Plaintiff v Defendant

2 On 15 April 2011, the company filed an application to set aside the winding up orders. As that application was returnable that very day, it was short served and had to be adjourned to 6 May 2011 to allow the liquidators and other interested parties the opportunity to respond to the application.

3 On 6 May 2011, the winding up orders were set aside and the defendant was ordered to pay the liquidators' remuneration and costs which, if not agreed were to be fixed by the Court. The winding up therefore had a duration of exactly one month.

4 As part of the terms upon which the orders setting aside the winding up orders were obtained, Messrs White and Quinn retained $25,000 of the defendant's funds on account of their remuneration and costs as liquidators pending the determination of an application to the Court in that regard.

5 On 18 October 2011, Messrs White and Quinn made application by interlocutory process that the defendant pay their remuneration in the sum of $36,100.31 together with their costs of the application. That application was said to be made pursuant to s 482 of the Corporations Act 2001 ("the Act")[1] but it was more properly characterised, and was treated as, an application under s 473(3) of the Act.

6 Section 473(3) provides:

A liquidator is entitled to receive such remuneration by way of percentage or otherwise as is determined:

(a) if there is a committee of inspection - by agreement between the liquidator and the committee of inspection; or

(b) if there is no committee of inspection or the liquidator and the committee of inspection fail to agree:

(i) by resolution of the creditors; or

(ii) if no such resolution is passed - by the Court.

7 No committee of inspection was appointed by the creditors, nor was there any resolution of the creditors approving remuneration and the jurisdiction of the Court to fix remuneration is attracted by operation of s 473(3)(b)(ii).

8 I note that this application only involves the award of remuneration and is not concerned with the approval or quantification of costs and disbursements. Mr Quinn's affidavit of 10 August 2012 itemises disbursements of $7,620.66 and legal costs of $6036. As indicated by the Full Court of the Supreme Court of Western Australia in Venetian Nominees v Conlan,[2] the Court is not empowered to determine, in an application for liquidator's remuneration, disbursements incurred by the liquidators in the administration of the liquidation.[3] If the legal costs are not agreed, they will need to be taxed.

9 The interlocutory process seeking an award of remuneration was first returnable on 4 November 2011. On that occasion, Mr Kohn of Counsel appeared on behalf of the liquidators and Mr Sandbach appeared for the defendant. After canvassing various issues at that hearing, I gave directions designed to put the application on an proper footing. I directed that the liquidators file and serve on the defendant and any other person required by rule 9.4 of the Supreme Court (Corporations) Rules 2003 a table in Word or Excel format describing the tasks for which remuneration was sought, together with any further affidavit material on which the liquidators intended to rely, by 2 December 2011. I also ordered that the defendant and any other person objecting to the application for remuneration file and serve (in electronic format) a notice in the form of a response to the remuneration table prepared by the liquidators containing a narration explaining why objection was taken to the award of remuneration. That was ordered to be done by 23 December 2011 but it was not until the day before the hearing of the application, on 6 February 2012, that the defendant purported to comply with that order.

10 The spreadsheets prepared by the liquidators documenting their claim for remuneration run to nearly 50 pages. I do not intend to descend in these reasons to a detailed analysis of that document or the affidavit material filed by the parties. What follows is a summary of my consideration of that narrative and of the defendant's objections, together with my observations and findings as to whether and in what sum remuneration should be awarded.

11 The affidavit material which has been filed by the parties reveals that the winding up was not one which involved complex negotiations, transactions or (other than this application) any litigation on the part of the liquidators. The number of unsecured creditors is not identified but they total approximately $60,000 in value. The liquidators did not trade on after the making of the winding up order. As liquidations go, it would be described as an unremarkable and uneventful administration.

12 The defendant is a building company and when the order for winding up was made it had contracts on foot to build four houses on several different sites in the Melton area. The debt upon which the winding up order was obtained arose from the supply and installation of roof tiles to one of the defendant's projects in Melton. A default judgment was obtained against the defendant. There was no subsequent reaction to a statutory demand or the subsequent winding up application which was served on the defendant by reason of alleged delinquency on the part of the defendant's accountant.

13 The spreadsheets that the liquidators have prepared contain a description of the tasks which they say have been undertaken during the period of the liquidation. Mr Sandbach of Counsel for the defendant complains that the liquidators' material does not enable me to carry out the task of fixing remuneration.

14 In Venetian, the Court made some observations about the quality of the material which should be adduced in applications of this type. The Court observed[4] that a summary procedure was involved, not unlike that applicable to the taxation of solicitor's costs, where the process is not necessarily subject to all the rules that would apply in an action. The onus is upon the applicant for remuneration to establish that the claim is fair and reasonable. In Venetian, the Court observed:[5]

It is the function of a court to determine the remuneration by considering the material proffered and bringing an independent mind to bear on the relevant issues. The initial task is to consider whether, prima facie, the provisional liquidator has made out a case for the determination of the amount claimed. The fact that there may be no person who objects to the claim, or any part of the supporting testimony, or that objectors advance unsustainable arguments, or do not properly formulate their objections, cannot detract from the court's duty in this respect. The judicial officer conducting an inquiry under s 473(2) is required to make an independent determination of the remuneration claimed, even if there is an absence of objectors, or appropriately detailed objections, or objections advanced on arguable grounds. Of course, once the court is satisfied that the provisional liquidator has made out a prima facie case that the remuneration claim should be allowed, the absence or inappropriateness of points taken by objectors becomes relevant.

Should the provisional liquidator fail to provide adequate evidentiary material to enable the court to determine whether the amounts claimed are fair and reasonable, no order should be made: Re Solfire Pty Ltd (in liq) No. 2. Thus, for example, the mere listings of the persons who performed the work, the hours worked by each, and the amounts claimed, may well be insufficient material for the court to come to a proper decision.

Ordinarily, to commence the proceedings, the provisional liquidator will provide the court with a statement of account reflecting in appropriate itemised form, details of the work done, the identity of the persons who did the work, the time taken for doing the work, and the remuneration claimed accordingly ...

The statement of account should be verified by affidavits. When the remuneration claimed involves work carried out by the provisional liquidator and his staff, the verifying affidavit need state merely that the work described in the statement of account was done by the provisional liquidator or under his personal supervision, and that from personal knowledge or from the records kept by the provisional liquidator or his firm, or from some other appropriate source, he believes that the information contained in the statement of account is correct.

15 The Full Court quoted from the decision of Sheperdson J in Re Solfire Pty Ltd (in liq) (No 2)[6] where he stated:[7]

In my view, when a provisional liquidator seeks to have his remuneration determined by the court he should provide a document not dissimilar in form to the Bill of Costs in taxable form provided by a solicitor to his client ... He should identify the person or persons in the grade or grades of the person or persons engaged in the particular task concerning the provisional liquidation, he should identify that task and dates on which the time was spent on it, the amount of time spent on it and he should identify the relevant rate, according to the grade of the person or persons performing the work. I also consider that he should require the person performing the work to keep reasonably detailed diary notes and time sheets which documents should be open to inspection by persons entitled to see them.

16 In succinct terms, a liquidator or insolvency practitioner should provide a document not dissimilar in form to a bill of costs in taxable form. In Venetian, the Full Court stated:[8]

It may well be that in a particular case information particularised as suggested ... would be appropriate. In other cases less detailed information may be required. Each case depends on its own circumstances. But the overriding principle remains: sufficient information must be provided to the Court to enable it to perform its function ...

17 In Venetian, the court criticised the evidence adduced in support of the provisional liquidator's claim. The court observed that it identified in an allembracing fashion certain tasks that were performed, but did not specify who performed the tasks and how long each task took. Many of the tasks were described in such a way that it was impossible to discern why they were necessary, what precisely was involved in performing them, and what level of complexity or responsibility attached to them.

18 In Re Stockford Pty Ltd (subject to company agreement); Korda and Anor (as joint and several deed administrators),[9] Finkelstein J of the Federal Court referred to a decision of the High Court of New Zealand of Re Medforce Healthcare Services Limited (in liq),[10] where the Court stated:[11]

In our view the exercise which must be undertaken by the Court in fixing the reasonable costs of 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 costs charged are reasonable.

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 to be made related to the work done. The detail would have to be sufficient to enable a 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. Their information may in some cases raise concerns as to whether there has been over-servicing or over-charging. If there are suggestions of this in the information provided, the Court can request further information.

