Mirror Group Newspapers plc v Maxwell

1. Mr Andrew Ellis and Ms Kylie Coniglio each be given leave to intervene in the proceeding as an interested and affected party.
2. The receivers' and liquidators' remuneration is fixed in the sum of $149,437.75 and is to be paid at the discretion of the liquidators/receivers.
3. The receivers' and liquidators' future remuneration is capped in the sum of $30,538.75.
4. The applicants' costs of the application be their costs in the winding-up and the receivership.
5. Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GREENWOOD J: 1 On 9 February 2018, Mr Samuel Freeman and Mr Michael Slaven, were appointed as joint and several liquidators of a company called Blue Oasis Holdings Pty Ltd (in liquidation) (the "company"). The company, prior to its liquidation, operated a business of a modular home transport and logistics in Western Australia in its capacity as the trustee of the Ellis Coniglio Family Trust. 2 On 8 March 2018, this Court (the "order") ordered that Mr Samuel Freeman and Mr Michael Slaven as joint and several liquidators of the company, be appointed as receivers without security, over the property, assets and undertaking of the Ellis Coniglio Family Trust. Mr Samuel Freeman and Mr Michael Slaven in their capacity as liquidators of the company and receivers pursuant to the order are referred to in these reasons as the "applicant". 3 On 13 August 2018, the applicant applied to the Court for an order that the Court fix the remuneration of the liquidators and receivers in the sum of $149,437.75, and cap future remuneration at $30,538.75 pursuant to s 425 of the Corporations Act 2001 (Cth) (the Act) and/or r 14.24 of the Federal Court Rules 2011. That application was listed for 13 September 2018. On 12 September 2018, two former directors of the company, Mr Andrew Ellis and Ms Kylie Coniglio (the "former directors") filed an interlocutory application each seeking leave to intervene in the proceeding as an interested and affected party. Although it was not explicit in the former directors' application itself, it was clear enough that the proposed interveners sought to oppose the quantum of the remuneration sought by the applicant. 4 The hearing of both interlocutory applications was adjourned to 27 September 2018. 5 In support of the applicant's application, Mr Slaven filed an affidavit dated 2 August 2018. In that affidavit, Mr Slaven deposed the following: 5. Since my appointment as receiver, my staff and I have carried out various investigations and tasks including but not limited to: a. Reviewing the books and records maintained by the Company; b. Reviewing and identifying the debtors and creditors; c. Invoicing certain work in progress which existed as at the date of my appointment; d. Holding various discussions with the directors of the Company; e. Holding conversations with former employees in respect to their outstanding employee entitlements; f. Conducting motor vehicle and real property searches in the name of the Company and Trust; g. Engaging an auctioneer and valuer to value and secure certain pieces of plant and equipment; h. Determining the validity of registered security interests registered over the Company and Trust; i. Reviewing the asset position of the Trust; j. Recovery proceedings in relation to debtors of the Trust and Company. 6 In carrying out the tasks in para 5 above, Mr Slaven and his staff have recorded the time that they have spent on each and every task on timesheets kept by Ernst & Young. Mr Slaven deposes that he has reviewed the time sheets as they pertain to the liquidation of the company and the receivership of the Trust, and that all the items and amounts listed were "necessary and reasonable in all of the circumstances and the amounts have been correctly incurred": para 8. Those timesheets are annexed to that affidavit as "MS-1". 7 Mr Slaven has deposed that the current fees incurred in the liquidation by liquidators from the period of 9 February 2018 to 27 June 2018 are $136,270.75, inclusive of GST. The current fees incurred in the receivership for the same period are $13,167.00, inclusive of GST. Mr Slaven estimates that the fees required to complete the liquidation are $21,972.50, and to complete the receivership are $8,566.25. The applicant accordingly seeks an order that their remuneration is fixed in the sum of $149,437.75 and the future remuneration be capped at a sum of $30,538.75. 8 In support of the former directors' application, Ms Coniglio has filed an affidavit dated 12 September 2018. That affidavit objected to the quantum of the applicant's remuneration on the grounds that it was "exorbitant and unreasonable": para 5. That affidavit also agitated Ms Coniglio's other concerns regarding the making of the winding-up order, amongst other things. In so far as Ms Coniglio's concerns are relevant to the question of the reasonableness of the applicant's remuneration, those concerns are addressed below. 