The question of deduction
191 Let me turn to the second point raised by ASIC which concerns the extent to which the various liquidators can look to the funds held on constructive trust by the companies to satisfy their claims for remuneration and costs concerning general liquidation matters.
192 Now in one sense, ASIC's concern evaporates if I decide, as I have, that the relevant non-statutory funds are the subject of a remedial constructive trust rather than an institutional constructive trust. If the former, then in my view it should only be imposed and speak now at the earliest. So if that is the case, then any remedial constructive trust takes subject to the liquidators' entitlement to remuneration and costs concerning general liquidation matters. And if there is any doubt as to this, I can declare this to be so.
193 But let me assume that the non-statutory funds are held on an institutional constructive trust. ASIC says that in that eventuality the liquidators are not entitled to have recourse to the assets the subject of such a trust in relation to remuneration and costs concerning general liquidation matters. But I would disagree with such a proposition in any event. Let me begin with some general principles.
194 The principles giving rise to a liquidator's entitlement to remuneration and costs from funds held on trust by a company in liquidation were summarised by Brereton J in In the matter of AAA Financial Intelligence Ltd (in liq) [2014] NSWSC 1004 at [13]:
(1) Where the company is trustee of a trading trust and has no other activities, the liquidators are entitled to be paid their costs and expenses, whether for administering the trust assets or for "general liquidation work", out of the trust assets.
(2) Where the company does not act solely as trustee, costs and expenses referable to work done in relation to trust assets which may nonetheless be considered as having been done for the purpose of winding up the company ought ordinarily be borne primarily by the (non-trust) property of the company, to the extent that the assets permit.
(3) At least where the non-trust assets do not permit that course, and perhaps even when they do, a liquidator is entitled to be indemnified out of trust assets for his costs and expenses, but only to the extent that they are referable to administering the trust assets. This is pursuant to the court's equitable jurisdiction to allow a trustee remuneration costs and expenses out of trust assets, which extends to a person such as a liquidator who is, for practical purposes, controlling a trustee.
(4) In principle, where the liquidator does work which would entitle him both to remuneration as liquidator by the company, and recovery from the trust assets, there are two funds liable and there should be contribution between them. However, where there are no assets of the company available, it is unnecessary to consider the question of contribution. If a liquidator has done work which is attributable equally to the winding up of the company and the administration of trust assets, and there are no assets of the company at all to meet his expenses in doing so, the expenses are payable solely from the trust assets…
(citations omitted)
195 An alternate basis the liquidators could seek to rely on to establish their entitlement to be paid their remuneration would invoke the principles outlined in the decisions of In re Universal Distributing Company Ltd (in liq) (1933) 48 CLR 171 at 174 per Dixon J.
196 Now liquidators have been able to deduct their general liquidation costs from trust moneys in cases such as the following.
197 In Australian Securities and Investments Commission v Rowena Nominees Pty Ltd (2003) 45 ACSR 424, all liquidation costs could be charged against the trust assets. Now the relevant company did not act solely as a trustee, and the trust creditors had as Pullin J described (at [94]) "personal claims against [the company] … as well as claims as beneficiaries to the trust property. That being so, the general administration associated with winding up [the company] will concern creditors, and this includes trust creditors". I note that in the present context former clients will have unsecured claims against AGM, OT and Ozifin to the extent that amounts received in accordance with the statutory trust claims and other trust claims do not satisfy their claims.
198 Further, in Re Sutherland; French Caledonia Travel Services Pty Ltd (in liq) (2003) 59 NSWLR 361 Campbell J said (at [212]):
…if a liquidator has done work which is attributable equally to the winding up of the company, and the administration of trust assets, and there are no assets of the company at all to meet his expenses in doing so, the expenses are payable solely from the trust assets.
199 In the case of In the matter of North Food Catering Pty Ltd [2014] NSWSC 77, Brereton J found that the liquidators were entitled to be paid their remuneration, whether for administering the trust assets or for general liquidation work, out of the trust assets, since the company had no assets other than trust assets.