19 The spreadsheets prepared by the liquidators have been subsequently annotated by the defendant's solicitor.[12] The first spreadsheet pertains to the period 8 April 2011 to 12 May 2011, the second from 13 May 2011 to 1 December 2011. The objections raised by the defendant are formulaic and generic; they are not specifically tailored to each individual item. They take the form of one of several complaints. They include complaints that insufficient information has been prepared to enable the Court to consider whether this work was reasonably necessary, alternatively, that the claim was excessive or that the time required for the separate tasks within a particular item is not specified so as to enable assessment of the reasonableness of the time spent on the task.

20 Despite the submissions of Mr Sandbach, I consider that the description of the work done in those documents is of a standard which enables me to embark on the task of assessing whether the remuneration sought should be awarded.

21 In coming to that conclusion, I consider that there is a balance to be struck in the level of the detail given in the narration describing the tasks and other details on the one hand and the cost and utility of providing such material on the other.[13] The spreadsheets prepared include details as to the date the identified tasks were performed, the person who performed them, the hourly rate at which that person's time was charged, and a description of the task.

22 The affidavit of Mr Quinn sworn 10 August 2011, identifies the individual members of the liquidators' firm who carried out various tasks in the liquidation by reference to their position in the administrative hierarchy of the firm, together with the hourly rate charged in relation to each such individual. The rate charged for Mr Quinn's time, $570, is in my experience within the range of hourly rates said to be charged by insolvency practitioners in the appendices to consents to act provided by liquidators in winding up applications which come before the Court.[14] A review of the other hourly fees charged for the other persons who performed tasks in Mr Quinn's office, which are set out in paragraph 19 of Mr Quinn's affidavit, fall in with and are consistent with the respective positions of those persons occupied in the hierarchy of the firm. As such, I consider that the hourly rates are appropriate to be applied and they reflect the "market". In my view, however, I am still required to apply the criteria mentioned in s 473(10) in arriving at a final amount to be awarded as remuneration.

23 The objections taken to the initial items in the first spreadsheet include complaints that the work performed was premature or that there is no sufficient information to enable the Court to consider whether the work was necessary. It was also said that, in the alternative, the claim is excessive in numerous instances.

24 As to the necessity point, in my view on a review of the work performed, the tasks described involved the liquidators completing the basic requirements at the commencement of their appointment; the liquidators could indeed have been criticised for not performing such tasks.

25 In item 10, the defendant criticises the liquidators in respect of the preparation for a proposed meeting with the director's brother, Patrick Gallagher (who was said to be familiar with the company's affairs) and taking steps to identify and protect the defendant's assets. It is said that the defendant's solicitor, Mr Goldsmith, requested that all queries be in writing and that he would seek instructions. Mr Quinn's affidavit of 6 May 2011 filed on the occasion of the application to set aside the winding up order exhibits correspondence of 8 April 2011 to the director of the company, Mr Michael Gallagher, in which Mr Gallagher was asked to attend at Mr Quinn's office on 21 April 2011 for the purpose of being interviewed to provide further information as to the defendant's affairs. Mr Quinn states in his affidavit that Mr Gallagher failed to respond to the 8 April 2011 letter, failed to provide a report as to affairs of the company and failed to provide the defendant's books and records. On 2 May 2011, Mr Quinn again wrote to Mr Gallagher pointing out these matters, but again there was no response to that letter. Of course, section 530A(2) and (3) of the Act casts a positive obligation on directors of a company in liquidation to assist the liquidator in the conduct of the winding up.

26 This criticism on the part of the defendant has no foundation. The liquidators are entitled to be dealing with the director of the company directly and there was no obligation at all to be putting matters to the solicitor in writing and waiting for hearsay responses from the solicitor. In addition, to have used that method of communication would probably have added to the costs of the liquidation.