9 Section 425(1) of the Act provides that the Court may, by order, fix the amount to be paid by way of remuneration to any person who, under a power contained in an instrument, has been appointed as receiver of property of a corporation. The question of whether an order of a court appointing the receiver is itself "an instrument" for the purposes of s 425 was not put in issue. In any event, it is clear that s 425 is relevantly engaged for the purpose of fixing, that is, assessing and fixing the quantum of remuneration of a receiver appointed by the Court. The "instrument" is the "order": In the Matter of Say Enterprises Pty Ltd [2018] NSWSC 396 [6]; Templeton v Australian Securities and Investments Commission (2015) 108 ACSR 545 [28]; Re Wine National Pty Limited [2016] NSWSC 4 at [15]; Re Banksia Securities Limited [2017] NSWSC 540 at [41]-[42]). The power of this Court to fix a receiver's remuneration can be found in r 14.24 of the Federal Court Rules 2011. 10 The scope of the Court's power under s 425(1) is to be found in s 425(2). Section 425(8) of the Act provides: (8) In exercising its powers under this section, the Court must have regard to whether the remuneration is reasonable, taking into account any or all of the following matters: (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. [emphasis added] 11 The ultimate question is whether the amount of remuneration is "reasonable" (having regard to some or all of the statutory factors) which involves considering whether the work in respect of which remuneration is claimed was reasonably undertaken in the due course of the receivership and whether the amount claimed is a fair and reasonable reward for the value of the work done. 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 the tasks (In the Matter of Say Enterprises Pty Ltd [2018] NSWSC 396 [6]). 12 Where the remuneration is calculated on a time basis, the comments of Ferris J in Mirror Group Newspapers plc v Maxwell [1998] BCC 324 at 336-337 should be kept in mind: In my judgment it is vital to recognise three things in this field. First, time spent represents a measure not of the value of the service rendered but of the cost of rendering it. Remuneration should be fixed so as to reward value, not so as to indemnify against cost. Second, time spent is only one of a number of relevant factors. … The giving of proper weight to these factors is an essential part of the process of assessing the value, as distinct from the cost, of what has been done. Third, it follows from the first two points that, as the task is to assess value rather than cost, the tribunal which fixes remuneration needs to be supplied with full information on all the factors which I have mentioned. [emphasis added] 13 Other than the bare assertion in para 8 of Mr Slaven's affidavit of 2 August 2018 that all of the items listed in the time sheets were "necessary and reasonable in all of the circumstances", there is little in that affidavit to discharge the applicant's onus to satisfy the Court that the remuneration claimed was reasonable. With the exception of the criterion specified in s 425(8)(k), the affidavit of Mr Slaven dated 2 August 2018 did not deal, in any great detail, with the matters enumerated in subs 425(8)(a)-(l). A possible explanation of the brevity of the affidavit was that at the time the affidavit was prepared, there was no challenge from the former directors as to the appropriateness of the remuneration. Nevertheless, the onus must be discharged. As Ferris J stated in Mirror Group Newspapers plc v Maxwell [1998] BCC 324 at 334: Office holders must expect to give full particulars in order to justify the amount of any claim for remuneration. If they seek to be remunerated upon, or partly upon the basis of time spent in the performance of their duties they must do significantly more than list the total number of hours spent by them or other fee-earning members of their staff and multiply this total by a sum claimed to be the charging rate of the individual whose time was spent. [emphasis added] 14 The Court cannot assess the reasonableness of the remuneration solely by the application of the liquidator's quoted standard hourly rates to the time reasonably spent (see Re AAA Financial Intelligence Ltd (in liq) (No 2) [2014] NSWSC 1270). As the Court could not be satisfied, on the basis of the evidence as it stood at 27 September 2018, that the remuneration claimed by the applicant was reasonable, the Court made a further direction on 28 September 2018 that the applicant put on a further affidavit which addresses the factors to be taken into account under s 425(8) of the Act, with the exception of s 425(8)(k), and that the former directors be afforded the opportunity to file any affidavit in response. 15 In accordance with that direction, Mr Slaven filed a second affidavit of 9 October 2018. 16 Ms Kylie Coniglio filed an affidavit dated 18 October 2018 and Mr Andrew Ellis filed an affidavit dated 18 October 2018 in response to Mr Slaven's further affidavit. 