointed on the plaintiff's ex parte application on Friday 2 December 2016, essentially because it appeared that the freezing orders had been ineffective to prevent adverse dealings with the Companies' assets. He was appointed, without security, initially only until Monday 5 December 2016 (which was the next business day), and expressly with the powers referred to in (CTH) Corporations Act 2001, s 420, but subject to the proviso that no distribution was to be made of any assets without the leave of the Court. The order of the Court was in the following terms: Upon the plaintiff by her counsel giving to the court the usual undertaking as to damages THE COURT ORDERS THAT until and including 5 December 2016 Domenic Calabretta be appointed without security as receiver and manager of Cui Family Asset Management Pty Limited as trustee for the Cui Family Trust ACN 159 692 752 and Domenic Calabretta be appointed without security as receiver and manager of Gondon Five Pty Limited ACN 156 206 692, in each case with the powers set out in s 420 of the Corporations Act 2001 provided that no distribution is to be made of any assets without the leave of the court.
The application returned before the Court on 5 December 2016, when the appointment was continued until 21 December 2016 and directions made with a view to an interlocutory hearing on that day to determine whether the appointment would continue thereafter: 1. The appointment of Domenic Calabretta as receiver and manager of Cui Family Asset Management Pty Ltd as trustee for the Cui Family Trust and of Gondon Five Pty Ltd under the order of 2 December 2016 continue until and including 21 December 2016. 2. The receivership referred to in order 1 does not affect the powers of the directors of Cui Family Asset Management Pty Ltd or Gondon Five Pty Ltd to commence, continue or defend legal proceedings, including in particular these proceedings, proceedings 2016/306081 (the Weng proceedings) and proceedings 2016/302763 (the Wang proceedings). 3. By 9 December 2016 the defendants serve: (a) any affidavit evidence to be relied upon by them in opposition to the further continuation of order 1 and otherwise in relation to the notice of motion of the plaintiff filed 2 November 2016; (b) an affidavit identifying the sale price of all apartments at the property 1-9 Allengrove Crescent, North Ryde sold, and the date of completion of such sales, whether such completion has already occurred or is yet to occur, and those apartments at the property that have not yet been sold. 4. By 15 December 2016, the plaintiff serve any further affidavits to be relied on in support of the continuation of order 1 and otherwise in relation to her notice of motion filed 2 December 2016. 5. The hearing of the notice of motion filed 2 December 2016 be fixed for hearing before me on 21 December 2016 at 10am. 6. Liberty to apply on 24 hours' notice, any such notice to specify the issues to be raised and the relief to be sought. 7. Plaintiff's submissions to be lodged with my associate and served by 16 December and defendant's by 20 December. 8. The notices to produce served by the plaintiff on CFAM and on Gondon Five be adjourned to the Registrar's List on Thursday, 8 December 2016 at 9am.

[4]

Re-listing on 15 December 2016

The Companies became concerned at the extent of the work which the Receiver, his staff and solicitors appeared to be undertaking, and challenged his approach - and in particular his stated intention to prepare a "report" for the Court - pointing out that the appointment was an interim one, that the Court had not directed preparation of any such report, and that preparation of a report would incur significant costs. At the Receiver's request, the proceedings were re-listed on 15 December 2016, when the Receiver sought clarification of the purpose and scope of his appointment, and the Court confirmed that the purpose of the appointment was to take custody of and secure the assets of the companies and prevent further dealings with them: Well, in a nutshell I think the purpose was to take custody of and secure the assets and undertaking of the corporations in question and prevent there being any further dealing with them until the interlocutory hearing.
In response to a query from Senior Counsel for the Receiver concerning the need for a formal report, I said: I think the short answer to that Ms Collins is on the one hand I have got no doubt we would be assisted by it but it wasn't part of the relief sought when the receiver was appointed. I didn't include it in the directions and I think if someone wants a report they can seek that next Wednesday rather than pursuing it at this stage. I don't think it was expressly envisaged by the directions previously made so probably the safest course is not to go down that route just yet.
The Court also directed that the Receiver would be justified in completing any property sales entered into by either company in respect of which contracts had been exchanged prior to the appointment date. In addition, variations were made to the timetable in connection with the interlocutory hearing appointed for 21 December. The formal orders of the Court were: 1. The date for service of the defendant's evidence in opposition to the further continuation of the appointment of the receiver and otherwise in relation to the Notice of Motion of the plaintiff filed 2 December 2016 is extended nunc pro tunc to 14 December 2016. 2. The date for service of the plaintiff's further evidence in relation to the Notice of Motion is extended to 19 December 2016. 3. Parties are to serve and lodge with my Associate outlines of submissions by 20 December 2016. 4. Order 7 of the orders of 5 December 2016 is vacated. 5. The plaintiff have leave to issue and serve not later than 15 December 2016 subpoenas addressed to the following subpoena recipients, such subpoenas to be returnable on 20 December 2016 at 9.00am before the Registrar: (a) Juris Cor Legal; (b) Arise Construction Pty Ltd; (c) Bank of China Limited; (d) National Australia Bank Limited; (e) Westpac Banking Corporation and time for service of such subpoenas is abridged to today. 6. The plaintiff have leave to serve a Notice to Produce on the second defendant returnable on 20 December 2016 at 9.00am, such Notice to Produce to be served not later than today. The receivers may have leave to file in Court the affidavit of Thomas Russell of 14 December 2016. THE COURT FURTHER DIRECTS THAT the receiver would be justified in carrying to completion any contracts for sale of units which have presently been exchanged.

[5]

Discharge of the Receiver

On 21 December, after the hearing of the interlocutory application commenced, it was stood down while the parties negotiated. Late in the day, the Court was informed that the substantive proceedings had been settled, and with them the interlocutory application had also been resolved. The proceedings were adjourned to 23 December 2016, for short minutes.
On 23 December 2016, orders were made, by consent, that the Receiver be discharged. He was authorised to retain until further order the sum of $150,000, and also to maintain caveats on two units in the North Ryde development on account of and as security for his remuneration, costs and liability for tax. Subsequently, by agreement, those caveats were withdrawn on 7 February 2017, and instead the Companies' solicitors Marsdens undertook to hold $100,000 in trust pending the determination of the Receiver's remuneration.
On 16 February 2017, the solicitors for the Receiver sought approval from the solicitors for the plaintiff and the Companies for their remuneration and expenses in the total amount of $181,183.26 (GST inclusive). The plaintiff agreed to the Receiver's remuneration claim, but the Companies did not.

[6]

The remuneration application

The Receiver's remuneration application was first listed for hearing before me on 6 June 2017, pursuant to directions made on 10 March 2017 for filing and service of an interlocutory process, affidavit evidence and outlines of submissions, by the Receiver by 7 April 2017, and by any objecting party by 12 May 2017.
In support of his application, the Receiver belatedly served an affidavit of Domenic Calabretta sworn 2 May 2017 ("first affidavit"), and lodged written submissions dated 11 May 2017. The Receiver's first affidavit summarised the work performed by the Receiver and his staff under ten headings, or "issues", across which he approximately allocated his total remuneration claim of $99,005.42, of which $77,603.42 relates to the Gondon receivership, and $21,377 to the CFAM receivership. This description and allocation by the Receiver provides a useful overview of the work in respect of which remuneration is claimed, and is summarised in the following paragraphs. The amounts referred to are exclusive of GST.
1 - Books and records. The Receiver took steps to obtain possession of the books and records of both companies. For this he claimed remuneration of $9,000 to $11,000, which was later refined to $8,813 for Gondon and $1,841 for CFAM.
2 - Status of sales. The Receiver sought and obtained information concerning the status of sales of the units in Gondon's North Ryde development, and endeavoured to reconcile what he considered to be discrepancies in the information obtained. For this he claimed remuneration of $11,000 to $13,000, which was later refined to $11,632 for Gondon and $385 for CFAM.
3 - Caveats. The Receiver conducted searches of real property owned by Gondon and instructed his solicitors to lodge caveats over the 61 units in Gondon's name. His solicitors lodged a single caveat covering the 44 titles which remained in Gondon's name (the sale of the others having been completed) - in which the interest claimed was a charge for the Receiver's remuneration and expenses - and subsequently engaged in correspondence with the Companies' solicitors Marsdens about the validity of the caveat. For this he claimed remuneration of $2,000 to $3,000, later refined to $2,640 for Gondon.
4 - ABMG. The Receiver was notified by the plaintiff's solicitors that Jinsong and one Rong Chen had attempted to effect a "lockout" of ABMG's business premises, interfering with the operation of ABMG's business, and instructed Piper Alderman to correspond with Marsdens in relation to this. For this he claimed remuneration of $2,000 to $2,500, later refined to $2,398 for CFAM.