200 In the case of In the matter of Primespace Property Investment Ltd (in liq) [2016] NSWSC 1821, Black J allowed general liquidation remuneration and costs to be paid from trust funds where he was satisfied (at [18]) that:
…the work done by [the liquidators] in both the administration and the liquidation cannot be funded from the assets presently available to [the company] in its own right and that their remuneration for that work is properly paid out of trust assets.
201 In reaching that conclusion Black J applied the decisions in North Food and French Caledonia. But the court would have equally had the discretionary power to make an order approving the liquidators' remuneration on the basis of In re Berkeley Applegate (Investment Consultants) Ltd (in liq); Harris v Conway [1989] 1 Ch 32.
202 Let me at this point say something about Kelly, in the matter of Halifax Investment Services Pty Ltd (in liq) (No 6) [2019] FCA 2111. Now by virtue of the operation of the OT and Ozifin CAR agreements, in substance, AGM's principal activities related to managing client funds. The liquidators accept that to a certain degree, AGM may be viewed as not acting solely as trustee but also carried on business in its own right, namely, as an issuer of financial products, provider of financial services and counterparty to client trades. However, in Halifax No 6 there was a focus on whether the company acted as a trustee to a significant extent in considering whether general liquidation costs could be paid from trust funds. Further, the following description of Gleeson J (at [32]) applies to AGM:
… the activities of Halifax AU were all concerned with the administration of client moneys and the management of client moneys, that is trades placed by investors and interest accrued on funds held on trust for investors of Halifax AU and Halifax NZ….
203 As occurred in Halifax No 6, in the present context there are no separately identifiable company assets from which the remuneration of the liquidators might be paid. So the liquidators are justified in having recourse to trust funds for general liquidation costs.
204 Now there are authorities which have taken a more restrictive view in considering whether general liquidation remuneration and costs are appropriately applied to trust funds if the company in liquidation acted in a capacity other than as trustee.
205 In 13 Coromandel Place Pty Ltd v CL Custodians Pty Ltd (in liq) (1999) 30 ACSR 377, Finkelstein J at 385 stated:
The position is a little more involved as regards work done and expenses incurred in what may be described as general liquidation matters. If that work is unrelated to the beneficiaries and their claims it is difficult to see how the cost could be charged against their assets. In the case of a company that has carried on the business of trustee it might be that much of the work involved in the liquidation is chargeable against trust assets if it can be shown that the liquidation is necessary for the proper administration of the trust. But it is unlikely that this will be so where the company did not act solely as trustee or at least did not act in that capacity to a significant extent. In that event, the liquidator will be required to estimate those of his costs that are attributable to the administration of trust property and only those costs will be charged against the trust assets.
206 In Staatz v Berry (2019) 138 ACSR 231 the relevant corporate entity acted in the capacity of a trustee of a unit trust (later found to be ineffective and illegal) and subsequently acted in the capacity of a bare constructive trustee of property. Derrington J said (at [210]):
Here, no global order can be made allowing the liquidator to recover all of the costs of the administration and of the winding up from the assets of the trust. An apportionment will necessarily be required to be undertaken to separate the costs of the administration and winding up relating to the trust from other costs. As the Company's activities extended beyond its conduct as a trustee it is inappropriate that the trust assets bear the burden of the whole of the costs of winding up…
207 However, his Honour went on to allow that (at [211]) "the administration of the trust was a part of the winding up of the Company such that a portion of the cost of the general liquidation matters should also be met out of the trust assets as identified by Finkelstein J [in 13 Coromandel]".
208 In Park v Whyte (No 4) [2019] 2 Qd R 412 the relevant corporate entity acted in dual capacities as the responsible entity of four managed investment schemes (giving rise to trustee obligations under s 601FC of the Act) and trustee of a private trust. Jackson J said (at [34]):
My reasoning in the First Remuneration Decision does not support any general right of a liquidator to reimbursement from trust property for remuneration for work necessary for the winding up of the company trustee, where that work is not carried out in relation to the trust or relevant trusts, if more than one. I accepted the formulation in Re Independent Contractor Services (Aust) Pty Ltd (in liq) (No. 2), that where a company is the trustee of a trading trust and has no other activities, the liquidators are entitled to be paid their costs and expenses for general liquidation work out of the trust assets. But I also referred to 13 Coromandel Place Pty Ltd v CL Custodians Pty Ltd (in liq), where it was made clear that where a trustee does not act solely as trustee, the liquidator will be required to estimate those of the costs that are attributable to the administration of trust property and only those costs will be charged against the trust assets…
209 His Honour went on to state (at [36]) that the liquidator in that case was not entitled to recover remuneration for non-trust remuneration on the Berkeley Applegate principle.