17 I do not propose to recite in these reasons all of the detail of the many steps taken by the applicant as set out in the affidavit of Mr Slaven of 9 October 2018. Nor will I set out all of the elements of Ms Coniglio's affidavit or that of Mr Ellis. I will simply mention the major tasks and events described by Mr Slaven and the challenges made to the application by Ms Coniglio and Mr Ellis. 18 In his second affidavit, Mr Slaven deposed that while the applicant had received some records from the former directors, as at 9 October 2018, the former directors had failed to provide the applicant with a Form 507, Report as To Affairs ("RATA") (this was admitted by Ms Coniglio in her affidavit of 18 October 2018: para 23). As a result the applicant has had to seek assistance from ASIC in obtaining a RATA from the former directors: para 9. Further, after reviewing the records that were provided, the applicant formed a view that the records did not comply with s 286 of the Act: para 8. 19 Mr Slaven further deposes in his second affidavit that the applicant made an urgent assessment of the company's business and determined that an item of "work in progress" should be finalised post liquidation, and that the company should operate for a short period of time to facilitate securing certain items of plant and equipment: para 15. In addition the applicant continued trading to allow the former directors the opportunity to seek urgent legal advice regarding potential steps they might take to seek the termination of the winding up: para 15. The item of work in progress that remained to be completed was transporting a modular dwelling to Karratha in Western Australia: para 16. Due to an error by the client of the company, the company delivered the incorrect dwelling and as a result the applicant was required to negotiate further terms of trade with the client in order to secure payment and in order to transport the incorrect dwelling back to Perth: para 18. 20 Mr Slaven, in his second affidavit, says that the applicant faced the difficulty of a lack of cash flow and a lack of ongoing transparency concerning the "cash at bank" available, due to the company's business being operated from a personal bank account held in the names of the former directors, in their joint capacity as the former trustees of the Trust, instead of a bank account in the company's name: para 19. 21 Mr Slaven deposes that the former directors did not cooperate in securing any additional funds to meet ongoing trading liabilities (although Ms Coniglio denies a request was made for the former directors to do so: para 49), with the exception of assisting in the realisation of an outstanding invoice of $10,000 from "Quality Builders": paras 20-21. 22 The applicant ceased trading the company's business on 14 February 2018. On 15 February 2018, the applicant's staff undertook verification and calculation of the former employees' outstanding entitlements, including termination entitlements and liaised with them to assist in making claims through the Commonwealth government and pursuant to the Fair Entitlements Guarantee Scheme: para 26, Slaven affidavit of 9 October 2018. 23 Mr Slaven says that investigations carried out by the liquidators revealed that the company's business was previously operated by Volker Pty Ltd (in liquidation) ("Volker"): para 25. Mr Greg Dudley of RSM Partners ("RSM") was appointed as the liquidator of Volker by an order of the Supreme Court of Western Australia on 24 May 2016: para 26. Volker's appointed directors and registered shareholders were Jannet Coniglio and Tarquinio Coniglio. Mr Slaven says that Mr Dudley's office advises the liquidators on 13 February 2018 that prior to Volker being placed in liquidation, Volker had transferred assets comprising certain pieces of plant and equipment having a collective value of $180,000 to the company for no consideration (referred to as "the transaction"): para 27. A copy of a letter of demand made by Volker's liquidator upon the company in relation to that transaction is annexed to Mr Slaven's affidavit. Mr Slaven says that the investigations of the liquidators revealed that on 3 March 2017 Mr Dudley issued a letter of demand upon the company under Pt 5.7B of the Act seeking the payment of $180,000 in respect of the transaction: para 28. Mr Dudley also sold certain pieces of plant and equipment owned by Volker to the company during the course of his appointment: para 28. As a result of these contentions, the liquidators and staff were required to liaise with Mr Dudley's office regarding a number of matters relating to claims made by him as liquidator of Volker. In particular, the liquidators and staff had to determine whether Volker was asserting ownership of assets in the company's possession which were said to be the subject of the transaction. Mr Slaven said that this matter was a "crucial aspect" of the liquidation of the company as it determined whether the liquidators were properly in a position to sell assets the subject of the transaction free of any challenge to the title to the assets being made by Volker: para 29. Ultimately, a resolution of Volker's claims was reached with Volker during a conversation between Mr Torline on behalf of the liquidators and Mr Phil Davie of RSM on behalf of Volker on 9 March 2018 in which the liquidators of the company and RSM agreed that Volker was to be accredited as an unsecured creditor in the liquidation of the company in the amount of the transaction: para 30. 