[7]

The initial hearing

The respondents' submissions of 2 June 2017 raised three main issues: the first was that the Receiver had failed to adduce sufficient evidence to establish that his remuneration and expenses were fair and reasonable; [4] the second was that much of the work performed was outside of the scope of the appointment and ought not to be allowed; and the third was that the Receiver had conducted himself in a manner inconsistent with his duty of impartiality. The respondents proposed that, consistent with the course that had been taken by Black J in Sakr Nominees, the Court should permit the Receiver, if so advised, to adduce further evidence particularising the work undertaken, and in particular to produce a schedule which effectively subcategorised each of the ten "issues" across the 53 "tasks".
In the light of those submissions, the Receiver sought and was granted an adjournment, and the application was adjourned to 3 July 2017, with directions for the service of further evidence.

[8]

Receiver's further evidence and submissions

The Receiver served a further affidavit of Domenic Calabretta, sworn 23 June 2017 ("second affidavit"), and further submissions dated 27 June 2017. The second affidavit included revised remuneration reports, providing considerably greater detail of the work in respect of which remuneration was claimed. The submissions included a proposal for referral of the matter to an insolvency practitioner as an expert.

[9]

Directions hearing 3 July 2017

At the directions hearing on 3 July 2017, directions were made for service of evidence in reply by the respondents. I did not accede to the Receiver's proposal for what was in effect a reference to an insolvency practitioner, and indicated that if the receiver wished to adduce expert evidence, a formal application would be required. No such application was made. The proceedings were adjourned to 7 August 2017.

[10]

Directions hearing 7 August 2017

At the directions hearing on 7 August 2017, the Receiver foreshadowed that he had instructed his solicitors to have his legal costs - which he claimed as expenses - submitted for costs assessment. The proceedings were fixed for hearing on 8 December 2017, with an agreed one day estimate; the Court offered a date in September, but the later date was fixed to accommodate the convenience of counsel. The respondents lodged supplementary submissions on 21 August 2017.

[11]

Application for costs assessment

On 17 October 2017, the Receiver filed, with the Manager Costs Assessment, the foreshadowed application for assessment, as between client and practitioner, of the costs which had been rendered by Piper Alderman, and which constituted the out-of-pocket expenses which he sought to recover from the Companies. On 30 November 2017, on the application of the Companies, that application was stayed pending the hearing of the remuneration application, essentially because - for reasons which will appear - it could not resolve all the issues in respect of the Receiver's expenses, and also the respondents could not reasonably be expected to deal with it in the short time that remained before the final hearing.

[12]

The final hearing

The hearing of the present application commenced on 8 December 2017, but the Receiver was still in cross-examination at the end of the day and the proceedings were adjourned, part heard, to 28 March 2018. On that day, the cross-examination of the Receiver was completed, and further written and oral submissions received. Following the hearing, written submissions in reply were lodged by the Receiver on 6 April 2018, to which the respondents responded on 13 April 2018.

[13]

Issues

The remuneration of court-appointed receivers is provided for by (NSW) Uniform Civil Procedure Rules 2005, r 26.4, which states that a receiver is to be allowed such remuneration (if any) as may be fixed by the Court. The Court has a very wide discretion in fixing the basis and level of remuneration. [5] Founding on what Young CJ in Eq said in Ide v Ide, [6] but drawing on the qualifications expressed in later cases, [7] the relevant principles may be restated, so far as they are relevant to the present case, as follows: [8] 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. In fixing remuneration, 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 ultimate question is what amount of remuneration is 'reasonable', and this involves considering (a) whether the work in respect of which remuneration is claimed was reasonably undertaken in the due course of the receivership, and (b) whether the amount claimed for it is a fair and reasonable reward for such work. On those questions, 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. 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, [9] 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. 1. 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. [10] 2. 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. 3. 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 of his or her staff. 4. 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. [11] However, the Court has an inherent jurisdiction to review receivers' disbursements as they are officers of the Court. [12] Further, a receiver may seek a direction that he or she would be justified in paying certain disbursements, in order to obtain prior protection in respect of such a disbursement. [13]

[14]

The Receiver's evidence

The respondents submitted that the Receiver did not adduce sufficient evidence - conformably with the requirements of In the matter of Sakr Nominees Pty Limited [15] - to enable the Court to be satisfied that the remuneration and expenses claimed were fair and reasonable. In Sakr Nominees, Black J observed that it was not the Court's role to review chronological work in progress schedules to endeavour to deduce which tasks related to which matters, where the insolvency practitioner did not adduce adequate evidence to facilitate the exercise.

[15]

Adequacy of the evidence of work done

In his second affidavit, the Receiver provided detailed evidence of the work undertaken by him and his staff, through reports produced from the time recording system "CORE IPS". These showed, for each item of work claimed, the date, duration and a narrative description of the work performed (drafted by the relevant fee earner at the time of making the entry), and a reference to the relevant ARITA work category. [16] The Receiver also explained how time spent was recorded in CORE IPS, including that the entries are made directly by the relevant staff member contemporaneously with doing the work, or if they do not have immediate computer access, as soon as reasonably practicable thereafter.
In addition, the Receiver produced additional schedules, for each Company, which categorised and sub-categorised the time entries in various ways, including according to the ten "Issues" described above; the six "ARITA Categories" to which work was allocated as entered into the time recording system; and (as the respondents had requested) the 53 "Tasks" identified in the first affidavit. The Receiver deposed as to why each task was undertaken. The Receiver's third affidavit, sworn 7 December 2017, provided some minor corrections to the allocations as to company, issue and task.
The Receiver - who is an experienced insolvency practitioner, and a member of ARITA who says that he observes the ARITA Code of Professional Practice - deposed that he regularly reviewed work in progress, to ensure that work being performed was appropriate, that a reasonable amount was being charged, and that he did not identify any work that was unreasonable to perform, was performed by an inappropriate person, or seemed to have taken an unreasonable period of time.
Whatever the deficiencies might have been in the evidence initially adduced by the Receiver, measured against the standard indicated by Sakr Nominees, the effect of the second affidavit and accompanying schedules produced by the Receiver is that the evidence now provides, in respect of each time entry for which remuneration is claimed, the date on which the work was performed; a description of the work by the fee earner who performed it; the name of the fee earner; the professional grade or seniority of the fee earner; the amount of time incurred; the amount charged for it; the ARITA category to which it was assigned; the "issue" to which it primarily relates; and the "task" to which it primarily relates. This evidence, extracted from the Receiver's time records, proves, at least prima facie, that the work recorded was done, the time that was spent on it, and the staff member who performed it. The schedules enable the work done to be analysed chronologically, by ARITA category, by "issue" and by "task", by fee earner, and by issue subcategorised by task and timeframe. In my view, this evidence is ample to enable assessment of a remuneration claim, based on the work done and recorded in the Receiver's time recording system.

[16]

Credit issues

The Receiver was cross-examined, and the respondents advanced submissions critical of his credit. Some, though not all, of those criticisms are well-founded. In particular, I am unable to accept as creditworthy the Receiver's claim that the communications between Piper Alderman and himself about removing Marsdens were confined to their role in acting for Gondon as vendor in the conveyance of units (the circumstances and communications simply do not permit that interpretation); [17] nor his evidence that there was no work done in respect of preparation of a report which he would not in any event have undertaken even had he not misapprehended that a report was required (notwithstanding that until as late as 15 December 2017 he was contemplating preparing a report for the Court in advance of the 21 December hearing, for which preparation must necessarily have by 15 December been well-advanced); nor that he would have investigated certain matters which he was asked by the plaintiff to investigate regardless of whether she had asked him to do so (notwithstanding that his staff first asked the plaintiff whether she wished them to investigate those matters); [18] nor that he thought he might be required to prepare a report by Corporations Act, s 422 (in cross-examination he suggested that an issue on 15 December was "my obligations under section 422" (to report contraventions to ASIC), and that this was a reason for seeking the Court's directions; he then said that it was a "side issue" - in fact it was not referred to in the application on 15 December at all, and it had never previously been mentioned). These were explanations, advanced to explain away issues raised with the Receiver, which the circumstances did not objectively accommodate.
On the other hand, I accept that, notwithstanding that it described the interest claimed as a charge for the Receiver's remuneration and expenses, the caveat in respect of Gondon's units was lodged primarily for the purpose of securing the assets, and that the reference to the Receiver's remuneration was, on advice, a means for ensuring that a valid caveatable interest was claimed. The Receiver says that that was his primary purpose, and that the caveat was drafted as it was on his solicitor's advice; the contemporaneous communications between the Receiver and his solicitor corroborate him in both respects.
Ultimately, however, questions of credit are of only slight significance in the resolution of the issues. The evidence of what work was done is provided by contemporaneous business records. In the result, as will become apparent, acceptance or rejection of the Receiver's contentions that the work would have been done in any event (regardless of whether he believed that a report was required, or whether the plaintiff requested it) has not been determinative. On the issue on which credit might have been determinative - namely, the purpose of the caveat - I have accepted the Receiver.

