Plaintiff v Defendant

1 The plaintiff, Mr Andrew Poulter, who is the liquidator of Haulton Construction Services Pty Ltd ('the Company') makes application for a review of his remuneration under s 504 of the Corporations Act 2001 ('the Act') and O 9.4A of the Supreme Court Corporations Rules 2003 ('the Rules').

2 The originating process seeks orders, first that Mr Poulter's remuneration, exclusive of GST, for the period 17 July 2009 to 31 March 2013, be fixed in the sum of $440 139.50 exclusive of GST. An order also is sought fixing Mr Poulter's remuneration for work performed or to be performed on or after 1 April 2013 to the conclusion of the liquidation to be calculated on the basis of the hours worked by Mr Poulter and his staff at their applicable hourly rates, capped at a maximum amount of $60 000 exclusive of GST.

3 The plaintiff relies on the affidavits of Mr Poulter sworn 1 May 2013 and 28 May 2013. The plaintiff also relies on the affidavit of Jennelyn Robinson, sworn 28 May 2013, and two affidavits of Shaun Rowland, sworn 28 and 29 May 2013, in relation to service of the requisite notice and documentation on the parties required to be served with this application.

4 The affidavits of service of the application establish that there has been practicable service of the requisite information on the relevant persons mentioned in r 9.4A(3), in particular, those creditors who were present at the meetings of creditors at which the remuneration was determined or fixed, and for which this review is sought, and each member of the Company whose shareholding represents at least 10 per cent of the issued capital of the Company. Two of the envelopes containing such documents addressed to two creditors were returned and those creditors were then served at what were apparently alternative addresses for those creditors.

5 Despite service on the persons required to be notified, no person has appeared to oppose Mr Poulter's application.

6 Mr Poulter was appointed the liquidator of the Company pursuant to a special resolution of the Company's members pursuant to s 491(1) of the Act on 27 July 2009. The Company's sole director is Anthony John Weinberg. George Andrew Holt purportedly resigned as a director on 14 December 2011.

7 The Company carried on business providing engineering and construction services. It ceased trading immediately prior to Mr Poulter's appointment. In the year leading up to the appointment of Mr Poulter, disputes arose within the Company in relation to equalisation of shareholders' drawings, alleged spending of Company funds for personal purposes, alleged charging of the Company for the purchase of building materials for personal use, and entering into new equipment leasing agreements which were allegedly unnecessary.

8 In the second half of 2008, the Company began to face increasing financial pressures and one of the directors, Mr Holt, alleged those pressures were partly caused by the other director, Mr Weinberg, being involved in excessive personal spending from Company funds. Mr Weinberg denied those allegations and alleged that the Company's financial pressures arose through Mr Holt's mismanagement of major projects.

9 In December 2008, steps were taken to identify a buyer for the business. The Company conducted advanced negotiations with Comdain Civil Constructions Pty Ltd regarding the sale of the business.

10 In January 2009, Mr Holt obtained leave from the Supreme Court of Victoria to issue proceedings on behalf of the Company against Mr Weinberg.

11 The internal dispute between Mr Holt and Mr Weinberg was the subject of mediation, at which an agreement was struck to sell the business by early March 2009, failing which an administrator would be appointed. Notwithstanding the fact that a buyer could not be identified, an administrator was not appointed and the Company continued to trade.

12 On 14 May 2009, Haulton Constructions (Aust) Pty Ltd ('HCA'), a company which is now in liquidation, was incorporated for the purpose of acquiring certain of the Company's assets. At the date of its incorporation the directors of that company were a Ms Hoddinott and a Mr Llewellyn, who is a business associate of a Denis O'Haire, a bankrupt. Mr O'Haire was the principal of Heydon O'Loghlen Lawyers Pty Ltd (in liquidation).

13 In May 2009, HCA, Mr Weinberg, and Mr Weinberg's associated entities agreed that HCA would acquire the Company's electrical mechanical construction and water systems assets and contracts, and that another company, Weinberg Pipe and Civil Pty Ltd, would acquire the Company's assets and contracts related to its pipeline construction division. That agreement was executed on 19 May 2009.

14 Between that date and 27 July 2009, the parties worked towards settlement of the contracts, but delays were caused by reason of one of the parties' failure to raise sufficient funds to pay out the secured creditor, Bendigo and Adelaide Bank Ltd. The remainder of the events which occurred in and about this transaction are detailed in Mr Poulter's principal affidavit. It culminated in the directors calling a meeting of shareholders, who resolved to immediately wind up the Company pursuant to s 491(1) of the Act. Mr Poulter was nominated to act as the liquidator.