24 Ms Coniglio, in her affidavit, disputes that the assets were transferred without consideration. She says that the consideration (among other payments) was paid by making various payments to third parties to discharge obligations owed by Volker. Ms Coniglio deposes at para 60 that: I have checked the bank details and produced an excel spreadsheet detailing those payments, the amounts and reason for payments. Annexed hereto and marked with the letters KSC 12 is a true copy of the spreadsheet, the contents of which are true and correct. 25 The Excel spreadsheet that appears at "KSC-12" is headed "Payments made on behalf of Volker Pty Ltd". That spreadsheet contains various payments from 4 December 2015 to 19 May 2016 in various amounts seemingly for the purpose of paying debts that Volker may or may not have owed to third parties. It is difficult to ascribe any probative value to this spreadsheet. It is not clear at all from the spreadsheet that these payments were made in consideration for the plant and equipment that was transferred from Volker to the company. It does not appear on the face of the spreadsheet what bank account these payments were made from. In any event, Ms Coniglio does not contest that the applicant performed the work outlined in Mr Slaven's first and second affidavit. Whatever the position may be as to whether the plant and equipment was transferred with or without consideration having been paid to Volker, I accept that the applicant was required to engage with Mr Dudley's office extensively concerning the transfer of assets from Volker to the company and address the contention that Volker ought to receive consideration for the transfers. 26 Mr Slaven deposes in his second affidavit that the applicant was unable to determine whether the records on the company's electronic accounting program ("QuickBooks"), were reconciled and up to date: para 32. He deposes that the former directors were not co-operative in assisting the applicant's staff with determining the actual debtor balances outstanding as at the date of the liquidation. This had the consequence that the applicant and staff of the applicant were required to liaise with a number of pre-appointment debtors in order to secure documentation which verified their respective assertions concerning to disputed debts, agreements to set-off amounts owed to the company, and verification that certain amounts had in fact been paid: para 33. 27 Mr Slaven deposes in his second affidavit that the applicant was required to locate and secure eighteen pieces of plant and equipment that were discovered as a result of investigations into the company: para 34. During the liquidation, the landlord took possession of the company's premises on 13 February 2018 and as an interim measure the applicant was required to arrange for the company's plant and equipment to be temporarily secured at the former directors' personal premises: para 35. The applicant was also required to engage in discussions to facilitate access to the property. The liquidators engaged an independent auctioneer and valuer on 12 February 2018 to repossess and value the company's plant and equipment: para 36. Mr Slaven also deposes that the entirety of the company's plant and equipment, with the exception of one prime mover, was subject to finance with five separate financiers: para 37. Accordingly, the liquidators and their staff were required to undertake detailed reviews of the respective financiers' loan contracts and security registrations to determine if relevant parties had valid enforceable security interests under the Personal Properties Securities Act 2009 (Cth) (the "PPSA"). 28 The applicant determined that three pieces of plant and equipment could contribute realisable equity to the company. On 27 February 2018, the applicant instructed the appointed auctioneer and valuer to sell two items of plant and equipment: para 38. 29 There was a further issue to be addressed by the applicant involving a piece of equipment that the directors asserted was owned by them personally. However, the applicant's investigations revealed that the equipment was, in fact, owned by the company and purchased with finance from Macquarie Finance Limited: para 40. The applicant requested that the former directors provide documentation supporting their assertion as to ownership. However, as at 9 October 2018, they had not done so: para 41. The liquidators disclaimed 15 pieces of plant and equipment in favour of the respective financiers on the basis that the relevant financing arrangements meant that no realisable equity was available to the company the subject of valid security interests. The liquidators liaised with the former directors and respective financiers to recover particular assets which were located at the premises of the former directors: para 42. 