[17]

Mr Ngo's time

The respondents submitted that 39.4 hours claimed for work done by the Receiver's co-director Mr Ngo ought not be allowed. This submission was originally advanced on the basis that the only work attributed to Mr Ngo was "delegating", and that in circumstances where the Receiver himself charged a total of 47.6 hours, it was unreasonable for his co-director Mr Ngo to have incurred 39.4 hours merely "delegating". However, once evidence emerged that tended to show that Mr Ngo's work was not limited to "delegating", the basis of the submission shifted to a contention that the entries into the time recording system in respect of Mr Ngo were irregular and unreliable.
Mr Calabretta, who was the sole appointee as Receiver, is one of three directors of the firm Mackay Goodwin, the others being Messrs Ngo and Ward. I do not accept the respondents' submission that the Receiver described Mr Ngo's role as limited to assisting in "delegating work to a staff member(s) of appropriate seniority". That submission was founded on para [106] of the first affidavit, which on no fair reading says that; rather, in the context of explaining his practice in respect of the distribution of work between members of his staff, the Receiver deposed: 106 I also, in the usual course of appointments including this one, regularly ask my fellow directors, such as Andrew Ngo, to assist in delegating work to a staff member of the appropriate seniority.
The Receiver's evidence was that in this receivership, in conformity with the structure usually adopted by the Receiver for an administration - which utilised a lead appointee, a manager and analysts - Mr Ngo performed the role of a manager. Because Mr Ngo's time was charged at a rate $55 per hour less than the Receiver's own time, economies were to be achieved from his engagement, at least if it did not result in duplication. That he was engaged in such a role, and not merely in "delegation", is confirmed by the nature of the work attributed to Mr Ngo in the time records, examples of which include: 1. 15 units on 6 December 2016 for: tele conf with Thomas, Jonathan from Piper Alderman regarding outstanding issue re gain access to the premises, information requested from the defendant, options as to the possibility to trace funds; 1. 5 units on 7 December 2016 for: review corr from Marsdens regarding the sale of A206 and B206, instruct JC to prepare file note to ensure the sale price is at market price; 1. 4 units on 8 December 2016 for: update plaintiff's solicitor regarding the progress of investigation; 1. 5 units on 9 December 2016 for: review contract between Gondon Five and Arise Constructions (related party); 1. 15 units on 9 December 2016 for: review the settlement summary of the North Ryde project provided by Marsdens; 1. 3 units on 13 December 2016 for: discussion with LL regarding the uncooperation [sic] of the external accountant Ken Li and review letter prepared by Piper to accountant; 1. 5 units on 13 December 2016 for: seek advice from Piper re the Receiver's authority to sell property and instruct LL; 1. 15 units on 14 December 2016 for: review Affidavit prepared by Hai Yan Cui and Jing Song Cui dated 13 December 2016; and 1. 6 units on 15 December 2016 for: review email from Piper summary of the meeting with Judge and instruct LL steps going forwards.

[18]

The Receiver's opinion

The Receiver has deposed that he has not identified any work that was unreasonable to perform, or was performed by an inappropriate person, or seemed to have taken an unreasonable period of time. Although the opinion of the insolvency practitioner to this effect is a relevant consideration, [19] the evidence of a claimant for remuneration in those terms is more than a little self-serving. Perhaps unsurprisingly, I am yet to encounter an insolvency practitioner who deposes that he has identified any work that was unreasonable to perform, was performed by an inappropriate person, or seemed to take an unreasonable time. In my judgment, while requiring an applicant for remuneration to depose to those matters serves the prophylactic purpose of at least requiring that attention be directed to them, its self-serving nature means that in the face of contention it cannot be afforded much weight.

[19]

The scope of the appointment

By far the most significant issue in this case concerns the scope of the Receiver's appointment: to what extent was the work in respect of which remuneration is claimed reasonably undertaken in the due course of the receivership. The respondents submit that much of the work performed by the Receiver was not reasonably undertaken for the purposes of the attainment of the objectives for which he was appointed, and that he should not be allowed remuneration in respect of that work, nor reimbursement of related disbursements. This issue turns on the nature of the Receiver's appointment, and the scope of work that was reasonable to achieve its purpose.
The Receiver was appointed as an interim receiver and manager. This is manifest from the orders appointing the Receiver, and continuing the appointment, because the appointment was always limited in time, and for that matter, a very short time. The Receiver's initial appointment, by the 2 December 2016 order, was for one business day, "until and including 5 December 2016". That appointment was continued, for a further 13 business days, by the 5 December 2016 order, "until and including 21 December 2016". It is plain from the orders of 5 December that whether the appointment would continue beyond 21 December, even on an interlocutory basis, was contested and was to be resolved at an interlocutory hearing on that date. This was also apparent from the directions of 15 December. The appointment was therefore at all times an interim one, limited to a specified date. Moreover, on 15 December what had been understood by the Receiver from the outset was confirmed, namely that the purpose of the appointment was to take custody of and secure the assets of the companies and prevent further dealings with them.
The Receiver was given the powers in Corporations Act, s 420, which provides as follows: (1) [Powers generally] Subject to this section, a receiver of property of a corporation has power to do, in Australia and elsewhere, all things necessary or convenient to be done for or in connection with, or as incidental to, the attainment of the objectives for which the receiver was appointed. (2) [Specific powers] Without limiting the generality of subsection (1), but subject to any provision of the court order by which, or the instrument under which, the receiver was appointed, being a provision that limits the receiver's powers in any way, a receiver of property of a corporation has, in addition to any powers conferred by that order or instrument, as the case may be, or by any other law, power, for the purpose of attaining the objectives for which the receiver was appointed: (a) to enter into possession and take control of property of the corporation in accordance with the terms of that order or instrument; and (b) to lease, let on hire or dispose of property of the corporation; and (c) to grant options over property of the corporation on such conditions as the receiver thinks fit; and (d) to borrow money on the security of property of the corporation; and (e) to insure property of the corporation; and (f) to repair, renew or enlarge property of the corporation; and (g) to convert property of the corporation into money; and (h) to carry on any business of the corporation; and (j) to take on lease or on hire, or to acquire, any property necessary or convenient in connection with the carrying on of a business of the corporation; and (k) to execute any document, bring or defend any proceedings or do any other act or thing in the name of and on behalf of the corporation; and (m) to draw, accept, make and indorse a bill of exchange or promissory note; and (n) to use a seal of the corporation; and (o) to engage or discharge employees on behalf of the corporation; and (p) to appoint a solicitor, accountant or other professionally qualified person to assist the receiver; and (q) to appoint an agent to do any business that the receiver is unable to do, or that it is unreasonable to expect the receiver to do, in person; and (r) where a debt or liability is owed to the corporation - to prove the debt or liability in a bankruptcy, insolvency or winding up and, in connection therewith, to receive dividends and to assent to a proposal for a composition or a scheme of arrangement; and (s) if the receiver was appointed under an instrument that created a security interest in uncalled share capital of the corporation: (i) to make a call in the name of the corporation for the payment of money unpaid on the corporation's shares; or (ii) on giving a proper indemnity to a liquidator of the corporation - to make a call in the liquidator's name for the payment of money unpaid on the corporation's shares; and (t) to enforce payment of any call that is due and unpaid, whether the calls were made by the receiver or otherwise; and (u) to make or defend an application for the winding up of the corporation; and (w) to refer to arbitration any question affecting the corporation.

[20]

Investigations

In his first affidavit, the Receiver deposed that when he was first appointed, he understood his role to be to secure the assets of Gondon and CFAM, and to prepare a report for the Court in relation to his investigations. In his second affidavit, he said that he formed that view because he understood that there had been breaches by the respondents of the freezing orders made on 13 September 2016, and anticipated that the Court would seek an account of funds and assets from the date of the freezing orders to the date of his appointment. Similarly, in a letter to the respondents' solicitors dated 14 December 2016, the Receiver's solicitor stated: 5. The receiver sees himself as an independent and non-partisan representative of the court, appointed by the Court to secure the companies' property, investigate the companies' affairs, and report back to the Court.
It is therefore plain, from his own evidence, that the Receiver thought that his task involved investigating what if any transactions had taken place, before his appointment, in contravention of the freezing orders, with a view to preparing a report for the Court on that matter. The work he did reflects that understanding, involving investigations into pre-appointment transactions of the Companies, as well as into what were the assets of the Companies.
Unlike a liquidator, a court-appointed receiver - especially an interim one - is (at least absent specific direction) neither required nor expected actively to identify the property to be collected and received, nor (as Waddell J, as the later Chief Judge then was, explained in Corporate Affairs Commission v Smithson) to conduct investigations (emphasis added): [27] Where a receiver is appointed in other circumstances, if a party to the proceeding has been directed to deliver up property to the receiver and refuses to do so, the receiver should report the refusal to the solicitor of the party having the conduct of the proceedings who should then take the necessary steps to enforce delivery up: see Kerr on Receivers, 15th ed (1978) at 173. If property which the receiver is entitled to receive is in the possession of a person not a party to the proceedings he may, with the leave of the court, take proceedings for its recovery in the name of the party who would be entitled to sue apart from his appointment: Kerr (at 181). These rules reflect the general position of a receiver which is to receive the property which is in contest in the litigation. It is not his duty actively to identify the property which he is to collect and receive. This must be done between the parties to the litigation. The receiver is not an agent of either of the parties and it would, I think, be contrary to his usual position that he should be required to investigate the affairs of one of them virtually as the agent for the other.

