REASONS FOR JUDGMENT
1 I am presently seized with so much of an application made by Mr Michael Andrew Owen, and his colleagues, Mr Stephen James Parbery and Christopher Clarke Hill, as concerns the approval of remuneration sought by them in their capacity as the joint and several administrators of the following companies:
RiverCity Motorway RE Holdings Proprietary Limited;
RiverCity Motorway Management Limited;
RiverCity Motorway Asset Nominee Proprietary Limited;
RiverCity Motorway Asset Nominee 2 Proprietary Limited;
RiverCity Motorway Services Proprietary Limited;
RiverCity Motorway Finance Proprietary Limited;
RiverCity Motorway Proprietary Limited;
RiverCity Motorway Construction Proprietary Limited;
Flow Tolling Proprietary Limited; and
RiverCity Motorway Holdings Proprietary Limited.
2 Those companies collectively might conveniently be described as the "RiverCity Motorway Group". Messrs Owen, Parbery and Hill are each official liquidators and members of the firm, PPB Advisory. On 25 February 2011, they were appointed as the joint and several administrators of the several companies which comprise the RiverCity Motorway Group. On 18 March 2011, I made orders which, inter alia, and in respect of the various companies in the RiverCity Motorway Group, extended the convening period for the holding of the second meetings of creditors up to and including 18 December 2012: see Owen in the matter of Rivercity Motorway Pty Limited (Administrators Appointed) (Receivers and Managers Appointed) v Madden [2011] FCA 295.
3 The background to why the convening period is set out in those earlier reasons for judgment. That extension of the convening period has necessarily impacted upon the nature and extent of the work which has fallen to the administrators to undertake. So too has the coincidence of one of the companies under administration, being a "responsible entity", for the purposes of those provisions of the Corporations Act 2001 (Cth) (Corporations Act) relating to managed investment schemes. Another aspect of the administration which has presented particular difficulties is the existence of very substantial tax losses within the RiverCity Motorway Group and the ramifications in respect of the utility of those tax losses for application against income or capital gains in the event of a disposal of the core tolling business of the RiverCity Motorway Group.
4 These two factors, in particular, as well as the large class of unit holder creditors, and the existence of receivers and managers appointed at the behest of a banking syndicate have, I am quite sure, and as Mr Owen deposes, presented singular challenges in the conduct of the administration. In turn, they have necessarily impacted upon the costs of the administration. The application has been notified not just to the Australian Securities and Investments Commission (ASIC), but also to creditors in a way which coincides with the form of notice for which I made provision in the orders of 18 March 2011. There is another aspect to the application made by the administrators, and one with which I am not dealing today, which concerns what might broadly be described as the interaction between provisions of the Corporations Act concerning managed investment schemes, and the provisions of the Act concerning companies under administration.
5 That aspect motivated ASIC to seek leave to be heard as amicus curiae. ASIC, as a matter of its considered value judgment, did not seek to be heard on the question of the remuneration and related relief sought by the administrators. There has been no other appearance by or on behalf of any creditor or anyone who might be regarded as an interested party. I am satisfied that the notification that has been affected of the application has been sufficient to draw the application to the attention of any interested party. The absence of an active contradictor does not, as was readily acknowledged on behalf of the administrators, mean that the remuneration which is sought ought automatically to be approved. It remains for the Court to be satisfied pursuant to s 449E of the Act that the remuneration which is sought to be determined and fixed is reasonable. On that subject in Re Korda; in the matter of Stockford Ltd (2004) 140 FCR 424 (Re Korda), Finkelstein J has made a number of pertinent observations.
6 His Honour stated at para 40:
It seems to me that some balance must be struck between the two opposing views. The balance must achieve some moderation in fees to protect the fund so that creditors can achieve the largest possible return, but not be so moderate as to discourage competent practitioners from providing their important services. For this reason the fees charged by an insolvency practitioner to his (best) private clients will be an important point of reference but it should not be the sole criterion.