30 Further investigations by the applicant revealed that prior to the applicant's appointment, the company borrowed funds from a private entity called HYE Pty Ltd ("HYE"): para 43. On 11 January 2016, HYE registered a security interest over the entire assets and undertaking of the company on the Personal Properties Securities Register (the "Register"): para 45. The applicant and staff of the applicant liaised with the director of HYE in relation to the security interest. The director was unable to locate the loan and security documents supporting the purported security interest: para 47. Moreover, the security interest had not been registered under the Australian Business Number of the Coniglio Family Trust as required under the PPSA. As a result, in May 2018, the applicant instructed solicitors to seek the removal of HYE's security interest from the Register: para 49. 31 Mr Slaven deposes in his second affidavit that he has reviewed the timesheets for the work performed and concludes that there are no issues with the veracity and accuracy of the timesheets: para 50. Ms Coniglio in her affidavit of 18 October 2018 does not dispute that the applicant has performed the work within the period of their appointment: para 5. Ms Coniglio in her affidavit takes issue with a number of aspects of the time sheets. 32 First, Ms Coniglio states that the "WIP report" for the receivership is either not provided or is bound up with work done concerning the liquidation and that the items of work do not appear to be separated or recorded under a separate code accounting for matters dealt with exclusively in the receivership itself. However, the entries are accounted for separately in annexures MS-2, MS-3, MS-4 and MS-5 of Mr Slaven's affidavit. 33 Second, Ms Coniglio deposes that she is concerned that the applicant has charged incorrect rates for its staff. She gives, as an example of that conduct, the timesheet of Ms Emma Heath, an employee of the applicant. The timesheet gives Ms Heath's rank as "Senior Manager - Grade 2". However, the remuneration table in Annexures MS-2 to MS-6 states that her position is one of "Associate Director". The position of "Senior Manager - Grade 2" does not exist on the remuneration tables in the affidavit of Mr Samuel Freeman dated 7 March 2018 or in the Annexures MS-2 to MS-6 to the affidavit of Mr Slaven dated 2 August 2018. Instead, the position graded between "Manager" and "Director" is a position called "Associate Director". Although the lack of explanation of that discrepancy is unfortunate, I accept that the rank of "Senior Manager - Grade 2" is the appropriate hourly rate for an employee in the position of "Associate Director". Mr Slaven deposes to the accuracy of the rates. 34 Third, Ms Coniglio also objects that a member of the applicant's staff with the rank of "intern" has been charged out as an "analyst". After reviewing the timesheets in Annexure MS-1 to the affidavit of Mr Slaven dated 2 August 2018, I am satisfied that that employee has performed work which is reasonable and the quantum of remuneration claimed for that work is reasonable despite that employee's status as an "intern". I am satisfied that there is no issue with the veracity of the timesheets. 35 Ms Coniglio also stated in her affidavit that as the external administrators have "teams split between NSW, WA and legal staff in QLD", there are inefficiencies that are "likely to have arisen in conducting the liquidation and receivership". This bare assertion is not elaborated upon. I am not satisfied that the bare assertion answers the affidavit evidence of the applicant which specifically addresses the content of the tasks and the various events that arose in performing the work. 36 Ms Coniglio also stated that the disbursement for legal fees should not be paid, because the lawyers were negligent in putting the trust into receivership. This is said to be the case because the invoices which were the basis for the winding-up order were made out to a separate and distinct entity. Ms Coniglio says that the company was solvent at the time the winding-up order was made. The applicant's application for their remuneration is an inappropriate forum to agitate questions of whether the winding-up order should have been made. However, no application was made to discharge the order. 37 Ms Coniglio asserts that the company is small, and therefore not complex. Ms Coniglio also objects on the basis that the majority of the work is performed in the liquidation by senior members of the firm which have charged a higher rate than if a junior member of the firm performed the work and that work had been reviewed by senior staff. Ms Coniglio did not deal specifically with the complexities arising in the liquidation and receivership that were identified by Mr Slaven in his second affidavit of 9 October 2018. 