[21]

Partiality

By no means was all liaison between the Receiver and the plaintiff, and the plaintiff's solicitors, necessarily inappropriate; some is not only entirely appropriate, but necessary, as it is the plaintiff who procures the appointment, and (as explained later) the plaintiff's solicitor who is expected to exercise a degree of oversight of it. However, a receiver should not be partisan, should not become involved in arguing for or against the continuation of the appointment, [32] and should not intermeddle in any litigation between the parties. [33] While the line is not necessarily clear, it was crossed when the Receiver effectively invited instructions to investigate transactions which preceded his appointment, and when his solicitors became involved in critiquing the respondents' evidence, assisting the plaintiff's case, and contemplating procuring the removal of the respondents' solicitors.
As the respondents submit, the Receiver took instructions from the plaintiff (and her solicitors) as to some of the tasks he was to undertake. While it was entirely appropriate for the Receiver to liaise with the plaintiff and her solicitors for the purpose of obtaining information, it overstepped the bounds of impartiality to allow the plaintiff and her solicitors to determine what the Receiver should do. At a meeting on 6 December 2016 (for which remuneration is claimed) the plaintiff, two of her solicitors' staff and three of the Receiver's staff discussed matters which included placing bank traces on "unknown and suspicious transactions"; and the plaintiff requested the investigation of dealings between Gondon and Arise Constructions, and with other parties. On 6 December, the Receiver's staff acted on the plaintiff's solicitor's request to have a bank trace of transactions on 2 December. An email on 7 December 2016 from the Receiver's staff to the plaintiff's solicitor identified three transfers to Weidong Zheng, on 10 and 28 November, and asked "Are you aware of the nature of the above payments? Would you like us to investigate them?"; the response included "please investigate". In cross-examination, the Receiver said that this email of 7 December was "worded incorrectly" by his staff, and the answer would not have changed what would have happened: "I would have investigated regardless of her answer". It is difficult to believe that such investigations would have been undertaken regardless of the plaintiff's instructions, as otherwise seeking her instructions would have been a pointless (and wasteful) exercise. Regardless, the correspondence evinces partiality on the part of the Receiver. And in any event, such investigations into transactions which preceded his appointment were unjustified.

[22]

The litigation and the application for directions

The Receiver attended court, with multiple members of his staff, and his solicitors, on each occasion when the substantive application was before the Court - that is, on 5, 21 and 23 December 2016. In addition, as has been noted, the Receiver caused the matter to be relisted on 15 December 2016 for the purpose of his seeking directions, in particular as to whether the Court expected him to produce a report for the hearing on 21 December; he attended that hearing with members of his staff, his solicitors, and senior counsel. No prior approach was made to any party to make the application.
Ordinarily, a receiver will not be allowed the costs of intermeddling in litigation between the parties, [34] and applications to the court should as a general rule be made by the persons beneficially interested, and not by the receiver; if an application to the court becomes necessary, the receiver should apply in the first instance to the party having carriage of the order, or if necessary some other party, to make the application. If, that having been done, no application is made, and no proper means taken to address the receiver's difficulty, or if the matter is so urgent that it cannot await applying to the parties, then the receiver may himself or herself make the application and would in that event be entitled to costs. [35]
Consistently with this view, in Corporate Affairs Commission v Transphere Pty Ltd (No 2), [36] Kearney J held that it was inconsistent with the nature of the appointment of a receiver to apply for a defendant to be punished for contempt, such an application being properly to be brought by the plaintiff (on whose application the receiver had been appointed) and not by the receiver. His Honour referred to the following statement in Parker v Dunn: [37] Generally the receiver in a cause ought not to make any application to the Court. If he finds himself in circumstances of difficulty he should apply to the plaintiff to make the necessary application and on his default the receiver may then properly apply to the Court.
Contrary to the Receiver's submission, this rule is not confined to applications about controversial matters of substance, and applications to obtain clarification of the scope of the appointment do not constitute an exemption. [38] It is (typically) the plaintiff who obtains an order for appointment of a receiver and the initial description of the receiver's function and powers; and if the receiver is in doubt, then the appropriate course is to approach the plaintiff and ask it to make any necessary application for clarification. Except perhaps in cases of urgency, it is only appropriate for the receiver to make the application if the plaintiff refuses or fails to do so. It is for the plaintiff to obtain the requisite orders from the Court for delivery of property to the receiver, and for the plaintiff to enforce compliance with the Court's orders.

[23]

Retaining solicitors

A substantial component of the remuneration claim is in respect of work done in instructing and liaising with Piper Alderman, the solicitors instructed by the Receiver. Moreover, the expenses claim is in respect of the costs rendered by Piper Alderman for so acting.
Piper Alderman were given an extensive remit. The Receiver described the retainer in these terms: I also instructed Thomas Russell of Piper Alderman, a law firm that I engage from time to time and with expertise in the area of insolvency, to assist in notifying the solicitors of CFAM and Gondon and to advise and assist in relation to any legal issues that were to arise in the receivership of CFAM and Gondon. These issues are outside my area of expertise.
As the respondents submitted, they were instructed by the Receiver in respect of virtually every issue that arose in the course of the receivership, "including sending virtually all of the correspondence, and advising the Receiver at each and every turn".
The solicitor for the party with the conduct of the matter is responsible for exercising a general supervision over the receiver. According to Kerr, a receiver/manager should ordinarily not, without the court's approval, retain separate solicitors, and if it is desired to obtain advice from a separate solicitor, the receiver should obtain the leave of the court, on his or her own application if a party will not make the application. [42]
This may be too strict a view nowadays, and as the powers in s 420 include: (p) to appoint a solicitor, accountant or other professionally qualified person to assist the receiver; it cannot be suggested that the Receiver lacks power, without the leave of the Court, to retain a solicitor. However, power to do so does not mean that it is necessarily reasonable to do so, and the approach referred to by Kerr indicates that caution should be exercised in doing so.
It seems to me that where receivers are required, within the scope of their appointment, to undertake steps about which legal advice would ordinarily be obtained - such as the sale of real property - they would act reasonably in retaining solicitors for that purpose, although they should give serious consideration to having one or other of the parties' solicitors act if that can safely be done. It may well be that receivers are also entitled to retain solicitors in connection with matters personal to the receivers, such as their remuneration, and questions of potential personal liability. However, consistent with the position that a receiver should not become embroiled in the litigation or make applications to the court, at least unless a party refuses to make an appropriate application, receivers should not engage solicitors to advise generally on matters relating to the conduct of the receivership, such as the recovery of property by enforcement procedures. [43]

[24]

After discharge

Some $6,168.50 of the remuneration claimed relates to the period after the Receiver was discharged. A receiver is entitled to remuneration for those services necessary and reasonable to finalise the receivership, even if they are performed after discharge. [45] Some of the work in question appears to involve the preparation of ASIC forms, arrangements for the transfer of authorities for bank accounts, and seeking approval of his remuneration. Those are matters that were reasonable and necessary to finalise the receivership and return control of the Companies to the directors, and in principle the Receiver should be remunerated for them, although the quantum claimed for some items is surprising, and is considered further below. However, other aspects, including the settlement of the sales of the two units, were not.

[25]

Proportionality

The respondents submitted that the question of proportionality was highlighted when the quantum of the claim was viewed against the progress made by the Receiver during the term of the appointment, and that the amount allowed should be very considerably reduced on that account.
The respondents sought to emphasise that while 11 persons in the Receiver's office, and five in the office of Piper Alderman, were engaged in the administration, the tangible results achieved by the Receiver were confined to entering into (though not completing) the sale of the units A206 and B206 (which contracts had already been negotiated and prepared by Marsdens), and lodging the single caveat in respect of the titles to 44 properties in the development. Against that, the Receiver stressed that the properties secured by the caveat were valued at in excess of $40,000,000, and that the two sold realised $1,519,000.
Of course, I accept that the notion of proportionality is a relevant and often significant factor in the context of remuneration applications. [46] But I also accept the Receiver's submission that the concept of proportionality is not confined to an exercise in assessing the "return gained", having regard to the length of the appointment and the fees incurred (as the respondents suggest). In contrast to the cases in which the question of proportionality has loomed large, the main purpose for which this receiver was appointed was not to realise and/or distribute assets, but to protect the assets of the Companies and ensure that they were not dissipated while the dispute between shareholders was being litigated. In those circumstances, remuneration according to the value of assets realised would not incentivise the receiver. As Bathurst CJ has observed in connection with the concept of proportionality, the mere fact that the work performed does not lead to augmentation of the funds available for distribution does not mean a liquidator is not entitled to be remunerated for it, and if the work was necessary there is no reason the liquidator should not be remunerated for it. [47] Thus in valuing the services performed by the Receiver, the Court must have regard to the work actually (and necessarily or reasonably) done, including in compliance with statutory obligations.
Whether work was reasonably done is judged against the objects of the appointment, and whereas in a liquidation or quasi-liquidation the realisation and distribution of assets means the value generated will often be an important consideration, it is much less so where the object is preservation. This being a receivership - and an interim one at that - which does not involve the realisation of assets, the payment of liabilities and the distribution of surplus, a commission or percentage-based approach provides little assistance. In this type of appointment, where the object is to secure and hold (but not realise) assets, notions of "return gained" are of little assistance, and a time-costed basis, despite its deficiencies, will often be the more useful methodology for valuing work necessarily or reasonably done, at least as a starting point. The urgency with which the work is required to be performed, and the difficulty and importance of the work, are also relevant considerations.