15 The tasks which Mr Poulter carried out after his appointment are detailed in his principal affidavit in paragraphs 38 to 93. It would be fair to say that it has not been a routine liquidation. Among other tasks, it involved making application to wind up HCA in the Federal Court of Australia. HCA sought to adjourn the winding up application on the basis that it had appointed administrators. On the return of the winding up application, despite Mr Poulter's opposition, the application was adjourned by Gordon J of the Federal Court of Australia. Ultimately, on 12 May 2011, HCA was ordered to be wound up by reason that there was no proposal for a deed of company arrangement, nor was there any evidence that it was in the creditors' interests to further adjourn the winding up application.

16 In addition to such matters, between late July 2009 and midSeptember 2009 Mr Poulter was involved in trying to recover the Company's outstanding work in progress. Ultimately, $212 100.90 was recovered.

17 One of Mr Poulter's major tasks during the winding up was the recovery of voidable transactions under Part 5.7B of the Act, of which 44 potential unfair preference claims were identified. These were pursued in three tranches. The first involved 15 claims with a gross value of $849 929.61, which were ultimately settled for $520 040.44. The second tranche involved six matters with a gross value of $156 238.25, which resulted in gross settlements of $106 735.26 being recovered (this was reduced by reason of the failure of one party to adhere to a settlement agreement). The third tranche of preference claims involved 23 claims with a gross value of $410 766.84 involving 20 creditors. This resulted in gross recoveries of $160 650.85. The level of complexity of such preference claims is not elaborated upon, but it could be said that, by virtue of the scale and the number of claims involved, it involved a level of responsibility and the exercise of commercial judgment above the ordinary.

18 On 18 August 2009, the first meeting of creditors of the Company in liquidation was held at which Mr Poulter's remuneration was approved prospectively in the sum of $100 000. As at 17 August 2009, Mr Poulter's accumulated time costs were $27 861.

19 On 22 March 2010, the creditors were sent a copy of Mr Poulter's remuneration report which outlined work undertaken during the period 27 July 2009 to 28 February 2010 and detailed the tasks expected to be undertaken in the future, particulars of time costs and the tax invoice recording his professional fees.

20 On 14 April 2010, a second meeting of creditors was held at which Mr Poulter's remuneration was approved prospectively in the sum of $250 000. The creditors also approved an increase in the scale of fees to apply from 1 March 2010. As at 13 April 2010, Mr Poulter's accumulated time costs were $150 916.

21 On 26 October 2010, an annual report was sent to the creditors attaching a remuneration report, which included a summary of tasks undertaken from 1 March 2010 to 30 September 2010, the tasks expected to be undertaken in the future, the calculation of remuneration and the summary of time costs.

22 On 16 November 2010, an annual meeting of creditors was held at which the creditors approved Mr Poulter's remuneration prospectively in the sum of $350 000. As of the day before, his accumulated time costs were $252 381.

23 On 25 October 2011, a second annual report was sent to the creditors, which attached a remuneration report summarising the tasks undertaken from 1 October 2010 to 30 September 2011, the tasks expected to be undertaken in the future and a calculation of remuneration. By 30 September 2011 the time costs had increased to $362 899.50. This was said to have occurred by reason of, amongst other things, the work performed as a result of HCA breaching its obligations to pay a superannuation guarantee debt, negotiating with HCA's director and professional advisers, and instructing solicitors to serve a statutory demand on HCA, and other matters which are detailed in paragraph 95 of Mr Poulter's affidavit.

24 On 10 November 2011, at the second annual meeting of creditors, the following resolution was put to the meeting:

That the cap on the liquidator's remuneration approved by creditors on 16 November 2010 be increased by $100 000 to a total of $450 000 (excluding GST).

The resolution did not pass, but a resolution was passed adjourning the meeting for 14 days to 24 November 2011 for the purpose of bringing to the creditors' attention the effect of failing to approve the remuneration.

25 On 17 November 2011, a further report was sent to the creditors for the purpose of consideration at the adjourned meeting on 24 November 2011. The effect of not approving the remuneration was explained at the meeting. The following resolution was put:

That the cap on the liquidator's remuneration approved by creditors on 16 November 2010 be raised by $100 000 to a total of $450 000 (excluding GST).

26 On 14 August 2012, a third annual report was sent to creditors, again attaching a remuneration report summarising tasks undertaken from 1 October 2011 to 31 July 2012, and the tasks expected to be undertaken in the future and the calculation of remuneration. By 31 July 2012, the time costs had increased to $422 738. The reasons for that are detailed in paragraph 103 of the affidavit of Mr Poulter.