38 Apart from these general matters, there are a number of specific matters addressed by Ms Coniglio in her affidavit that should be noted. As already mentioned, Ms Coniglio does not dispute that the external administrators have performed the work within the period of their appointment but she asserts that the claimed remuneration is "exorbitant, unreasonable and not proportionate": para 6. She says that she is not satisfied that the liquidators and receivers have adequately explained their time spent on the external administration or that it is "reasonable and fair in the circumstances": para 9. She says that the fees are "excessive" and that although timesheets have been put in evidence, she has not been able to check these against the work that was done by reference to any documents, files or otherwise: para 11. She says that she believes that Mr Slaven has "attempted to overstate the work conducted in his affidavit": para 13. As earlier mentioned, Ms Coniglio asserts that there does not appear to be separation between work done in connection with the liquidation and work done in connection with the receivership. She makes the point earlier mentioned concerning Emma Heath's timesheet: para 15. She also makes the point earlier mentioned that the work ought to have been done by more junior members of staff attracting lower charge-out rates: para 18. She also asserts that it appears to her that the liquidators/receivers have sought a fee approval covering all of the funds they have access to so as to exhaust any dividend that might otherwise be payable to the creditors. As to all of these matters, the difficulty is that the applicant has sought to explain in considerable detail (through the annexures), the precise work done and by whom and at what rate. The applicant has also sought to explain the scope of the tasks which were necessary in the conduct of the administration. The weight of the evidence in support of the application descends into considerable detail and it must weigh in favour of the applicant when balanced against bare assertions. 39 Other matters that Ms Coniglio deposes to should also be mentioned. Ms Coniglio accepts that she has not submitted a completed report as to the affairs of the company which she accepts "may have hampered the liquidator's ability to conduct their investigations": para 23. However, Ms Coniglio disputes the extent of "any hampering that may have occurred". Ms Coniglio accepts that she objected to the liquidation in its entirety but nevertheless she says that she "enabled the liquidators to gain access to the records for the Company which record the Company's financial position": para 23. She says that she does not "trust the Applicant" for reasons she asserts in her affidavit: para 24. Ms Coniglio asserts that she has co-operated with Mr Freeman and Ms Heath. Ms Coniglio says that documents were, from time to time, sent to an address for Ms Coniglio which the liquidators knew not to be her address. She says that creditors were not aware that the company was in liquidation. She says that the liquidators took "all the equipment" and re-possessed "all the gear" in order to "take the trust": para 45. 40 As to the Karratha Project, Ms Coniglio says that the company was supplied with the incorrect building by the client and delivered the incorrect building to the relevant site: para 47. It had to go back to Perth. She says that the error was not that of the company. She says that the liquidators decided to stop the company trading "really quickly". No alternative of a reasonable time to trade out of particular difficulties was available to the directors: para 50. 41 As to the Volker matter, Ms Coniglio says that the company business was not previously operated by Volker. She says that Volker was a separate business. She says that the company did obtain the contacts and clients from Volker but there were two separate entities, Volker and the company. Ms Coniglio complains that Mr Slaven provides no evidence that the company was operating the same business as Volker. She says that Volker ceased trading when it went into liquidation on 24 May 2016. The business had been started as a house transporting business on 24 February 2016. She says that the company did not purchase the business from Volker and nor did the company take on any of the debts payable by Volker: paras 51-55. The company and Volker did use the same book-keeper, Ms Helen McKeon: para 56. As to the payment of invoices into the accounts of the respondent, Ms Coniglio says that that was for work carried out by the company and not work carried out by Volker: para 58. 