[26]

Analysis of the claim

The revised remuneration reports contained in the Receiver's second affidavit enable the Court to see with a high level of granularity what remuneration is claimed for what tasks, by allocating the work done in three ways - by the general "ARITA categories", and by the "Issues" and the "Tasks" that were identified as relevant to this receivership.
It has often been said that it is not the function of a judge to conduct a line-by-line or item-by-item review of a remuneration claim. While this is particularly so on review applications where there has been an earlier decision of a registrar, it remains important to remember that the court has a wide discretion in respect of remuneration, and the exercise - generally speaking - involves approximation and estimation rather than precise measure and calculation. Nonetheless in this case, while I do not propose to descend to a line-by-line review of each chronological entry in the time recording system, the evidence facilitates a relatively detailed analysis by each of the three approaches I have mentioned. The analysis by Tasks gives the greatest fidelity, granularity and accuracy, and I give most significance to it; but it is useful first to view the remuneration claim through the prism of the other two allocation methodologies.
While the detail provided in the Receiver's second affidavit and supplementary schedules has enabled a detailed analysis, it has inevitably required a close perusal of the entries, arranged in the various different ways that have been presented. This has been a laborious and time-consuming exercise, to accommodate which it has been necessary to find sufficient blocks of time to devote to it, which has contributed in part to the time which finalisation of this judgment has taken.

[27]

By ARITA Categories

Allocated according to the ARITA categories, as contemporaneously entered into the time recording system at the time of each entry by the relevant staff member, the remuneration claimed (GST exclusive) was as follows: Category Gondon CFAM Total Administration 9815 4059 13874 Investigations 47765 16015 63780 Assets 15612 429 16041 Creditors 1359 874 2233 Trade-on 2310 0 2310 Dividend 742 0 742 Total 77603 21377 98980

[28]

The generality of the ARITA categories, and the relatively arbitrary nature of the allocation of work between them, makes this analysis of limited utility in this case, although it does serve to highlight the very great proportion of the claim - almost 65% - that is attributed to "Investigations".

[29]

By work Issues

Reference has already been made, in outlining the nature of the work done by the Receiver, to the ten "Issues" across which the Receiver has, when preparing his remuneration application, allocated the work done. This allocation was not contemporaneous with performance of the work, but represents the Receiver's endeavour to provide a more descriptive presentation than the ARITA categories. Those issues provide a convenient approximate basis for identifying, in principle, work that was and was not within the scope of the appointment, which can then be applied in the more detailed review of the "Tasks".

[30]

1 - Books and records ($8,813 for Gondon and $1,841 for CFAM)

The steps taken by the Receiver to obtain possession of the books and records of both companies - he says so that he could ascertain their financial position, and determine the nature of their businesses - included arranging for staff to attend at the registered office, and correspondence between Piper Alderman and the respondents' solicitors Marsdens. The Receiver's evidence is that significant costs and expenses were incurred before his firm was able to obtain access to the books and records of the Companies, due to the approach taken by the Respondents and their solicitors.
It is not in dispute that it was within the scope of the appointment for the Receiver to take steps to obtain sufficient books and records of the Respondents to allow the Receiver to achieve the purpose of his appointment. However, what the Receiver did went well beyond this. On 6 December, without any prior notice or request, employees of the Receiver attended the registered office of Gondon, being premises occupied by Arise Constructions Pty Ltd. Having found those premises unattended, the Receiver caused correspondence to be sent to Marsdens, demanding delivery up of the books by close of business of 7 December 2016. Notwithstanding that deadline, on the morning of 7 December, the Receiver's employees again attended the registered office and demanded the keys to the office. Only on 8 December, following a query from the Respondents' solicitors, was a request made of the respondents for the books and records of the Companies, which were promptly made available on 9 December. The repeated demands that the Receiver be provided with the keys to the registered office - in circumstances where those premises were occupied by Arise Constructions, a third party albeit one related to Jinsong - were not reasonable, nor was the attendance of the Receiver's staff in person.

[31]

2 - Status of sales ($11,632 for Gondon, and $385 for CFAM)

The steps taken by the Receiver to obtain details concerning the status of sales of the units in Gondon's development were, as he says, for the purpose of ascertaining Gondon's asset position and the progress of the sale of its assets. That information, when provided to the Receiver, appeared to him to contain some discrepancies. In an endeavour to resolve this, there was further correspondence with the respondents' solicitors.
Gondon's assets and undertaking, to which the Receiver was appointed as Receiver and Manager, was the development of the North Ryde property and the sale of the units in it. It was properly within the Receiver's function to ascertain the status of unit sales, and their ongoing marketing. The quantum claimed for this task is however surprisingly high, and is further addressed (in the analysis by Tasks) below.
Part of this claim was described as involving "obtaining valuations re Gondon's units", to which $3,467 was attributed. The Receiver says he undertook this task because he considered it necessary to obtain valuations as it was his duty to obtain market value for the sale of any property, and in particular for the sale of units A206 and B206. Although it was not the Receiver's function to realise the property of which he was appointed receiver, it would have been reasonable to obtain valuations of A206 and B206 in contemplation of proceeding with those sales. However, he did not obtain valuations at all (one of his staff members simply prepared a file note about their valuation), and examination of the detail of the work attributed to this heading reveals that it was not for the purpose of obtaining valuations, but partly associated with ascertaining the status of the sales, and partly with investigations that went far beyond identifying assets for the purpose of receiving them. Despite the misdescription of the nature of this work, I have allowed about half.

[32]

3 - Caveats ($2,640, for Gondon).

The respondents submitted that the remuneration and expenses claimed in connection with the single caveat (including those associated with its removal), which was drafted by Piper Alderman and executed by a member of that firm, and not by the Receiver personally, and which described the interest claimed as a charge for the Receiver's costs and expenses, should not be allowed at all, for the reason that such a caveat was entirely unjustified, and that the lodgement of a caveat to secure the Receiver's remuneration was not a step taken in the interests of the receivership (but in the Receiver's personal interest). However, as I have already indicated, I accept that, notwithstanding the claim in the caveat, the Receiver's dominant purpose was to secure the properties and prevent dealings without his consent.
The apartments held by Gondon were in effect its trading stock. Securing them against the risk of unauthorised disposition was perhaps the most important task of the appointment. Lodging a caveat for that purpose was within the scope of the appointment. Given the importance of compliance with the law relating to caveats, it would ordinarily have been reasonable for a receiver who was not legally qualified to engage a solicitor for this purpose, and given the nature of the task, the value and extent of the property involved, and the restrictions on his practising certificate, it was not unreasonable for this receiver, despite his legal qualification, to retain solicitors to do so. However, the quantum claimed for what was involved is again surprisingly high, and is further addressed (in the analysis by Tasks) below.

[33]

4 - ABMG ($2,398 for CFAM)

The attempted lock out of ABMG's business premises potentially interfered with the operation of its business. The plaintiff was the director of ABMG. While the shares in ABMG were held by CFAM in its trustee capacity, the Receiver was appointed to secure the assets of the respondents CFAM and Gondon only; the relevant asset of CFAM was its shareholding in ABMG, not the business of ABMG. The Receiver's function was to secure and preserve that shareholding; he was not appointed to ABMG's assets or undertaking. The Receiver had no business in instructing solicitors to intervene in the attempted lockout.
The matter was raised with the Receiver by the plaintiff's solicitors, and even if (contrary to my view) it amounted to an interference with or disturbance of the receiver's possession, it should have been left to the plaintiff to prosecute any such complaint.

[34]

5 - Subpoena ($2,713 for Gondon and $880 for CFAM)

The respondents submitted that no application, let alone order, having been made under UCPR r 33.11 for the respondents to pay any amount of costs to the Receiver in connection with his compliance with the subpoena, the claim for remuneration and expenses in respect of complying with the subpoena should not be allowed.
However, independently of UCPR r 33.11, a Receiver is entitled to be indemnified or compensated in respect of costs incurred and work done by him in that capacity. The Receiver received the subpoena because and by reason of his office as receiver, and he was obliged to respond to it. He is entitled to be remunerated and indemnified for time and expenses reasonably incurred in doing so. However, for reasons which have been explained above, it was not reasonable for him to incur expenses of obtaining legal advice in connection with what was a routine subpoena.