27 On 30 August 2012, at the third annual general meeting of creditors, an explanation was given as to the effect of the remuneration not being approved, and a resolution was put seeking that the cap of approval by creditors on 16 November 2010 be raised by $130 000 to a total of $480 000. Again, the resolution did not pass, and the creditors were advised that Mr Poulter had no option but to seek court approval for his remuneration.

28 Thus, the creditors have approved prospectively a cap to Mr Poulter's remuneration of $350 000 as of 16 November 2010, but have since declined to approve of any increase despite a number of resolutions being put at creditors' meetings in that regard. Mr Poulter estimates that as at 31 March 2013, the total time costs attributable to seeking the creditors' approval of remuneration was approximately $46 078.

29 The winding up of the Company ultimately became a creditors' voluntary winding up and the relevant provisions in respect of the remuneration of the liquidator are to be found in Division 3 of Part 5.5 of the Act. Section 499(3) provides:

The remuneration to be paid to the liquidator may be fixed:

(a) if there is a committee of inspection - by that committee; or

(b) by resolution of the creditors.

(1) Any member or creditor, or the liquidator, may at any time before the deregistration of the company apply to the Court to review the amount of the remuneration of the liquidator, and the decision of the Court is final and conclusive.

(2) In exercising its powers under subsection (1), 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 liquidator was reasonably necessary;

(b) the extent to which the work likely to be performed by the liquidator is likely to be reasonably necessary;

(c) the period during which the work was, or is likely to be, performed by the liquidator;

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

(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 is likely to be, required to deal with extraordinary issues;

(g) the extent (if any) to which the liquidator 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 liquidator;

(i) whether 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;

(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 liquidator in performing the work; and

(ii) whether the total remuneration payable to the liquidator is capped;

31 Practicably, the application involves a review of the remuneration fixed by the creditors at the meetings described above.

32 In Thackray v Gunns Plantations Ltd,[1] Davies J, then of the Supreme Court of Victoria, summarised the principles to be applied in applications regarding insolvency practitioners' remuneration by reference to the decision of the Full Court of the West Australian Supreme Court in Venetian Nominees Pty Ltd v Conlan[2] as follows:

(a) A summary procedure is involved, not unlike that applicable to the taxation of solicitors' costs, which is not necessarily subject to all the rules that would apply in an action.

(b) The initial task of the Court is to consider whether the liquidator has made out a prima facie case on the evidence before the Court that the remuneration claimed is fair and reasonable. The Court must make that assessment "bringing an independent mind to bear on the relevant issues" even though at that point there is no objector.

(c) There is no absolute rule regarding the amount of detail required to support a remuneration claim. But the evidence relied on should be sufficient to enable potential objectors to review the amounts claimed and ascertain whether there are matters to which objection should be taken. If there is inadequate evidence supporting the claim, no order should be made.

(d) If the liquidator establishes a prima facie case, the Court should allow for an objection procedure to enable objections to be made.

(e) If there are objectors to the claim or any part, the Court should then establish the validity of those objections.

...

Nevertheless, the receivers accepted that the principles set out [in] Venetian Nominees Pty Ltd are persuasive and that they should put sufficient evidence before the Court to enable the Court to determine that the amounts claimed are fair and reasonable. That involved providing sufficient detail of the work that was done and the expenses claimed for the Court to assess the reasonableness of the remuneration claimed for that work and the reasonableness of the expenses incurred by the receivers. The reasonableness of remuneration may be adduced by evidence for example of an appropriate benchmark, such as the Insolvency Practitioners Association of Australia rates, for comparative work by persons with the relevant status and qualifications for that kind of work and justification of the hours spent. That amount can then be adjusted up or down to reflect other factors including:

(a) complexity above the norm for the kind of work involved;

(c) the ultimate outcome obtained by the claimant.

The Court is looking for evidence of overcharging. Excessive charging may be indicated if there is a lack of proportionality between the cost of the work done relative to the value of the services provided. But there is no universal approach applicable in all circumstances by which the "reasonableness" of remuneration claimed or expenses incurred should be measured. The size, importance and complexity of the tasks performed are all factors to be taken into account. What is needed is sufficient information for the Court and any objector to have a clear view about what was done so that an assessment can be made about the reasonableness of the claim.[3]

34 In ASIC v Australian Foods Co Pty Ltd,[4] in an application for remuneration by a court appointed receiver and manager, the receiver/manager put forward a detailed statement of time, costs and disbursements (which he confirmed was true and correct) itemising the details of the work done, the identity of the persons who did the work, the grade of the person who did the work and the time taken for doing the work, and the rates charged. The annexures to the supporting affidavit provided considerable detail as to what was done. Master Sanderson stated at [16]:

There is nothing surprising in any of this material. Clearly, it is drawn from time sheets maintained by each of the individuals concerned. If necessary, those original time sheets could be called for, but in all probability they would add little to the information provided by the receiver. The way in which the receiver and his staff have recorded the time spent accords with standard commercial practice. The actions taken by each individual concerned are adequately, if cryptically, described. It is difficult to see what further information could have been provided.