42 It needs to be remembered that whatever the contested factual matters might be about all of these things, the applicant was required to get to the bottom of the relevant facts and address the claims made by Volker's liquidator that assets had been transferred from Volker to the company for no consideration. In relation to this issue of the transfer of assets from Volker to the company, Ms Coniglio says that "we paid $198,000 for those" and thus the transfer of assets was not for "no consideration" as alleged in the claims made by Volker's liquidator: para 60. Ms Coniglio says, as earlier mentioned, that payments were made out of accounts operated by Ms Coniglio to extinguish obligations owed by Volker to third parties. As to the accounts, Ms Coniglio says that in relation to the bank account for the business of the company, "the company did not run the business through its account": para 61. The explanation for that is that because she and Andrew Ellis were originally the trustees, they elected to run the business through a bank account in their joint names as trustees even though the company had become the trustee and was acting as a trading trust in carrying on the business. Ms Coniglio says that when the company took over as trustee, she and Mr Ellis took no step to change the bank account. She says that the account in the joint names of Ms Coniglio and Mr Ellis was never a "personal bank account". She says it was "always the bank account of the business". 43 It needs to be remembered that the applicant is confronted with trying to understand and accurately identify all transactions relevant to the business undertaking of the company as trustee of the trust. In that context, the applicant was confronted with trying to deal with transactions through an account in the name of Ms Coniglio and Mr Ellis being an account operated by them. Instead of being able to call for the bank statements and all documents related to transactions reflecting payments in and out of an account in the name of the company as trustee of the trust reflecting orthodoxy of administration, the applicant had to deal with the unorthodox, consisting of trying to isolate every transaction relevant to debts owing to the company and payments made by the company through an account operated by Ms Coniglio and Mr Ellis individually notwithstanding that they now say that it was always operated by them as trustees. Of course, from the relevant point in time, they were not the trustees. The company was the trustee. 44 As earlier mentioned, Ms Coniglio says that on behalf of the company "we did purchase plant and equipment owned by [Volker] when it went into liquidation, but we paid either the loan value or market". Ms Coniglio asserts certain financial statistics in relation to QuickBooks: para 64. Ms Coniglio also sets out certain facts in relation to monthly rental for the storage of mobile phone buildings for ICS Industries Pty Ltd. Ms Conoglio says that these revenues represent future work that the liquidators did not take into account when deciding to stop trading activities: paras 66 and 67. Ms Conoglio also says that the liquidators sold an unencumbered truck for a significant under-value: para 70. She also says that the intervention of the liquidation had the effect of bringing negotiations to an end for the sale of two vehicles for $160,000 which Ms Conoglio says would have produced a profit (or at least an anticipated profit) of about $138,000. 45 It can be seen that some of these allegations are concerned with the consequences of the liquidators electing to cease the trading operations of the company. One of the allegations is concerned with the conduct of the liquidators in relation to the sale of an asset at an under-value and other allegations are concerned with the financial consequences of the intervention of the liquidation itself. 46 The difficulty I have with Ms Conoglio's affidavit is that apart from calling into question some aspects of the conduct of the liquidators/receivers in, for example, electing to cease the trading operations of the company (prematurely, in Ms Conoglio's view) and the sale of assets, the affidavit demonstrates that the applicant was necessarily engaged in a range of activities in relation to the business affairs of the company which had many dimensions and which had to be addressed whether in the form of the Volker claims, the financial transactions conducted through an account in the names of Ms Conoglio and Mr Ellis or an analysis of a range of transactions relating to the affairs and assets of the company. 47 Mr Andrew Ellis also filed an affidavit dated 18 October 2018. In that affidavit, Mr Ellis provides some commentary on the background of the liquidation and receivership. He deposes that the former directors informed the liquidators of the location of the hard copy records of the respondent. The correspondence annexed to that affidavit indicates that the former directors informed the liquidators of the location of two pieces of plant, namely, a "1996 Iveco Tilt Tray" and a "2003 Kenworth T404 6X4 Prime Mover". The affidavit does not support the former directors' assertion that the remuneration was unreasonable because it does not come to grips with the content of the tasks or the events which had to be addressed to deal with the administration of the liquidation and the receivership. 48 Having regard to the contextual matters addressed in the affidavit of Mr Slaven dated 9 October 2018, I am satisfied that the applicant's remuneration is reasonable. 