Nicholls (Trustee) v Australian Securities and Investments Commission, in the matter of Lawson

1. Following payment of the applicant's approved costs, expenses and remuneration in accordance with the orders made by Registrar Morgan on 27 September 2024, the applicant be discharged from his appointment as receiver of the property of the Shirley Investment Trust and the balance of the funds held by the applicant be paid as directed by the trustee of the Shirley Investment Trust. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

HALLEY J: 1 This is an application for the discharge of a receiver previously appointed by the Court, following the completion of his duties as receiver. 2 On 2 November 2023, I made orders pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) (Act) that the respondent, the Australian Securities and Investments Commission (ASIC), reinstate the registration of Shirley Lawson Pty Ltd (Company), that on reinstatement of the registration of the Company, Shirley Thelma Lawson be appointed as a director and secretary, and that the applicant, Alan Richard Nicholls, in his capacity as trustee of the bankrupt estate of Shirley Thelma Lawson be appointed as receiver (Receiver) of the property of the Shirley Investment Trust (Trust Property): Nicholls (Trustee) v Australian Securities and Investments Commission, in the matter of Lawson [2023] FCA 1368. 3 I also made orders that the costs, expenses and reasonable remuneration of the Receiver, and the costs of the application, be paid from the Trust Property. 4 On 13 August 2024, the applicant filed an interim application seeking: 1. An order that the costs, expenses and remuneration of the Applicant in his capacity as receiver of the Shirley Investment Trust be approved by the Court. 2. An order that the costs of the application referred to in order 10 of the orders made on 2 November 2023 [the applicant's costs of this application be paid out of the Trust Property] be fixed at $17,610. 3. The requirement for the Applicant to file accounts pursuant to rule 14.25 of the Federal Court Rules 2011 (Cth) be dispensed with. 4. The Applicant's costs of the application be costs of the receivership and be determined by the Court. 5. Following payment of the Applicant's costs, expenses and remuneration provided by these orders, the Applicant be discharged from his appointment as receiver of the assets of the Shirley Investment Trust. 5 The interim application was supported by an affidavit from the applicant detailing the performance of his duties as Receiver, two affidavits of service from the applicant's solicitor, and a further affidavit from the applicant's solicitor with respect to the applicant's legal costs incurred with respect to the receivership. 6 The relief sought in Prayer 1 to Prayer 4 of the interim application was referred to a Registrar for determination. 7 On 27 September 2024, Registrar Morgan made the following orders: 1. The Court approves the costs, expenses and remuneration of the Applicant incurred in his capacity as receiver of the property of the Shirley Investment Trust and payable pursuant to orders 6(a) and 8 made in the proceedings in 2 November 2023 in the following amounts: a. Costs and expenses of the receivership of $5,007.00; b. Remuneration claimed in accordance with the Applicant's time-based recording practices to a maximum amount of $7,733.02; 2. The costs of the application referred to in order 10 made in these proceedings on 2 November 2023 be fixed in the amount of $17,610.00. 3. Any requirement of the Applicant to file accounts pursuant to r 14.25 of the Federal Court Rules 2011 (Cth) be dispensed with. 4. The Applicant's costs of the interim application filed on 13 August 2024 be fixed in the amount of $5,087.80 and be costs of the receivership payable from funds held by the receiver. 8 The remaining relief sought in Prayer 5 of the interim application, being the discharge of the applicant from his appointment as Receiver, was referred back to me as the case management Judge. 9 I am satisfied that the interim application has been served on all parties with an interest in the receivership, and there was no opposition to the interim application. 10 I am also satisfied, consistently with the approach taken by Stewart J in Senatore, in the matter of Autotech services (ACT) Pty Ltd (in liq) (No 2) [2024] FCA 213, that this is an appropriate matter to be dealt with on the papers. 11 The evidence relied upon by the applicant, demonstrates that the Receiver has realised all the assets of the Trust, and has paid all known creditors of the Trust. The Receiver has produced bank statements showing records of receipts and payments which shows that there is a surplus balance of $123,173.97. Following the payment of the Receiver's costs, expenses and remuneration, there would remain a balance of $87,719.85, to be paid to the Company in accordance with Order 6(b) of the orders made on 2 November 2023. 12 The object of the receivership was to realise the assets of the Trust to pay the creditors of the Company. The object has now been achieved. 13 I am therefore satisfied that an order should be made that the applicant be discharged from his appointment as Receiver, following payment of his costs, expenses and remuneration pursuant to the Registrar's orders made on 27 September 2024. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley.