The agreement reached in the conversation as to 'caps' was an agreement about the content of the resolutions that would be put to creditors at the meeting that was about to take place. The agreement was reached on the clearly implied footing that a resolution of creditors fixing remuneration represents part only of the overall machinery created by s 449E for fixing remuneration and that other parts of that overall machinery may operate to cause remuneration already fixed to be supplemented by additional remuneration or to be increased or reduced." (Emphasis added.)
41 His Honour concluded (at [70]) that the representations upon which the applicants' estoppel case was founded was not made out. His Honour did not identify any other submissions made by the applicants in support of their estoppel argument.
42 Mr Ashhurst submitted to this Court that the findings made by the primary Judge, despite his Honour's rejection of Mr Dwyer's evidence, should have led his Honour to conclude that the Administrator was estopped from seeking review of his remuneration pursuant to s 449E(2) of the Corporations Act. Mr Ashhurst invoked the principles of estoppel by representation stated in Waltons Stores (Interstate) Pty Ltd v Maher [1988] HCA 7; 164 CLR 387, esp at 428-429 [33]-[34], per Brennan J.
43 Mr Ashhurst relied on the primary Judge's apparent acceptance (at [40], [42]) of Mr Vouris' evidence that he had conveyed to Mr Dwyer the Administrator's agreement to discount his fees and to cap them for the future. Mr Ashhurst argued that Mr Dwyer believed that the Administrator had agreed to fixed maximum amounts by way of remuneration and that these would not be altered; that Mr Dwyer's subjective beliefs were induced by Mr Vouris' communications with him; and that in making these communications, Mr Vouris was a mere "conduit" for the representation made by the Administrator.
44 There are a number of flaws in this argument. First and foremost his Honour found that the Administrator did not represent to Mr Vouris that he (the Administrator) would not in any circumstances seek remuneration beyond the caps approved by the creditors. The applicants did not put forward any basis for challenging the finding. That being so, the foundation for the applicants' estoppel argument, as his Honour concluded, is wanting.
45 Secondly, to the extent that Mr Vouris communicated with Mr Dwyer after his (Mr Vouris') meeting with the Administrator, he was more than a mere "conduit". The primary Judge found that there was no reference to a "maximum" in the conversation between the Administrator and Mr Vouris, but that Mr Vouris had used the word in his conversation with Mr Dwyer. (There seems to have been a finding earlier (at [42]) that Mr Vouris had not in fact used the word "maximum" in his conversation with Mr Dwyer, but this is likely to reflect a typographical error in the judgment.) If Mr Vouris used his own language to convey the substance of the agreement reached with the Administrator and Mr Dwyer misunderstood Mr Vouris' meaning, that is hardly a basis for establishing an estoppel against the Administrator which would prevent him from denying something he never said.
46 Thirdly, this Court was not taken in argument to any evidence given by Mr Dwyer that he relied to his detriment on anything said by the Administrator in his conversation with Mr Vouris (as distinct from relying on his own alleged conversation with the Administrator or on what Mr Vouris told him following the latter's conversation with the Administrator). It is an essential element of equitable estoppel based on an alleged representation that the representor has induced the representee to act or refrain from acting on the basis of the representation and that the representee does so to his or her detriment: Waltons Stores v Maher, at 426-427, 429; Meagher Gummow and Lehane's Equity Doctrines and Remedies (4th ed, 2002), at [17050]. The Court was not taken to any evidence that could satisfy this element of equitable estoppel.
47 Mr Ashhurst put forward an alternative estoppel argument. He submitted that statements made by the Administrator at the creditors' meeting were sufficient to found an estoppel preventing him from seeking additional remuneration above the agreed caps. The statements relied on were made immediately after the meeting had resolved to approve the Administrator's remuneration for the period from 24 January 2008 to 1 April 2008, capped at $540,000. The Administrator is recorded as saying this:
"Now the next resolution that needs to be passed is from this point in time to until we actually sign the deed of company arrangement. It's a - we don't think it's going to take anything because we're staying as voluntary administrator during that time frame until we've actually executed, once it's executed then we become the deed administrators we need to get those fees capped at a certain amount as Paul just said we don't know if we're going to be using the amount that we've estimated but we get it capped to that limit. So if we don't use that full amount we don't get it obviously. It's as simple as that. So what we're looking to get is $90,000 exclusive of GST and disbursements. The resolution that needs to be passed is that the remuneration of the administrator, his partners and staff be approved for a period of from the 2 nd April until the execution of the deed of company arrangement to be calculated on a time basis and charged at the hourly rates of PFK's chartered accountants and business advisors and the administrator be authorised to make periodic payments on account of such accruing remuneration at his discretion up to cap $90,000 exclusive of GST and disbursements,"
48 It is far from clear that the applicants put this argument to the primary Judge, who made no reference to it. Mr Ashhurst pointed to a passage in his written submissions at trial, but the passage does not explicitly raise an estoppel argument based solely on what was said at the creditors' meeting.
49 In any event, in my opinion the argument cannot succeed, for two independent reasons. First, the authorities insist on a clear and unambiguous representation as a necessary foundation for estoppel: Foran v Wight [1989] HCA 51; 168 CLR 385, at 410-411 [51], per Mason CJ, citing Legione v Hateley [1983] HCA 11; 152 CLR 406, at 435-437 [10], per Mason CJ and Deane JJ; Green v AMP Life Ltd [2005] NSWCA 354, at [28], per Basten JA (with whom Spigelman CJ and Giles JA agreed). The statements made by the Administrator at the creditors' meeting (at which Mr Vouris was present) cannot be said to be a clear and unambiguous representation that the Administrator would not invoke the statutory jurisdiction to increase his remuneration above the agreed cap.
50 The significance of reference to the cap was that the Administrator was authorised to make periodic payments on account of proper charges up to the limit imposed by the cap. As s 449E(4)(k)(ii) recognises, the capping of an administrator's remuneration does not preclude the Administrator seeking review of the remuneration so capped, although the Court must take the cap into account in determining whether the remuneration is reasonable. There was nothing said by the Administrator at the meeting that attributed a greater significance to the cap than that which is implicit in the statutory scheme.
51 The second reason is that this Court was not taken to any evidence suggesting that Mr Dwyer did or refrained from doing anything in reliance on what the Administrator said at the creditors' meeting. Indeed, we were not taken to any evidence suggesting that Mr Dwyer understood what was said at the meeting to imply that, if circumstances changed from those anticipated at the meeting, the Administrator would not ask creditors or, if they refused, the Court to sanction additional remuneration.