35 Master Sanderson concluded that the information provided established prima facie that the work was done and the costs were reasonably incurred. His reservations were first, that the material did not provide a sense of what the receiver and his colleagues were attempting to achieve and the overall purpose behind those actions, and, secondly, the fact that such significant costs had been incurred in a relatively short space of time.

36 In Re ACN 004 323 184 Pty Ltd v Spark,[5] Dodds-Streeton J considered an application for remuneration under section 473(3)(b) of the Act . In the affidavit in support of the application, the liquidator summarised the tasks performed by each staff member with that person's charge rate, level or position, hourly rates and total hours worked, together with full descriptions of the work performed. At [43], her Honour stated:

I accept Mr Woodward's submission that the material adduced by the respondent in this case satisfies the requirements of r 9.4(7) of the Corporations Rules. It also satisfies the basic principle of Venetian Nominees, in that there is sufficient information provided for the Court to determine that the amounts claimed are fair and reasonable . The material sets out the person performing the work, the grade or level of the relevant person , the task and dates, time spent on the task and the relevant rate according to the level of the person carrying out the task. It is undisputed that the work was carried out for the purpose of the winding up.

37 In this instance, in his principal affidavit, Mr Poulter identifies by name the persons who carried out the work during the winding up of the Company. The work performed by those persons was recorded in timesheets, and those timesheets are contained in exhibit AWP22 to Mr Poulter's affidavit. They contain the timesheets of the liquidation for the period 27 July 2009 to 31 March 2013. Mr Poulter states his belief that the tasks described were completed by people with appropriate experience relevant to the tasks in order to keep costs at an appropriate level and that the tasks carried out were reasonably necessary and completed in a timely manner. He states that at all times, where persons other than himself performed work in the winding up, he supervised and directed the tasks to be carried out. He states that he has calculated the remuneration for work completed based on the number of hours worked by each person engaged in the winding up and their applicable hourly charges. I note that he deposes that, where he has carried out work and the work could have been carried out by someone else with less seniority, he has reduced his fees accordingly by applying the hourly rate applied to that person's time.

38 In paragraphs 113 and 114 of his affidavit, he sets out the fee scales which were applied to arrive at the remuneration figure sought. I have reviewed those tables and the hourly rates charged appear to be appropriate in regard to the rates charged by liquidators for their remuneration and that of their staff. The hourly rate of the principal of the firm, Mr Poulter, of $395 and $495 respectively, is within the range or the 'market' of hourly rates which are charged by insolvency practitioners in the numerous appendices that I sight in consents to act provided by liquidators in winding up applications which come before me in the Corporations List. A similar position applies, in my view, to the other members of the hierarchy in Mr Poulter's staff, having regard to the position that those persons occupy in his firm.

39 Those persons and the positions they held at Mr Poulter's firm are as follows:

The timesheets in exhibit AWP 22 consist of 76 pages of material. A typical entry identifies the operator who performed the work described, the date it was performed, the time occupied, the hourly rate applied, and a narration as to the task performed. As appointee, Mr Poulter has performed more than what I would expect to be the usual range of tasks in the liquidation, on occasion quite run of the mill activities but, as he has said, the exhibit reveals that he has charged a lower rate where he at least considers that his rate as principal could not be justified having regard to the task which was performed. For example, there are occasions where he has reduced his rate to that of a senior manager when performing lower level work. On some occasions he has reduced his rate to that of a supervisor, which is halfway down the hierarchy of staff at Mr Poulter's firm, and on other occasions he has charged the rate applicable to a senior accountant. The narration describing those tasks indicates that a reduction in the hourly rate charged was appropriate.

40 I have not examined each and every entry in the exhibit, and my approach has been to randomly choose 60 entries in the spreadsheet and examine them closely with a view to assessing whether the work described was reasonable and necessary, whether the time taken for the task appeared to be reasonable, and whether it was performed by a person who was appropriate for that task, or at least the hourly rate charged and time occupied in the task described was reasonable having regard to the narration for that entry. When I say random, I have chosen the items where more than $200 has been charged.

41 As best as I can determine, the spreadsheets do not reveal any obviously unnecessary tasks being performed, and it appears that the tasks as described were performed by an appropriate person in the hierarchy of the firm or at least that an appropriate hourly rate has been charged.