7 Later in that paragraph, and by reference to the Insolvency Rules 1986 of the United Kingdom, and also rules relating to the fixing of a provisional liquidator's costs, his Honour further stated:
The criteria to be applied to a provisional liquidator is, however, to be taken into account in relation to liquidators, where a choice must be made between remuneration by way of a percentage of the assets dealt with and remuneration by reference to time properly spent. In the case of a provisional liquidator, the factors to be taken into account are:
(a) the time properly given by him (as provisional liquidator) and his staff in attending to the company's affairs;
(b) the complexity (or otherwise) of the case;
(c) any respects in which, in connection with the company's affairs, there falls on the provisional liquidator any responsibility of an exceptional kind or degree,
(d) the effectiveness with which the provisional liquidator appears to be carrying out, or to have carried out, his duties; and
(e) the value and nature of the property with which he has to deal.
8 In para 41, his Honour further states:
In most insolvencies the estate is small, the work to be undertaken is not extensive, and few difficulties will arise. For these cases the Court should develop a rate or scale that is fair and reasonable for both insolvency practitioners and creditors. The rate could be fixed as a percentage (perhaps on a sliding scale) of the assets distributed. … Guidance for the appropriate percentage may be obtained from the legislation that regulates fees for trustee companies. … Reference might also be made to fees charged by trustees in bankruptcy: Bankruptcy Act 1966 (Cth), s 162(2) and Bankruptcy Regulations 1996 (Cth), reg 8.07
9 His Honour then contrasts at para 42 that position with that which one might apprehend prevails in respect of large, more complex administrations observing in respect of them that:
[I]t is inevitable that insolvency practitioners will wish to have their fees calculated on a time basis. The courts have endorsed this approach for so long that it is now impossible to reverse the trend.
10 Section 449E of the Corporations Act does not in terms mandate time-based remuneration for administrators. Rather, it requires that the Court take into account particular matters set out in s 449E(4). One finds there in para (k) a consideration with respect to time-based remuneration, which is cast in the conditional ie if the remuneration is ascertained in whole or in part on a time basis. What I derive from that is that time-based remuneration is contemplated by the parliament but not mandated. Where such remuneration is put forward by administrators what is prescribed by parliament to be relevant is in terms of s 494E(4)(k):
(i) the time properly taken, or likely to be properly taken, by the administrator in performing the work; and
(ii) whether the total remuneration payable to the administrator is capped.
11 The role consigned to the Court in respect of the fixing of an administrator's remuneration bears comparison with the role which the Court can be asked to undertake under the Federal Court Rules 2011 (Cth) by way of fixing costs in gross for solicitors. In that context and in Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 9) (2011) 194 FCR 250, I had occasion to collect and to make observations upon various authorities concerning time-based remuneration for solicitors and counsel and the virtues and vices which can attend remuneration so based. Those observations seemed to me to have just as much relevance to time-based remuneration for insolvency practitioners as they do for legal practitioners.
12 A difference between the position which prevails in respect of legal practitioners and insolvency practitioners is that there is no mechanism in the legislation for an assessment of the reasonableness of costs to be undertaken by an officer such as, with respect to lawyers, a court taxing officer who is familiar by virtue of the daily exercise of his or her office with prevailing costs in the marketplace in respect of the undertaking of legal work. Instead, and in an analogous way with the fixing of legal costs in gross, the task is consigned under the Corporations Act directly to the Court. In respect of the fixing of legal practitioners' costs in gross, a practice has developed whereby an expert opinion as to the reasonableness or otherwise of the claimed costs customarily forms part of the material relied upon.
13 There is not such a practice in respect of the fixing of the remuneration of administrators. A difficulty with expecting there to be such a practice in the context of companies which are under administration is that the costs of any such separate expert scrutiny would fall upon those who are already burdened with the prospect of a reduced return by virtue of the circumstances which have seen a company placed in administration. In Re Korda at [48] Finkelstein J stated:
To have his fees fixed it will be necessary for the administrator to do more than simply state the amount of time spent and the rate to be charged for that time, as happened in this case. The amount of detail to be provided in support of a claim must be proportionate to the size of the estate and the amount of time spent.
14 A useful discussion of what is required appears in Re Medforce Healthcare Services Ltd (in liquidation) [2001] 3 NZLR 145 at [33] and [34]:
[33] In our view the exercise which must be undertaken by the court in fixing the reasonable costs to the liquidator is similar to that which is undertaken when approving solicitor and client costs or costs for Legal Aid purposes. In each case what is required is enough information to enable an assessment to be made as to whether the total costs charged are reasonable.