210 But neither Staatz or Park are authority for any principle that liquidators cannot recover general liquidation costs from trust funds in an appropriate case. Both are an application of the broad discretionary power to the circumstances of the relevant case. The question is really one of discretion with each case turning on its own facts.
211 Now ASIC says that the correct principles in relation to the drawing of a liquidator's remuneration and costs from funds held by the company on trust are those set out in 13 Coromandel. Finkelstein J there distinguished between general liquidation activities, on the one hand, and activities comprising identifying or attempting to identify trust assets, recovering or attempting to recover trust assets, realising or attempting to realise trust assets, protecting or attempting to protect trust assets and distributing trust assets to the persons beneficially entitled to them, on the other hand. The liquidator is entitled to be indemnified out of trust assets for the costs and expenses of the latter. But as to the former, his Honour set out the position as he saw it in a passage (at 385) that I have already set out.
212 Moreover, ASIC boldly says that to the extent that cases such as Re G B Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674 at 685 to 690 per McLelland J and Re Greater West Insurance Brokers Pty Ltd (2001) 39 ACSR 301 at [14] to [23] per Young J, are contrary to these principles, they ought not be followed.
213 Further, as to Rowena Nominees, ASIC says that if the proposition advanced in that case suggests that a liquidator is able to recover from trust assets the expense of doing work that could not be fairly categorised as administering the trust assets, it is wrong.
214 Further, ASIC says that the mere fact that beneficiaries of the trust have, in addition to their rights to proper administration of the trust property, personal claims against the trustee is no reason to depart from the principle stated in 13 Coromandel, French Caledonia and Park.
215 Further, ASIC points out that it cannot be said that any of the companies solely carried on the business of trustee. Each company carried on business in their own right for the personal benefit of their shareholders and controllers. The companies promoted and advanced an illegal and immoral scheme that was intended to and did generate significant private profit at the expense of Australian investors. ASIC says that the fact that all of the remaining profits left in the hands of the companies when the scheme was brought to an end ought be treated as held on trust for those investors cannot be used in reverse to contend that the companies acted only as trustees.
216 ASIC says that the end result is that the entitlement of the liquidators of each of the companies to have recourse to assets that ought be treated as held on constructive trust is governed by the principles in 13 Coromandel. Those principles permit a wide range of costs and expenses to be deducted from the trust assets. Costs may be deducted for any step necessary or reasonably appropriate for the purposes of identifying, recovering, realising, protecting or distributing trust assets to the persons beneficially entitled to them. But ASIC says that as a matter of principle, costs and expenses incurred for activities that do not constitute any of those activities cannot be deducted from the assets of persons beneficially entitled to them.
217 ASIC also relied on Re application of Sutherland (2004) 50 ACSR 297 at [11] to [13], Shannon v JMA Accounting Pty Ltd [2005] QSC 240 at [22], Georges, in the matter of Sonray Capital Markets Pty Ltd (in liq) [2010] FCA 1371 at [6], AAA Financial at [13], Freelance Global Ltd v Bensted [2016] VSC 181 at [67] and [68], and In the matter of BBY Limited (rec & mgs apptd) (in liq) (No 3) [2018] NSWSC 1718 at [95].
218 In summary, ASIC says that the funds having been impressed with an institutional constructive trust from the date of the relevant events, the Court's discretion to allow the liquidators to recover remuneration, costs and expenses applies only to work that has been done in the interests of beneficiaries.
219 I am not convinced as to ASIC's position even assuming for the sake of argument ASIC's institutional constructive trust characterisation.