27 Item 16 criticises the liquidator for the cost of a junior member of his staff checking, (at a cost of $14.50) the Australian Taxation Office tax portal. This was said to be unnecessary, alternatively premature. Similar criticisms are made in paragraph 17 when the results of the examination of the tax portal were considered by a more senior employee. This was also said to be unnecessary, alternatively premature. I reject that submission. Ascertaining a company's liability to the Australian Taxation Office is fundamental to obtaining an appreciation to the company's general financial position and as to whether there are any issues in respect of how the affairs of the company have been conducted. As the case law dealing with applications to terminate winding up illustrate, the Court is required to be comprehensively informed as to the financial position of the subject company at such a hearing and be provided with any relevant evidence going to what the cases describe as the "commercial morality" of the company.[15]

28 The assertion that the tasks were unnecessary, alternatively premature may be made with the luxury of hindsight given that the winding up orders were set aside some weeks later but liquidators appointed to any company, no matter what the circumstances, have fundamental tasks, duties and obligations which are required to be carried out notwithstanding assertions that an application will be made to set aside the winding up order.

29 A complaint is made in respect of item 27 (which describes Mr Quinn reviewing the file in preparation for the hearing of the first return of application to have the order for winding up set aside on 15 April 2011) as being unnecessary and excessive. This task was clearly necessary and only occupied 36 minutes of time in any event. Item 31 describes Mr Quinn attending court on the first return of the winding up by himself without engaging and incurring the cost of a solicitor. The complaint is made, in respect of the narration describing his preparation and attendance at the hearing, that it was insufficient to consider whatever work was reasonably necessary. That criticism has no merit in my opinion. Mr Quinn was attending the hearing as an officer of the court who had been appointed as a liquidator. That task is completely justifiable and the narration in this regard is adequate. The period of time claimed, 1.4 hours, is not unreasonable.

30 The assertion that the tasks performed were unnecessary and premature appears in the overwhelming majority of the remainder of the items claimed leading up to the hearing on 6 May 2011. The narration contains in my view sufficient detail for me to conclude that such assertions are not made out; the liquidators describe relatively unremarkable matters which would be expected and required to be performed notwithstanding, if not because of, the hearing on 6 May 2011.

31 In the period leading up to the hearing on 6 May 2011, the liquidators make claims for remuneration in respect of preparation and attendance at the hearing, including preparation of the necessary affidavit material. Most of the tasks in that period were conducted by Mr Meijer, who is described as a "senior" in the liquidators' office. I have reviewed the narrative relating to the work performed by Mr Meijer and I am satisfied, contrary to what the defendant asserts in the generic narrative adjacent to those entries, that the tasks described were necessary to be performed and that the time spent was appropriate.

32 The defendant makes the criticism that the time required for the separate tasks within each such item is not specified so as to enable the Court to assess the reasonableness of the time spent on each task. While this may have some merit, I consider that it is still possible when one has regard to the total time spent for the item, to assess whether or not the collective tasks described under that item would have reasonably occupied the time claimed. In my view, the time spent for the tasks identified was reasonable and it was appropriate that someone of Mr Miejer's position in the hierarchy of the liquidators' firm perform those tasks. Mr Miejer was assisted in the clerical tasks by Ms Amour, a clerk at the liquidators' office, who occupies the most junior position in the firm's hierarchy for which claims are made. Mr Quinn makes a claim for 3.2 hours for his involvement in connection with the preparation of the affidavit filed with the Court, together with his costs of attendance at the hearing which I consider to be reasonable.

33 A claim is then made for a series of tasks carried out after 6 May 2011 associated with the aftermath of the setting aside of the winding up orders. Again, the tasks were mainly performed by Mr Meijer, with the assistance of more junior staff, Ms Amour and Ms Benoit (who is described as "graduate"). I consider that they are the type of tasks which one would expect to be performed consequent on the setting aside of a winding up order, that the time spent was reasonable and that it was performed by persons of an appropriate station in the liquidator's firm. Mr Quinn was only occupied for some 36 minutes in the tasks he describes at Item 77 of the spreadsheet. The charge claimed is reasonable.

34 The total for remuneration claimed in the first spreadsheet is $14,981.50 excluding GST. I consider that on an application of the criteria prescribed by section 473(10) (a) and (c), the tasks described in the first spreadsheet were reasonably necessary to be performed and that the time taken for their performance was reasonable. I will return to this part of the claim when I come to consider the application of the matters mentioned in section 473(10) (d) to (k) below.