[35]

6 - Investigation of transactions ($6,675 for Gondon and $148 for CFAM)

The Receiver's investigation of transactions made from the bank accounts of Gondon in the period between 1 August 2016 and 2 December 2016 involved reviewing the bank statements and liaising with the plaintiff's solicitors and the Bank. These transactions, and the payment made to Marsdens on 28 October 2016 which was also investigated, took place before the Receiver's appointment. It is clear that these investigations were carried out at the request of the plaintiff, and substantially for the purpose of ascertaining whether there had been contraventions of the freezing order, and/or in connection with the preparation of the Receiver's proposed report to the Court.
For reasons already explained, the suggestion that this was in aid of identifying potential loan accounts and recovering "money sitting in them" is misconceived and implausible: first because the relevant asset was the chose in action, not money "sitting" in it; secondly, because it is not conceivable that steps to recover any such loan account would have been instituted within the very short timeframe of the interim appointment; and thirdly, because the explanation which seems most obvious having regard to the work undertaken corresponds with the one the Receiver gave at the time, namely that he was carrying out investigations to ascertain whether there had been contraventions of the freezing orders and to inform the report he anticipated preparing.
Although the Receiver protested that he undertook no work in anticipation of the then contemplated report which he would not otherwise have undertaken in any event, that does not avail him, because he was not required to carry out investigations into pre-appointment transaction, for any reason; as will be apparent from the above discussion of the scope of the appointment, that was not an object of his appointment and formed no part of the Receiver's proper functions. If potential past contraventions of the freezing order were to be investigated, that was a matter for the plaintiff.

[36]

7 - Litigation ($16,935 for Gondon and $7,118 for CFAM)

This issue covers time incurred in connection with the substantive proceedings between the plaintiff and the defendants - in particular in connection with attendances at court on 5, 21 and 23 December 2016 - and work done in connection with the Receiver's application for directions on 15 December 2016.
The Receiver prepared for, attended at and reviewed, and instructed solicitors in relation to, all proceedings "related to but not limited to the scope of my appointment", including attending the hearings on 5 December, 15 December (with senior counsel), 21 December and 23 December. He attended the hearings with multiple members of his staff. In his first affidavit the Receiver says: During the course of the receivership, my office was involved in instructing and liaising with my solicitors in relation to all ongoing proceedings related to but not limited to the scope of my receivership.
He instructed solicitors to make, and retain senior counsel in connection with, the application to clarify the scope of his appointment.
For reasons that have been explained, the Receiver was not justified in making an application to the Court for directions; he ought to have drawn his concerns to the attention of the plaintiff's solicitors and invited them to make such an application, which would have inflicted no cost on the estate. Moreover, the Receiver had no business in attending at the various hearings in the proceedings. He says he did so, "in case the Court wanted to hear from" him. The Court had not asked him to do so. In any event, there was no good reason for him to attend, as he did, with multiple staff members and solicitors. On 5 December 2016, the Receiver and four of his staff charged 11 hours for attending Court and "considering" the orders of that date. On each of 15 December 2016, 21 December 2016 and 23 December 2016, he was accompanied by no less than two staff, as well as two solicitors from Piper Alderman. As I have indicated, I will with misgivings make allowance for his personal attendance only, on 5 and 21 December, but not otherwise.

[37]

8 - Contracts for sale of units A206 and B206 ($4,816 for Gondon).

These sales (of units A206 and B206 for a total price of $1,519,000) had already been negotiated prior to the appointment, and the contracts had already been drafted by Marsdens. The Receiver merely obtained advice that he was entitled to proceed, instructed and liaised with his solicitors in connection with the execution of the contracts, executed the contracts, and had his solicitors attend on exchange. He was not involved in their completion (which took place in 2017, after the discharge of the Receiver on 23 December 2016).
As I have indicated, I am prepared to allow that he was entitled to obtain separate legal advice as to whether he was entitled to proceed with the sales, and to instruct his own solicitors to act on them. However, given that the contracts had already been drafted by Marsdens, and that his only involvement was to execute and exchange contracts, the amount claimed appears disproportionate.

[38]

9 - Any other necessary work ($16,460 for Gondon and $4,954 for CFAM).

The other work said to be necessary to fulfil the Receiver's functions was described by the Receiver as including: 1. Perusing the judgments of the Court in relation to the background to the proceedings. I accept that it was reasonable for the Receiver to peruse the judgments of the court, to understand the background to the appointment. 2. Conducting investigations into the asset position of the Companies, liaising with real estate agents to ensure the ongoing trading of the business and to ascertain the progress of the sale of properties, and dealing with creditor inquiries. This appears largely to duplicate Issue 2 (Status of sales). 3. Liaising with the plaintiff's solicitors regarding the background to the proceedings and the books and records of the company. This appears at least partly to duplicate Issue 1.

[39]

10 - Mandatory work ($7,849 for Gondon and $3,655 for CFAM).

Mandatory work, of an administrative nature, which does not relate to securing or preserving assets but is required to be performed by a receiver, should be remunerated. However, the amount claimed is surprisingly high.

[40]

Summary

The result of the foregoing analysis is an indication that, once work outside the proper scope of the receivership is excluded, and work for which a disproportionate amount is claimed is reduced, the following amounts may be appropriate. In moderating amounts which appear disproportionate (for example, "Books and records" and "Status of sales"), I have also had regard to the analysis by Tasks which follows. The sub-categorisation of the Issues by the Tasks, in a schedule produced at the hearing, together with the review of the work by Tasks undertaken below, has facilitated this exercise. Issue and claim Allowed (Gondon) Allowed (CFAM) 1 - Books and records ($8,813 for Gondon and $1,841 for CFAM) [48] 3775 814 2 - Status of sales ($11,632 for Gondon, and $385 for CFAM) [49] 4800 385 3 - Caveats ($2,640, for Gondon) [50] 1200 0 4 - ABMG ($2,398, for CFAM) 0 0 5 - Subpoena ($2,713 for Gondon and $880 for CFAM) [51] 1311 715 6 - Investigation of transactions ($6,675 for Gondon and $148 for CFAM) 0 0 7 - Litigation ($16,935 for Gondon and $7,118 for CFAM) 0 0 8 - Contracts for sale of units A206 and B206 ($4,816 for Gondon) [52] 2400 0 9 - Any other necessary work ($16,460 for Gondon and $4,954 for CFAM) [53] 10000 4000 10 - Mandatory work ($7,849 for Gondon and $3,655 for CFAM) [54] 4000 3200 Total 27486 9114

[41]

This is not a conclusion as to what amount is reasonable remuneration; as I have said, I give greater significance to the analysis by tasks. However, it provides a guide.

[42]

By Tasks

As has been mentioned, the Receiver identified various "Tasks" of the receivership, which were referenced according to the paragraph of his second affidavit in which each was described: paragraph 29 described tasks relating to CFAM; paragraph 32 described tasks relating to Gondon during the period 2 to 5 December 2016; paragraph 33 described tasks relating to Gondon during the period 6 to 23 December 2016; and paragraph 34 described tasks performed in connection with both administrations following the Receiver's discharge on 23 December 2016. In respect of each of those 53 Tasks, the Receiver provided an explanation as to why he considered it necessary to undertake it. As with the "Issues", this allocation was not contemporaneous, but was undertaken by the Receiver in the preparation of his evidence, to indicate so far as practicable the task to which particular work was primarily referable. Recognising that there is some room for overlap between tasks, the Receiver used his judgment and experience to assign each time entry to the most appropriate Task; I have accepted his allocation, which was not the subject of challenge.
In order to reflect that some work has in reality been apportioned between the two administrations, in the following analysis I have dealt with both administrations together, but indicated the item number allocated by the Receiver to the task, and the respective claims made in the Gondon and CFAM administrations. For these purposes, I have used $400 per hour as a yardstick for fair and reasonable remuneration for the Receiver's time, regardless of whether the work was performed by the Receiver personally or a senior or junior member of his staff; given the rates which he has disclosed, as an average that errs in his favour. [55] There is one exception, which will become apparent, where I have specifically allowed for the Receiver's own time, at the higher rate of $500 per hour.
In the following review of the remuneration claim allocated by "Tasks", I consider each of the 53 "tasks" compendiously, rather than by resort to individual time entries within each. The Court is not expected to undertake a line-by-line taxation. Analysis according to the 53 tasks provides a relatively refined indication as to the quantum of the remuneration claimed that is attributable to tasks within the proper scope of the receivership, and how much is not, which in turn informs, but does not dictate, the ultimate conclusion as to the value of the work properly undertaken by the Receiver. In this approach, there will likely be "swings and roundabouts", as while some tasks which are disallowed might on closer examination include some individual items which might have been allowed, equally some tasks which are allowed might on more detailed review contain items which should have been disallowed.