220 Generally, whether general liquidation costs can be recovered from trust assets is a matter for the Court to determine, and relevant factors include the extent to which the relevant company acted in its capacity as trustee of a trust and whether there are separately identifiable company assets from which the remuneration of the liquidators might be paid.
221 Now ASIC says that it cannot be said that any of the companies solely carried on the business of trustee. It says that on the contrary, each company carried on business in its own right for the personal benefit of its shareholders and controllers. But that assertion does not engage with Halifax No 6, which focuses on whether the company acted as a trustee to a very significant extent, in considering whether general liquidation costs could be paid from trust funds. Halifax No 6 is analogous to the liquidators' claims in the context before me.
222 Further, in my view ASIC reads too much into 13 Coromandel and the passage that I have set out (at 385) in relation to the circumstances before me.
223 First, the work done by the liquidators concerning general liquidation matters is not completely unrelated to the beneficiaries and their claims for reasons that I will explain later.
224 Second, Finkelstein J used the phraseology "it is difficult to see how", rather than being definitive.
225 Third, in the scenario before me, there are no other non-trust assets to which the liquidators could have recourse if all the assets are either statutory trust funds or, on ASIC's hypothesis, institutional constructive trust funds. I am far removed from a situation where there are other non-trust assets to which the liquidators could have recourse to obtain or recoup their general liquidation remuneration and expenses, if ASIC is correct on its institutional constructive trust point.
226 Moreover, I am not convinced that the other authorities cited by ASIC take it that far.
227 First, Shannon at [22] cites Re GB Nathan where McLelland J stated (at 689) that where there was inadequate non-trust property available for work performed in winding up the affairs of the company it would normally be appropriate to make allowance out of trust assets.
228 Second, in the passage relied on by ASIC from Brisconnections Management Company Ltd v Dalewon Pty Ltd (in liq) (2010) 79 ACSR 530 at [11] to [13], McMurdo J was rationalising the use of the power by describing a nexus between liquidation work and the benefit of the beneficiaries. That is not inconsistent with the existence of the power upon which the liquidators rely in the present case and the asserted relevant nexus.
229 Third, Sonray Capital at [6] is no more than an example of the payment of remuneration for trust-related work out of trust assets. Moreover, Re application of Sutherland at [11] to [13] hardly tells against the liquidators' position in the present case, given the breadth of what was described as the inherent equitable jurisdiction.
230 Fourth, in AAA Financial, the statement by Brereton J at [13(3)] confining payment out of trust assets "only to the extent that [amounts] are referable to administering the trust assets" must be seen in context. Further, that statement relied on 13 Coromandel at 385 and French Caledonia at [211] to [213], which I do not read as rigidly as ASIC would have it. Of course, if these are to be read so rigidly, then I would treat them as outliers.
231 Fifth, Freelance Global Ltd at [67] and [68] is merely a non-exhaustive description of factors that usually support the exercise of the discretion to allow remuneration to be paid from trust assets.
232 Sixth, the passage from BBY Limited (No 3) at [95] must be read in its context. In the circumstances of that case it was considered not to be appropriate to treat all the costs of the liquidation as being costs of administering the trusts and payable out of trust assets. But it does not exclude the possibility that there are cases where that is appropriate.
233 Let me now widen the scope and consider a perspective that ASIC sought to diminish if not dismiss.
234 The Court has an expansive equitable jurisdiction to allow a liquidator's remuneration to be paid out of assets of a trust; see In the matter of M & J Super Fund Pty Limited (in liq) [2021] NSWSC 279 at [13] to [17] per Williams J.
235 As stated by Brereton J in North Food (at [9]):
(1) The court has an inherent equitable jurisdiction to allow a trustee remuneration, costs and expenses out of trust assets, and this extends to a person such as a liquidator who is, for practical purposes, controlling a trustee.
(2) The court may decline to exercise that jurisdiction where the company does not solely act as trustee and has sufficient beneficial assets to meet the liquidators' remuneration costs and expenses and where the work done by the liquidator in relation to trust assets may properly be treated as done for the purposes of winding up the company affairs. Thus, generally where a company has assets which are not held on trust, the liquidators' costs should usually fall on its non-trust assets.