[34] As a minimum it seems to us that what is required is a statement of the work undertaken during the course of the liquidation, together with an expenditure account sufficiently itemised to enable the charges made to be related to the work done. The detail would have to be sufficient to enable the judicial officer to determine whether the personnel involved in the liquidation and their respective charge-out rates were appropriate to the nature of the work undertaken. This information may in some cases raise concerns as to whether there has been overservicing and overcharging. If there are suggestions of this in the information provided, the Court can request further information.
15 Later, Finklestein J, makes reference to Re Solfire Pty Ltd (in liq) (No 2) [1999] 2 Qd R 182 at 191 (Re Solfire) and to Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96 at 103, which in turn makes reference to Re Solfire. In that latter case and in respect of the remuneration of a provisional liquidator the view was expressed that a document not dissimilar to a bill of costs in taxable form provided by a solicitor to his client ought to form part of the material put before the Court by provisional liquidators. In Skafcorp Ltd (admin apptd) v Jarol Pty Ltd (2002) 44 ACSR 138 Austin J at para 17 and in respect of the amounts claimed for work by administrators the subject of an application under s 449E:
The limitation created by the wording of s 449E(1) has important consequences. Pre-administration work is not recoverable under the subsection, regardless of whether there is a resolution of the company's creditors purporting to fix the remuneration. Further, the court has no power under the subsection to fix remuneration for pre-administration work. Nor, it seems, is there any right of indemnity or lien in respect of that work. If the administrator is entitled to recovery at all (on contractual or quasi-contractual grounds), his or her entitlement is that of an ordinary secured creditor.
16 That particular consideration does not intrude in this case.
17 Also pertinent are some observations made by Barker J in Re Timeshare Resort Club Ltd (in liq) (2010) 187 FCR 13 (Re Timeshare) where at para 34 his Honour stated, with respect to s 449E(4):
This means that the court has a very broad function to consider such of the matters as may be relevant - the expression "take into account any or all of the following matters" indicates that some of those matters may be particularly relevant to the case at hand while others may not be. What s 449E(4) emphasises, however, is that the Court must have regard to the primary rule - whether the remuneration is "reasonable".
[emphasis in original]
18 The factors listed are designed to assist the Court in applying that rule. This seems to be confirmed by para 4.90 of the explanatory memorandum to the Corporations Amendment (Insolvency Bill) 2007 by which this subsection was inserted into the Act. Also pertinent is his Honour's later observation in Re Timeshare at para 70 that:
Another issue also arises here, and that is the extent to which work done not by the administrator himself personally, in this case, though through the agency of or delegation of work to other persons, may be claimed as part of the work in respect of remuneration should be fixed. In Venetian, in the joint judgment, Kennedy and Ipp JJ noted that the respondent (Mr Conlan) was a partner of a firm of chartered accountants and several employees of his firm assisted him in carrying out his duties as provisional liquidator. Their Honours, by reference to Re Trustees Executors & Agency Company Limited (1984) 9 ACLR 497, observed that the remuneration to which the provisional liquidator was entitled included compensation for work done by him for the employees of his firm.
19 Here, it is obvious from Mr Owen's affidavits that he and his fellow administrators and those advising them have taken to heart the observations made by Finkelstein J in Re Korda as to the material which ought usually to be placed before the court on an application of this kind. There is included in the affidavit material, a detailed itemised account of the work undertaken by the administrators. It is apparent from that account that not all of that work has been undertaken by them personally. However, as the authorities to which I have made reference discloses that does not foreclose the allowance of remuneration for work undertaken by employees on the administrators. Indeed, for work to be undertaken by subordinate staff may under the supervision of the administrators may well result in considerable savings.
20 A difficulty in respect of a complex administration even where, as here, the administrators have provided detailed accounts of work undertaken and rates of charging, is that there is no touchstone or independent measure of reasonableness other than a matter of judicial impression. I have already referred to a practice which attends the fixing in gross of solicitor's fees and the difficulty which that practice might present in the context of further burdening an insolvency administration with costs.
21 It may well be the case that there is a need for the regulator, ASIC, to have some involvement as a matter of deliberative judgment in applications of this kind. That, though, is a matter for parliament to determine as to whether there is a public interest in such involvement which would warrant amendment of the legislation so as to require all such applications to be served upon ASIC. Other alternatives may be for ASIC to have a taxing officer role with merits review possible in the Administrative Appeals Tribunal.