[43]

Up to 5 December

Preparing letters to banks regarding bank accounts held by Gondon (32.1 - $883) and held by CFAM (29.1 - $714). Allowed: this was a reasonable step towards securing the assets of the companies, and in particular their bank accounts.
Preparing and lodging the required forms with ASIC (Gondon 32.2 - $758) (CFAM 29.2 - $1055). Allowed: this was necessary work incidental to the appointment.
Discussing with the solicitors for [the plaintiff] the background in relation to the appointment (Gondon 32.3 - $2549). Discussing with the solicitors for [the plaintiff] the background in relation to the appointment (CFAM 29.3 - $1320). Allowed: initial consultations with the plaintiff's solicitors, to familiarise the Receiver with the background to and purpose of the appointment, are reasonably incidental to the appointment. That is particularly so given the role of the plaintiff's solicitors in maintaining a general oversight of the appointment.
Attending the hearing on 5 December 2016 (Gondon 32.4 - $2539) (CFAM 29.4 - $2082). Allowed only as to the Receiver's personal attendance, otherwise disallowed: the Receiver attended with four members of his staff (as well as two solicitors, although no formal appearance was announced), for which he claims remuneration for almost 11 hours for their attendances and consideration of the Court's orders. For reasons already explained, I allow, with misgivings, the Receiver's personal attendance (but not that of his staff), at $825 for Gondon and $825 for CFAM.

[44]

5 to 23 December

Securing Gondon's cash at bank (Gondon 33.1 - $1306). Allowed: this was a reasonable step in securing the assets of Gondon, and in particular its bank accounts.
Opening new accounts for the companies (Gondon 33.2 - $235). Allowed: the Receiver says that this was undertaken in order to enable the transfer of account balances into an account controlled by him. Although arguably unnecessary once the existing accounts were secured, I have allowed this as reasonably incidental to securing the cash assets.
Conducting land title searches in relation to Gondon (33.3 - $325) and in relation to CFAM (29.5 - $589). Allowed: conducting land title searches was a reasonable step in identifying, for the purpose of getting in and securing, the real assets of the companies, for the purpose of the receivership.
Notifying ATO of appointment (Gondon 33.4 - $225). Allowed: this was necessary work incidental to the appointment.
Reviewing and preparing Director's packages (Gondon 33.5 - $450) (CFAM 29.7 - $450). Allowed: this was a reasonable step in identifying and taking control of the Companies' assets and undertaking.
Meeting with plaintiff's solicitors re background and ongoing proceedings (Gondon 33.6 - $342). Disallowed: an initial meeting for backgrounding was appropriate and has been allowed, to the extent of $3,869, which should more than have covered this requirement (see Tasks 29.3 and 32.3). Although the Receiver says that this further meeting was to obtain an understanding of the company's affairs and asset position, the task description, and the time records and file note of 6 December 2016, makes clear that a significant aspect was discussing the ongoing proceedings, which ought not have been the Receiver's concern.
Issuing various notices in relation to the books and records of Gondon (33.9 - $3775) and CFAM (29.10 - $414). Allowed: seeking access to the books and records of the Companies was a reasonable step to be taken for the purpose of identifying the assets which the Receiver was obliged to get in. Although the amount in respect of Gondon appears surprisingly high, I have not discounted it, bearing in mind that I have disallowed in full the following two items; a more precise exercise might well have involved partial allowances under all three.
Attending Gondon's premises to obtain books and records (Gondon 33.7 - $3157). Disallowed: while I have allowed notices seeking access to the books and records, it was not the Receiver's function to endeavour to enforce, by self-help means, access to books and records by attending on the registered office (of which a third party was the occupier), in an attempt to take possession of them.

[45]

After discharge

Arranging for transfer of funds in accordance with Court's orders (Gondon 34.1 - $3685) (CFAM 34.1 - $704). Allowed in part: the Receiver says that this was undertaken to ensure that the Companies' funds were transferred out of the accounts which had been opened by his firm, and returned to the companies. While this was a necessary step in conjunction with the Receiver's discharge, it should not have required ten hours' work. I have allowed approximately half, namely $1,885 and $350 respectively.
Obtaining advice re tax implications of sale of A206 and B206 (Gondon 34.2 - $2530). Disallowed: the Receiver says that he was concerned that there may be tax implications for him following the sale of units A206 and B206, and he considered it necessary to obtain legal advice on that issue. Although he asserts that the implications were for him "as receiver and manager", he had ceased to be receiver and manager; the advice was obtained for his own personal benefit. This was not a proper estate expense.
Liaising and instructing solicitors re withdrawal of caveats (Gondon 34.3 - $358). Disallowed: although this would have been a reasonable, if not necessary, consequence of the Receiver's appointment, the individual time entries attributed to this task show no relationship to such a task.
Liaising and instructing solicitors re settlement of A206 and B206 (Gondon 34.4 - $495). Allowed: the Receiver was required to facilitate the withdrawal of caveats to enable settlement, although he had been discharged.
Lodging required forms with ASIC (Gondon 34.5 - $215) (CFAM 34.5 - $265). Allowed: this was required in conjunction with the Receiver's discharge.
Fee approval (Gondon - $948) (CFAM - $275). Allowed: this was properly incidental to the Receiver's discharge.

[46]

Summary

Thus I am satisfied that the following was work reasonably undertaken within or incidental to the scope of the appointment to CFAM: Task No Description Amount 29.1 Preparing letters to banks regarding bank accounts held by CFAM 714 29.2 Preparing and lodging the required forms with ASIC 1055 29.3 Discussing with the solicitors for Tracy the background in relation to the appointment 1320 29.4 Attending the hearing on 5 December 2016 825 29.5 Conducting land title searches in relation to CFAM 589 29.7 Reviewing and preparing Director's packages 450 29.8 Obtaining the bank statements of CFAM 50 29.9 Reviewing the bank statements of CFAM 200 29.10 Issuing various notices in relation to the books and records of CFAM 414 29.12 Reviewing the books and records provided by CFAM's accountant and directors 450 29.14 Preparing and attending hearings on 21 and 23 December 2016 1375 29.16 Complying with subpoena 715 34.1 Arranging for transfer of funds in accordance with Court's orders 350 34.5 Lodging required forms with ASIC 265 Fee approval 275 Total 9047

[47]

In respect of CFAM, I have disallowed the following: Task No Description Amount 29.4 Attending the hearing on 5 December 2016 1257 29.6 Corresponding with CFAM's secured creditors 1039 29.9 Reviewing the bank statements of CFAM 389 29.11 Instructing and liaising with solicitors regarding requests for books and records 858 29.12 Reviewing the books and records provided by CFAM's accountant and directors 799 29.13 Liaising with solicitors regarding correspondence in relation to ABMG 3058 29.14 Preparing and attending hearings on 21 and 23 December 2016 3987 29.15 Liaising with solicitors regarding subpoena 165 34.1 Arranging for transfer of funds in accordance with Court's orders 354 Total 11906

[48]

I have allowed the following as work reasonably undertaken within or incidental to the scope of the appointment to Gondon: Task No Description Amount 32.1 Preparing letters to banks regarding bank accounts held by Gondon 883 32.2 Preparing and lodging the required forms re appointment with ASIC 758 32.3 Discussing with the solicitors for Tracy the background in relation to the appointment 2549 32.4 Attending the hearing on 5 December 2016 825 33.1 Securing Gondon's cash at bank 1306 33.2 Opening new accounts for the companies 235 33.3 Conducting land title searches 325 33.4 Notifying ATO 225 33.5 Reviewing and preparing Director's packages 450 33.9 Issuing various notices in relation to the books and records of Gondon 3775 33.10 Instructing and liaising with solicitors re lodgement of caveats 1200 33.11 Instructing and liaising with solicitors re signing and exchange of contracts for sale of A206 and B206 2400 33.13 Obtaining the bank statements of Gondon 934 33.14 Reviewing the bank statements of Gondon 725 33.16 Liaising with Gondon's agents re marketing units 2000 33.17 Obtaining valuations re Gondon's units 1800 33.19 Attending meetings with agents re status of sales of units 1336 33.23 Arranging for Gondon's compliance with its statutory obligations 1000 33.25 Preparing and attending hearings on 21 and 23 December 2016 1375 33.27 Complying with subpoena 1311 34.1 Arranging for transfer of funds in accordance with Court's orders 1885 34.4 Liaising and instructing solicitors re settlement of A206 and B206 495 34.5 Lodging required forms with ASIC 215 Fee approval 948 Total 28955

[49]