35 The second spreadsheet is in respect of the period 13 May 2011 to 1 December 2011 and details claims for remuneration totalling $12,990, excluding GST. The early part of the time frame with which that spreadsheet is concerned describes further somewhat menial clerical tasks consequent upon the termination of the winding up order. The tasks consisted of filing documents and other incidental matters. In my opinion, the narrative reveals that those items were carried out by the persons occupying the appropriate station in the hierarchy of the liquidator's office and the charges ($728.50) are relatively insignificant. In my view the tasks were reasonably necessary and were performed in reasonable time.

36 The balance of the items claimed are concerned with Mr Quinn's involvement in the preparation for the current application. A question arises as to whether Mr Quinn should be awarded remuneration for such matters. My researches reveal that this issue has had limited judicial consideration. In Re Reiter Brothers Exploratory Drilling Pty Ltd; ex parte Andrew Charles Robert Lee,[16] Zeeman J of the Supreme Court of Tasmania considered that a provisional liquidator was entitled to be awarded remuneration for work necessarily done in complying with the law subsequent to the termination of his appointment. Zeeman J also held that the work done in preparing the claim for remuneration was susceptible of an award for remuneration. At pages 441-442 he observed:

A very large proportion of the remuneration claimed relates to the work done by the applicant to prepare his claim for remuneration. On my assessment, in excess of $11,000 is claimed for such work. Counsel for the Company submitted that no part of it, whether done before or after the termination of the applicant's appointment, ought to form part of the remuneration to be fixed by me that it ought to be treated as being part of the costs of the application. I do not accept that submission. The dictum from Day v Mount (supra) to which I have referred would suggest the contrary to be the case. It is difficult to see how remuneration of such work would form part of the costs of the application in a normal sense. In my view, work properly done by the applicant by way of preparing his claim for remuneration falls to be dealt with as part of his remuneration.

37 Zeeman J went on to state that it did not follow that the whole of the amount claimed by the applicant liquidator in that case ought to be allowed to him, chiefly for two reasons. The first was that his Honour had earlier concluded in his reasons that the liquidator had done a substantial amount of work which he did not have to perform in the liquidation for which he ought not be remunerated, and in so far as he did work in preparing that part of the claim for remuneration, it was not appropriate to remunerate him for it. Secondly, his Honour criticised the volume of material filed in support of the liquidator's application for remuneration.

38 I now move to consider whether the items claimed in respect of the application for remuneration by Mr Quinn and his assistants were necessary and appropriate and whether the amounts claimed are reasonable.

39 If the amounts being charged for tasks associated with the conclusion of the liquidation ($728.5) are deducted, the amount claimed for remuneration in connection with this application is $12,391.75 excluding GST. Of this, Mr Quinn was said to be occupied for nearly 14 hours at a cost of $7,923, with the bulk of the work being carried out by Mr Meijer, who is said to have been occupied for 13 hours at a total cost of $3,250. I consider that this amount is disproportionate when one has regard to the fact that the remuneration being sought for the month long period when the liquidators were in office is only slightly more - $14,981.50. The compilation of the spreadsheets was no doubt a tedious exercise but I consider that it is has taken too long to complete the task and in my view the amount claimed is not reasonable.

40 I consider that it is appropriate to allow the following amounts in respect of the individuals carrying out the tasks described in connection with the remuneration application as follows:

41 In coming to that determination, I consider that Mr Quinn, given the higher rate being charged for his hourly time, should have delegated more tasks down the line. Presumably the liquidators had timesheets and file notes from which the spreadsheets were prepared which, for the main part, involved extraction of information from those timesheets and insertion onto the spreadsheets together with the composition of accompanying additional narrative. No doubt Mr Quinn had to oversee the ultimate product of those efforts but I consider that only 4.5 hours ($2,565) should be allowed for his involvement. For the same reason, I have reduced the allowance of the time to be allowed to Mr Meijer to complete the tasks he has described to 6 hours ($1,500). I will not reduce the claims made in respect of the tasks performed by the junior staff. Thus, the amount of remuneration to be charged in connection with this application for remuneration is reduced to $5216.50. I will allow the claim in respect of the matters required to be carried out to conclude the liquidation ($728.50) and accordingly, the amount of the claims made on the second spreadsheet is reduced to a total of $5945.

42 The above analysis is, for the main part, concerned with a consideration as to whether the work performed by the liquidators was reasonably necessary and whether the time said to have been taken to perform such tasks was appropriate. I now turn to consider the application of the other criteria mentioned in s 473(10) ("the remaining criteria")[17] which are contained in s 473(10)(d) to (k).