(3) Where the company has both trust assets and assets held beneficially by the company, the costs can be apportioned such that the remuneration attributable to the statutory liquidation work would fall on the assets beneficially owned by the company, whereas that which related to administering the trust property might fall on the trust assets.
(citations omitted)
236 Now ASIC says that I should not allow general liquidation remuneration to be paid from any trust funds, unless that remuneration relates solely to work done in the interests of beneficiaries. But the Court has an independent equitable power to allow non-trust remuneration to be paid out of trust assets in appropriate cases, which none of the authorities cited by ASIC would deny. And it is not the case that the ability of the liquidators to have recourse to trust assets for the payment of their costs, expenses and remuneration is governed solely by the principles discussed in 13 Coromandel.
237 Now in the present case the work conducted by the liquidators is divisible into categories of work relating to the ASIC proceedings, work relating to this proceeding, work relating to locating and reconstructing the books and records, work relating to the conduct of investigations directed to the identification of assets held and not held on statutory trust, work relating to the investigation and pursuit of recovery action against third parties who held, or potentially held, funds belonging to the relevant company, work relating to reporting to creditors and creditors' meetings, work relating to the adjudication of creditors' claims including the very substantial number of client creditors who are likely to be beneficiaries of any constructive trust, and other general liquidation work.
238 Clearly, much of the work done by the liquidators falls squarely within the principle recognised in Universal Distributing, save perhaps for work relating to reporting to creditors and creditors' meetings and other general liquidation work.
239 Moreover, in Berkeley Applegate, orders were made for the liquidators' costs and remuneration to be paid out of trust property given that the work performed by the liquidator was of substantial benefit to the trust property and to the investors. Absent the liquidator performing the work, this work would have needed to be completed by the investors or by a court appointed receiver, whose fees would have ultimately been borne by the trust property in any event.
240 Indeed, the principles in Berkeley Applegate go beyond those recognised in Universal Distributing. But there is a degree of overlap between the categories of work justifiable by the Berkeley Applegate principle and the Universal Distributing salvage principle, at least in the present case. The categories of work identified above each fall within the Berkeley Applegate principle, save perhaps for work relating to reporting to creditors and creditors' meetings and other general liquidation work.
241 But importantly, if delivering a benefit to the trust beneficiaries is to be used as the test by which entitlement to use trust funds to pay liquidator's remuneration, costs and expenses is ascertained in the case of the liquidation of a corporate trustee, then it is difficult to see why remuneration, costs and expenses attributable to general liquidation work do not meet that test in the present case. A general liquidation of each relevant company was the quickest and most cost efficient way to crystallise returns to beneficiaries, whether statutory trust beneficiaries or other trust beneficiaries of whatever description.
242 Moreover, in the present case the persons who will take the benefit of the general liquidation work will be the beneficiaries of the constructive trust sought by ASIC. They will take the benefit of a concerted long-term effort on the part of the liquidators to locate, recover and manage trust assets as well as to identify the claims and claimants on those assets. Work performed by the liquidators in the adjudication of creditor claims is, as a matter of practical reality, work done in ascertaining the respective entitlements that the beneficiaries of the constructive trust will have. Work done by the liquidators in reporting to creditors is, as a matter of practical reality, work done in reporting to these beneficiaries. All of this work has advantaged the trust estate. Accordingly, the liquidators' remuneration and costs and expenses incurred in relation to all of the categories of work identified ought to be payable out of assets held on trust.
243 More generally, the general liquidation work was undertaken prior to any determination of client entitlements, and necessarily involved a consideration of issues relating to the statutory trust claims and other trust claims. Consequently, although not directly related to the beneficiaries' interest, it can be seen as broadly related to the trusts.
244 Further, there is both a public interest in insolvent companies being properly administered, which must extend to insolvent trustee companies, and a plain benefit to the beneficiaries / clients in having the affairs of the relevant entities properly investigated and administered by the liquidators.