49 I accept that the work was reasonably necessary in realising and preserving the value of the trust assets for distribution to creditors and for the purpose of the applicant fulfilling statutory duties (s 425(8)(a)). 50 I accept that the liquidation and receivership involved a degree of complexity as a result of issues including the landlord re-taking possession of the company's property; the directors using their personal bank accounts in the operation of the business; security interests asserted over plant and equipment; and, HYE's purported security interest over the entire assets and undertaking of the company: s 425(8)(e). 51 I also accept that the liquidation required the applicant to deal with a significant issue arising from Volker's liquidator claiming that the property of the company was transferred from Volker to the company without any consideration having been paid and that the work done in negotiating an outcome (such that Volker would rank as an unsecured creditor) had to be undertaken by the liquidator and its resolution as an issue, has value to the creditors: s 425(8)(i). 52 I further accept that the decision to continue to trade has meant that the liquidators were exposed to the risk of incurring personal liability: s 425(8)(f). 53 I further accept that significant work was done in assessing whether each financier had perfected a security interest over the 15 pieces of plant and equipment described by the liquidator. 54 I accept that although this work did not result in any realisable property in the liquidation, the work was reasonable and necessary in order to determine whether there was any realisable value for the creditors. 55 I am satisfied that the remuneration is reasonable even though the remuneration would exhaust the trust estate such that, ultimately, there will be no dividend paid to creditors as identified in the affidavit of Ms Coniglio on 16 October 2018. The total receipts and payments for the period from 9 February 2018 to 10 June 2018 are set out in Annexure "MS-6" of the affidavit of Mr Slaven dated 2 August 2018. According to that annexure, the position as at 10 June 2018 was that the company had $147,146.58 available for distribution to creditors. The result of the remuneration claim is that the applicant's remuneration is likely to exhaust the whole of the trust estate. This conclusion warrants especially close scrutiny by the Court of the remuneration claim so as to ensure that appropriate commercial judgements have been made by the receiver in attempting to realise the assets and to be satisfied that the particular circumstances of the case warrant such a conclusion. I have considered all of the affidavits of all deponents with an eye to that consideration in particular. The question of whether appropriate commercial judgements have been made is largely a function of the nature of the activities of the entity's business undertaking; the location of its assets; the character of its assets; the realisable values attributable to those assets; the steps that might be necessary to gather in and realise those assets; the degree of co-operation from directors so as to facilitate an efficient administration and/or receivership; the nature of contentions or claims made by debtors otherwise thought to owe the company money; the nature of claims as to set-offs; the conduct of the directors in seeking to run the financial affairs of the company through accounts other than company accounts and through arrangements other than properly documented arrangements which ought to be reflected in the business records of the company; the record-keeping protocols adopted by directors; and the extent to which orthodox business practices have been deployed by directors in the conduct of the company's undertaking. 56 In para 14 of the affidavit of Mr Freeman dated 7 March 2018, Mr Freeman deposes that the applicant has identified outstanding debtors totalling $105,936.23 and plant and equipment consisting of approximately 19 pieces of equipment with a collective estimated net realisable value of $110,786, resulting in an anticipated value of assets of $216,722.23. 57 I accept that in light of the disclaimers of the property that occurred after discovering that relevant assets were subject to finance, and the difficulties faced in the liquidation and receivership as explained in the affidavits of the applicant (and set out above), the applicant has exercised the appropriate degree of commercial judgement in engaging in the work in an attempt to realise assets which were, or were likely to be, of value to the creditors. Accordingly, the remuneration of the liquidators and receivers is fixed in the sum of $149,437.75 and is to be paid at the discretion of the liquidators/receivers. The future remuneration of the receivers and liquidators is capped in the sum of $30,538.75. The applicant's costs of the application will be their costs in the winding-up and the receivership. The orders and reasons in support of the orders will be published from Chambers, the application having been determined on the papers. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.