43 Adopting the lettering of sub-section (10), my views as to the application of the remaining criteria are as follows:

"(d) the quality of the work performed, or likely to be performed, by the liquidator"

The quality of the work performed was unremarkable in the sense that it met the requisite standard for the tasks being performed.

"(e) the complexity (or otherwise) of the work performed, or likely to be performed, by the liquidator;

(f) the extent (if any) to which the liquidator was, or likely to be, required to deal with extraordinary issues;

(g) the extent (if any) which the liquidator was or was likely to be required to accept a higher level of risk or responsibility than is usually the case; and

(h) the value and nature of any property dealt with, or likely to be dealt with, by the liquidator;"

In my opinion these criteria are concerned with very similar concepts and it is appropriate in these circumstances to deal with them collectively. The liquidation was of one month's duration, the work required to be performed was not at all complex and it did not involve any extraordinary issues or acceptance of a higher level of risk or responsibility than is usually the case in an insolvency administration. The liquidators were not required to deal with property of any significant value.

"(i) where the liquidator was or is likely to be required to deal with

(i) one or more receivers; or

(ii) one or more receivers and managers"

No receivers were appointed during the administration.

"(j) the number, attributes and behaviour, or the likely number, attributes and behaviour, of the company's creditors"

The creditors totalled approximately $60,000 in value. There is no evidence that by reason of the number, attributes or behaviour of them, the level of responsibility or the complexity of the liquidation was heightened.

44 I consider that the amount claimed by the liquidators which is tabulated in the first spreadsheet and which totals $14,981.50 should on an application of the remaining criteria be reduced by 15% by reason of it being a relatively unremarkable liquidation involving low risk and responsibility resulting in a reduction in the amount of remuneration that I will award to $12,734.27.

45 As to the period the subject of the second spreadsheet, I have reduced the amount claimed by the liquidators to a figure of $5945 to reflect what I regard as a reasonable amount for the work performed. On an application of the remaining criteria set out in s 473(10), I will also reduce that amount by 15% resulting in an award of remuneration of $5053.25.

46 Pursuant to section 473(3) of the Corporations Act (2001) (Cth) I determine that the remuneration which Clyde Peter White and David Charles Quin are entitled to receive as liquidators of Investment and Construction Enterprises Pty Ltd is $17,787.52 excluding GST.

[1] All references to section numbers are to the Corporations Act 2001 unless otherwise indicated.

[2] (1998) 16 ACLC 1653 ("Venetian").

[3] Venetian (1998) 16 ACLC 1653, 1655-1657.

[4] Venetian (1998) 16 ACLC 1653, 1657.

[5] Venetian (1998) 16 ACLC 1653, 1657 (citations omitted).

[6] [1992] Qd R 182 ("Solfire")

[7] Solfire [1992] Qd R 182, 191.

[8] Venetian (1998) 16 ACLC 1658-9.

[9] [2004] FCA 1682; (2004) 52 ACSR 279 ("Re Stockford").

[10] [2001] 3 NZLR 145 ("Medforce").

[11] Re Stockford [2004] FCA 1682; (2004) 52 ACSR 279, [48]; Medforce [2001] 3 NZLR 145, 155.

[12] At the hearing of this application on 7 February 2012, Mr Quinn verified such documents on oath.

[14] Formerly, the Insolvency Practitioners Association of Australia published a schedule each year noting recommended fees but it has not done so for some time. Such rates were regarded as being appropriate to apply in Venetian (1998) 16 ACLC 1653, 1661.

[15] Re Warbler Pty Ltd (1982) 6 ACLR 526; Krextile Holdings Pty Ltd v Widdows [1974] VicRp 83; [1974] VR 689.

[16] [1994] TASSC 42; (1994) 12 ACLC 430.

[17] The approach taken by Finkelstein J in the Re Stockford case preceded the enactment of s 473(10) which was introduced by the Corporations Amendment (Insolvency) Act 2007 No 132 of 2007. As such, the discussion which occurs in that case concerning the arrival at a "loadstar" figure which is then the subject of a reduction or increase, as the case may be, has been replaced by the statutory criteria mentioned in s 473(10). However, the exercise required to be carried out is very similar.