245 Now ASIC suggests that the three liquidations were unnecessary to deal with and administer the trust assets and that the appointment of receivers could have sufficed. But in my view ASIC's position is problematic.
246 First, its present position goes against the stance that ASIC has previously taken in this litigation concerning the form and necessity of the external administrations.
247 Second, the so-called trust beneficiaries benefited significantly from the appointment of the liquidators to get in the relevant funds. They also benefited from the broader work involved concerning the proper administration of the companies. There was a non-pecuniary benefit to the so called trust beneficiaries of having this general liquidation work done, particularly given the nature of the scheme(s) and money flows involved. Indeed, any receiver may have had to do most of the broader work as well.
248 More generally, the liquidations were necessary for the benefit of these trusts, howsoever described. And as part of these liquidations, it was necessary to incur general liquidation expenses. So, these necessary expenses were a consequence of the broader benefit of liquidations to the beneficiaries.
249 Let me turn to two final matters.
250 First, as I have indicated, where a company has no assets other than trust assets, as would be the case if an institutional constructive trust were to be declared over all funds belonging to the company other than statutory trust funds, then a liquidator is nevertheless entitled to be paid their remuneration whether for administering the trust assets or for general liquidation work out of the trust assets; see North Food and AAA Financial.
251 In North Food, Brereton J said (at [17]):
[t]hose cases appear to me to establish clearly enough that in the present case the liquidators are entitled to be paid their remuneration, whether for administering the trust assets or for general liquidation work, out of the trust assets, since the company has no assets other than trust assets.
252 See also In re MF Global Limited (in liq) (No 2) [2012] NSWSC 1426 at [55] per Black J; In the matter of JML Property Services Pty Ltd (in liq) [2018] NSWSC 1069 at [10] per Black J; In the matter of Houben Marine Pty Ltd (in liq) [2018] NSWSC 745 at [14] to [17] per Gleeson JA; In the matter of Aberdeen All Farm Pty Ltd (in liq) [2020] NSWSC 770 at [19] and [20] per Black J; In the matter of Glenvine Pty Ltd (in liq) [2020] NSWSC 866 at [52] to [57], [120] and [121] per Black J.
253 Accordingly, where, as here, there are no nontrust assets from which remuneration, costs, and expenses for general liquidation work can be paid, then the trust assets may be used in order to pay these amounts, even if the constructive trusts were to be characterised as institutional.
254 Second, there is confusion in ASIC's position concerning a lack of authorisation which was pointed out by Mr Stewart Maiden KC for AGM's liquidators.
255 In my view, there would be no unauthorised use of trust moneys if the various liquidators were to deduct general liquidation expenses and costs from the so called trust moneys whatever the characterisation of the constructive trusts.
256 Now no doubt where a liquidator is seeking to invoke a trustee's right of indemnity, there are certain limitations on what can be sought to be recouped or re-imbursed from the trust assets. But here, the various liquidators are not relying upon any rights of indemnity to recoup general liquidation costs and expenses. Rather they are relying upon the Court's powers and orders, if made, to so authorise. If the liquidators are so authorised by me, then there cannot be any unauthorised use of trust property.
257 For all of these reasons, even if ASIC was correct on its institutional constructive trust argument, the liquidators should be permitted to obtain or recoup their general liquidation remuneration, expenses and costs from the trust assets.
258 Let me then turn specifically to the position of AGM.
259 First, the liquidators seek payment of their remuneration and costs from funds that are subject to the statutory trust claims, not the other trust claims. So much is clear from the distribution proposal and the directions sought by the liquidators.
260 Second, the liquidators seek to recover from the statutory trust funds in the OT client account remuneration and costs apportioned to that fund. Further, to the extent that general liquidation costs are sought to be applied to the OT client account, the liquidator of OT does not oppose the proposed allocation.
261 Third, the liquidators have approached me for directions and filed detailed material outlining their remuneration and expenses and the proposed basis for payment of those amounts. As I have already indicated, the liquidators have not drawn any remuneration or paid any legal costs since their appointment.