In respect of Gondon, I have disallowed the following: Task No Description Amount 32.4 Attending the hearing on 5 December 2016 1714 33.6 Meeting with plaintiff's solicitors re background and ongoing proceedings 342 33.7 Attending Gondon's premises to obtain books and records 3157 33.8 Instructing and liaising with solicitors re requests for books and records 4736 33.10 Instructing and liaising with solicitors re lodgement of caveats 1685 33.11 Instructing and liaising with solicitors re signing and exchange of contracts for sale of A206 and B206 3907 33.12 Correspondence with Gondon's secured creditors 2137 33.14 Reviewing the bank statements of Gondon 1503 33.15 Investigating questionable transactions including arranging traces 4791 33.16 Liaising with Gondon's agents re marketing units 908 33.17 Obtaining valuations re Gondon's units 1667 33.19 Attending meetings with agents re status of sales of units 670 33.18 Liaising with solicitors re concerns re C307 690 33.20 Liaising and attending offices of external accountant 0 33.21 Investigating moneys paid to respondents' solicitors 302 33.22 Reviewing affidavits in proceedings 1842 33.23 Arranging for Gondon's compliance with its statutory obligations 4991 33.24 Seeking directions from Court in relation to scope of appointment 2112 33.25 Preparing and attending hearings on 21 and 23 December 2016 5596 33.26 Liaising with solicitors regarding subpoena 1633 34.1 Arranging for transfer of funds in accordance with Court's orders 1800 34.2 Obtaining advice re tax implications of sale of A206 and B206 2530 34.3 Liaising and instructing solicitors re withdrawal of caveats 358 Total 49071

[50]

Conclusion as to remuneration

Unsurprisingly, the two analyses produce very similar results. As I have indicated, the analysis by Tasks provides greater fidelity. Bearing in mind that the Receiver bears the onus of proving the reasonableness of the work done and his remuneration for it, I am not persuaded that their remuneration should exceed $10,000 (plus GST) for CFAM, and $30,000 (plus GST) for Gondon.
Total remuneration of $40,000 for the two administrations represents close to $3,000 per day for the 14 business days for which the appointment was in place.

[51]

Expenses

As has been noted, in addition to his remuneration claim, the Receiver also sought approval of his expenses, being legal costs incurred by him to his solicitors Piper Alderman, amounting to $73,904.75, and on 17 October 2017 filed an application for assessment of costs as between client and law practice; he now seeks an order that he be entitled to payment of his expenses as so assessed. The total costs and disbursements rendered by Piper Alderman were $78,340.71 (GST inclusive); the Receiver seeks reimbursement for only $73,904.75 pursuant to an agreement with the plaintiff.
Receivers are entitled to be indemnified by the estate in respect of expenses properly incurred in the discharge of their duties. [56] The right of a court-appointed receiver to indemnity in respect of out-of-pocket expenses depends on the general law relating to a trustee's right of indemnity, and for that reason such expenses (for which prior approval is not required), are distinct from remuneration, which a receiver cannot draw without the approval of the Court. [57] In respect of disbursements, as Ferris J explained (in the context of liquidators, but the principles are the same for receivers) in Mirror Group Newspapers plc v Maxwell (No 2), [58] there are two questions. First, the liquidators (or receivers) must decide to what extent they are bound to pay the liabilities they have incurred, and to the extent that they accept that they are bound to pay they must do so, as they are personally liable. The second question is whether and to what extent they are entitled to recoup what they have paid from the estate. [59] Recognition that there are thus two separate questions reflects that what may properly be recoverable by the solicitors from the Receiver does not necessarily correspond with what the Receiver is entitled to be indemnified in respect of by the estate; that is why the proposal to refer the legal costs for assessment, and to authorise payment by the Receiver of the costs as assessed, is not a complete solution: the solicitors may be entitled as against the Receiver to costs for work which they were instructed to do, but which as between the Receiver and the companies were not properly incurred.
The second question ordinarily arises upon the taking of accounts, or upon a misfeasance summons. [60] However, in some circumstances liquidators or receivers may seek a direction in the Court's advisory jurisdiction that they would be justified in paying certain disbursements, and in that way obtain prior protection in respect of such disbursements. [61] The Receiver's application in this case is of that character, and in circumstances where the Receiver has been discharged and a Court order is necessary to facilitate reimbursement of his expenses, and the nature and quantum of the disbursements are controversial, it is appropriate for him to invoke the advisory jurisdiction.

[52]

Conclusion and orders

My conclusions may be summarised as follows:
The work for which the Receiver claims remuneration was in large part not reasonably undertaken in the course of a short-term interim appointment as receiver and manager for the purpose of securing assets. In particular, work in relation to investigation of pre-appointment transactions, the substantive litigation and the directions application, and the ABMG lockout, was not justified; and the amount claimed in respect of ascertaining the status of sales, and what the Receiver called "other necessary work" and "mandatory work" was excessive. Bearing in mind that the Receiver bears the onus of proving the reasonableness of the work done and his remuneration for it, I am not persuaded that his remuneration should exceed $10,000 (plus GST) for CFAM, and $30,000 (plus GST) for Gondon. That represents $2,850 per day for the 14 business days that the appointment was in place.
The Receiver was not justified in instructing solicitors to act for him, except in relation to the lodgement and withdrawal of the caveat, and the contracts for sale of two units. His lawyers' reasonable costs and disbursements for that work, for which the Receiver is entitled to be indemnified, do not exceed $6,397.65 (plus GST).
The Court orders that: 1. the remuneration of the applicant as receiver of CFAM be fixed at $11,000 (GST inclusive); 2. the remuneration of the applicant as receiver of Gondon be fixed at $33,000 (GST inclusive); 3. the applicant would be justified in reimbursing himself in respect of expenses (being the legal costs paid or payable by him in his capacity as Receiver of Gondon to his solicitors Piper Alderman) to the extent of $7,037.42 (GST inclusive); and 4. the applicant would be justified in drawing the amount of $51,037.42 from the money remaining in his trust account to the credit of the respondents.
I will hear the parties on the question of costs of the application, pending which it would be premature to determine the destination of the balance remaining in the Receiver's trust account. If there is any issue about the moneys retained by Marsdens on their undertaking, that can be addressed in connection with the question of costs, and liberty to apply in that respect, and in respect of any other consequential matter, is reserved.

[53]

Endnotes

The background to the substantive proceedings is set out more fully in In the matter of Gondon Five Pty Ltd [2016] NSWSC 1401; see also In the matter of Gondon Five Pty Ltd [2016] NSWSC 1584.
In the matter of Gondon Five Pty Ltd [2016] NSWSC 1401.
In the matter of Gondon Five Pty Ltd [2016] NSWSC 1401 at [43]-[44].
In the matter of Gondon Five Pty Ltd [2016] NSWSC 1401 at [40].
In the manner contemplated in In the matter of Sakr Nominees Pty Limited [2017] NSWSC 668 at [18].
Re Universal Distributing Co Ltd (in liq) (1933) 48 CLR 171; [1933] HCA 2; In the matter of AAA Financial Intelligence Ltd (In liq) [2014] NSWSC 1004 at [18].
(2004) 184 FLR 44; [2004] NSWSC 751.
Wenkart v Pantzer (2005) 223 ALR 385; [2005] FCA 1572 (Branson J); Mohamed v Hurstville Tower Medical Clinic Pty Ltd (in liquidation) [2006] NSWSC 4 at [9] (Barrett J), Anderson Group, Re (2002) 20 ACLC 1607; [2002] NSWSC 764 at [12] (Barrett J); Sanderson, as liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr (2017) 93 NSWLR 459; (2017) 343 ALR 524; [2017] NSWCA 38 (Bathurst CJ, Beasley P, Gleeson JA, Barrett AJA, Beach AJA); In the matter of Banksia Securities Ltd (in liq) (receivers and managers appointed) [2017] NSWSC 540 at [37]-[46] (Gleeson JA).
I considered the remuneration of receivers, and in particular interim receivers, in In the matter of Say Enterprises Pty Ltd [2018] NSWSC 396 at [6], which was decided after argument concluded in this case, on which this summary is based.
Templeton v Australian Securities and Investments Commission (2015) 108 ACSR 545; [2015] FCAFC 137 (Besanko, Middleton and Beach JJ); In the matter of Wine National Pty Limited [2016] NSWSC 4 at [15] (Black J); In the matter of Banksia Securities Limited (in liq) (receivers and managers appointed) [2017] NSWSC 540 at [42] (Gleeson JA).
Templeton v Australian Securities and Investments Commission (2015) 108 ACSR 545; (2015) FCAFC 137 at [31] (Besanko, Middleton and Beach JJ); Sanderson, as liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr (2017) 93 NSWLR 459; (2017) 343 ALR 524; [2017] NSWCA 38 at [55] (Bathurst CJ).
Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96 at 100-101 (Kennedy and Ipp JJ); Re Timeshare Resort Club Ltd (in liq) (2010) 187 FCR 13; [2010] FCA 673 at [36]-[37] (Barker J); In the matter of Wine National Pty Ltd [2016] NSWSC 4 at [12] (Black J).

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (53 paragraphs)

Cases Cited (51)

Cited By (12)