22 The point of this, though, is that in complex administrations and as the legislation presently stands there is a public interest in there being conducted by competent practitioners and there are interests both of creditors as well as a public interest in their remuneration not being the subject of over-allowance by virtue of an absence of a contradictor or an independent yardstick of evidence of what is reasonable in the marketplace. Having said that, I have particularly taken into account the rates of charge put forward by the administrators. They do not, in themselves, appear to me to be unreasonable. Further, and having regard to the complications of this administration to which I have already made reference, the times taken by the various employees and the administrators themselves in the undertaking of the administration do not appear to be unreasonable.
23 Yet further, the totals both in respect of particular companies under administration and overall do not appear to me to be unreasonable having regard to the particular nature of these administrations. As with the fixing of costs in gross for solicitors, so too with administrators' remuneration, it is not necessary for the Court to engage in an item by item analysis as one would see in respect of a formal taxation of a solicitor's costs: see ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2004] QSC 133 at [16].
24 Features of this administration are these:
(a) The group comprises 10 companies;
(b) Eight of those companies operate the business associated with the Clem7 Tunnel. It is those companies to which receivers and managers have been appointed;
(c) One of the companies is a responsible entity for the trusts which are the managed investment schemes;
(d) Another of the companies is the parent of that responsible entity;
(e) By reason of their appointment to the group, the administrators have hitherto considered themselves to be officers of the companies, including those which are the responsible entity and its holding company. However, in the course of the administration, and as the ramifications of that view have become more apparent in terms of the interplay between the provisions of the Corporations Act governing managed investment schemes and those governing administrations of this kind, they have had pause for thought about the correctness of that view;
(f) The administration concerns a complex group structure which includes some instances of intercompany dealings with are not documented;
(g) There is an intertwining of the affairs of the group by reason of numerous intercompany transactions and loans which have required both management and investigation;
(h) The group's tax affairs are complex and have required investigation;
(i) The inter-relationship of the affairs of the tunnel-operating companies with those of the holding company of the responsible entity, and the need to work through how that interrelationship should occur, both in a legal and practical sense, have added singular difficulties to the administration;
(j) There are reporting and disclosure obligations which are or at least potentially are burdensome; and
(k) The administration has, as was contemplated by the orders made on 18 March 2011, and it is endorsed by the receivers and managers, one which is directed to the preservation of the group's business as a going concern, at least until the completion of the Airportlink project in the course of this year in the expectation that this will have, via a consequential increase in traffic volumes, an increase in the value of the Tunnel, and thus a better return to creditors.
25 All of these factors well explain the work the nature and extent of which is described in the itemised accounts, which are attached to Mr Owen's affidavit. A further complicating factor, all too evident on the material read, as well as by the appearance sought to be made as amicus by the ASIC, is the way in which the Act is to operate against a background of a coincidence of responsible entity and corporate administration, the novelty of that and the reticence administratively on behalf of the ASIC to express concluded views as to that interrelationship to the administrators.
26 Mr Owen himself deposes not just to the accuracy, but also to the reasonableness of the remuneration. It is in no way a criticism of him to observe that the Court must adopt a guarded approach in respect of those statements by a person interested in the outcome of any application like this. All that I mean by that is that one does not gainsay the considered oath of an officer of the court, but neither does one uncritically accept that.
27 Taking all of these considerations into account, it does seem to me that the remuneration which is sought is reasonable.
28 There are consequential orders which are also sought. These in themselves are all in a standard or usual form. Thus, the administrators seek declarations in respect of their entitlement to be indemnified out of and to have a lien over the property and assets of each of the group companies, and the assets of the trust. Further, they seek an indemnity. That they are entitled to seek such an indemnity follows, in my view, from s 443D and s 443F of the Corporations Act. In respect of the trusts which constitute managed investment schemes, the constitutions of the various trusts provide, in article 19, for remuneration and expenses of a manager. It is provided there that such expenses incurred in the proper performance of the manager's duties are payable and reimbursable out of the assets of the trust. It follows from the observations which I have made in respect of the remuneration sought by these administrators that, insofar as they have undertaken managerial duties in respect of the trusts, that their expenses incurred are proper and reasonable. The nature of such an indemnity is alternatively to be found in the general law, and is described in cases such as In Re Suco Gold Pty Ltd (In Liquidation) (1983) 33 SASR 99, at p 104 and p 109, and Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677.
29 There will be orders accordingly.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.