262 Fourth, ASIC has identified no specific criticisms of the amounts claimed by the liquidators, notwithstanding the liquidators' detailed affidavits outlining their claims. In my view, the material filed by the liquidators is more than sufficient for me to make an assessment of the reasonableness of the amounts now claimed. The amounts claimed by the AGM liquidators are fair and reasonable.
263 In all of the circumstances I will approve the remuneration and costs sought by the liquidators of AGM.
264 Let me turn to the position of Ozifin. The liquidators of Ozifin wish to have me approve over $4.1 million of remuneration and expenses from out of $6.9 million of clients' property.
265 I note that the creditors of Ozifin have approved $2,636,729.75 in remuneration as at 4 June 2021 in respect of the liquidation as a whole, most of which has already been drawn from the $4,470,980.95 of funds held by the Ozifin liquidators that ASIC contends ought be treated as impressed with a constructive trust.
266 ASIC says that the appropriate quantum of costs and remuneration should be a matter that is referred to a Registrar.
267 ASIC also says that in some respects, the remuneration and costs incurred by the liquidators relate to contentions that Ozifin advanced that were adverse to the interests of the beneficiaries of the constructive trust. But I do not consider this to be a complete characterisation.
268 The role taken by the liquidators in the ASIC proceedings against Ozifin was undertaken in circumstances where they were appointed as liquidators of Ozifin on 29 September 2019, where the trial of those proceedings was listed to start on 1 October 2019. The liquidators appeared before me by counsel on that date, did not oppose the application for leave to proceed against Ozifin as a company in liquidation, did not call evidence, and directed limited submissions as to the extent to which the Court might properly make findings in respect of the conduct of Ozifin which might have an effect as between various classes of creditors of Ozifin as to whether or not those creditors might ultimately be found to be trust creditors. Their submissions were principally addressed to the question of whether the Court should make findings of wrongful conduct in respect of investor clients of Ozifin generally including by reference to a system of conduct, or only in respect of those clients who were the subject of specific evidence adduced at the trial. This was not making submissions adverse to the interests of the beneficiaries. The liquidators were assisting the Court as a proper contradictor to determine the appropriate extent of the findings that I should make regarding investor client rights against Ozifin, which in turn was relevant to the question of the performance of the liquidators' subsequent functions of identifying the extent to which a client of Ozifin was a creditor in the liquidation of Ozifin, and further the extent to which such clients might ultimately be found to be beneficiaries of a constructive trust, that trust being derived from findings as to the conduct of Ozifin towards them, and whether or not the liquidators would be required to undertake those processes themselves or seek directions from me as to such matters.
269 The liquidators, through their counsel, provided submissions in circumstances where ASIC was taking the counter position. Their submissions, even though not accepted, resulted in my determination of the identity of those clients of Ozifin who could properly now claim an interest as beneficiaries of the relevant constructive trust. There is nothing in ASIC's point.
270 In summary, I will approve the Ozifin liquidators' remuneration, costs and expenses incurred in relation to the categories of work identified. The material filed adequately justifies the quantum and there is no need for a separate reference. ASIC has not pointed to any matter raising a doubt in the evidence before me justifying the quantum. Moreover, any disparity in the amounts sought as between the three liquidations is readily explained in the material before me given the different work, investigations and complexity involved.
271 Let me say something about the position of OT.
272 Generally, the liquidator of OT should have his reasonable remuneration, fees and disbursements authorised to be paid from and allocated against the funds in his possession or to be transferred to him by the liquidators of AGM as set out in the evidence before me.
273 And I will not require the remuneration and expenses of the liquidator to be separately assessed. There is no basis for doing so. ASIC has not pointed to any matter concerning any deficiencies in the evidence concerning the quantum sought.
274 Finally, as to any allocation questions, there are two dimensions to consider. For a particular set of liquidators, namely, for each of AGM, Ozifin and OT, each set is best placed to determine their own particular allocation questions. But as between sets of liquidators, they are best placed to consider and agree upon the appropriate allocations inter se. Certainly, I am content with what is proposed. But if further directions are necessary, these can be given.