42 Section 504(2) of the Act requires the Court to take into account the various matters mentioned in sub paragraphs (a) to (l). Sub paragraphs (a), (b) and (c) are, in substance, concerned with an assessment as to whether the work performed and described in the liquidator's evidence was reasonable and necessary and whether the time taken for the task described was reasonable. My review of the material, using the random approach I have described, does not reveal performance of any tasks which were obviously unnecessary to be performed or for which the time engaged appears to be unreasonable.

43 Subparagraph (d) of s 504(2) deals with the quality of the work performed by the liquidator. There is no evidence to suggest that it did not meet the requisite standards.

44 Subparagraphs (e), (f), (g) and (h) provide as follows:

(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 is likely to be, required to deal with extraordinary issues;

(g) the extent (if any) to which the liquidator 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 liquidator;

As I have said, Mr Poulter's affidavit reveals that the liquidation in this instance was more complex and involved more responsibility than a run of the mill administration. He was required to pursue numerous voidable preference claims, although it is not clear how complex this litigation was. As some measure of the complexity of the liquidation, Mr Poulter states that he has incurred disbursements of $413 773.59. He has collected the sum of $1 193 061.33, presumably the majority of which was realised from the 44 voidable transaction claims and the work in progress claim.

45 As to the remaining discretionary grounds set out in s 504(2), the section provides:

(i) whether 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;

(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 liquidator in performing the work; and

(ii) whether the total remuneration payable to the liquidator is capped;

The materials do not reveal interaction with receivers. There were numerous creditors. There were tensions with some of those creditors, who as has been said declined to approve, as they were entitled, Mr Poulter's remuneration.

46 In my view, an application of the criteria results in a conclusion that the amount sought for remuneration and set out in the time sheets should not be reduced from the sum claimed. Of course, the creditors have, at the meetings described above, approved of a substantial proportion of the amount which is sought. The last such approval was to a cap of $350,000 in November 2010.

47 The second part of the application seeks an order that I fix the remuneration of Mr Poulter for work performed or to be performed on and after 1 April 2013 to the conclusion of the liquidation, to be calculated on the hours of work by him and his staff at their applicable hourly rates, capped at the maximum amount of $60 000 exclusive of GST.

48 At the hearing of this matter, I enquired of Mr Kohn of counsel for Mr Poulter what power I had to make such an order. Section 504 of the Act is cast in terms of a review, and as I observed to Mr Kohn, I do not consider that I can review something that has not yet occurred. He conceded that this was a difficulty, and that the only other section under which the liquidator could potentially apply was s 511. Section 511 (1) states:

(1) The liquidator, or any contributory or creditor, may apply to the Court:

(a) to determine any question arising in the winding up of a company; or

(b) to exercise all or any of the powers that the Court might exercise if the company were being wound up by the Court.

I do not consider that that provision is of any assistance to the liquidator in these circumstances, as it is designed to enable approaches to be made to the court where the liquidator requires directions as to the administration of the liquidation. Mr Kohn referred me to the decision of Gyles J in Re Gidley,[6] a case concerned with s 449E of the Act, which deals with an administrator's entitlement to remuneration. Gyles J held that that provision contemplates prospective fixing of remuneration, at least in many cases. His reasons for that view are set out at paragraph 28 and following, but I do not consider they have any application in this instance.

49 In the absence of the identification of a specific statutory ability to fix remuneration prospectively, I decline to make such an order. In this regard, I am also influenced by the fact that in this case the priority creditors, the employees, will be substantially affected by the making of such an order, since the funds which are sought to be applied to such prospective remuneration will encroach on and deplete the dividend to those employees and may, indeed, even result in there being no dividend to them at all in the winding up.

50 In my view, it is appropriate for the liquidator to make a further application for remuneration on proper material when the subject tasks have been performed in order that a court could be satisfied that such activities were justified.

51 I will order pursuant to s 504 of the Act, on a review of the remuneration fixed and capped at the meeting of the creditors of the company, that the plaintiff's remuneration, excluding GST, as liquidator in the winding up of Haulton Construction Services Pty Ltd (in liquidation) for the period 17 July 2009 to 31 March 2013 be fixed in the sum of $440, 139.50 exclusive of GST. I will also order that the costs of this application be costs in the winding up of Haulton Construction Services Pty Ltd (in liquidation).

[1] (2011) 85 ACSR 144.

[2] (1998) 20 WAR 96 ('Venetian Nominees').

[3] Thackray (2011) 85 ACSR 144 (citations omitted).

[4] [2005] WASC 110 ('Australian Foods').

[5] [2002] VSC 353.

[6] [2006] FCA 102.