Plaintiff v PAUL ANTHONY COHRS & ORS

2 By orders made by Riordan J on 2 October 2020, the Remuneration Approval Request was referred to me for determination on the papers, unless otherwise ordered ('2 Oct Orders'). Those orders also relevantly include the following:

(a) the First Defendant is to file and serve any notice of objection to the Remuneration Approval Request, which specifies each objection and provides proper particulars of its grounds, by 4.00 pm on 14 October 2020; and

(b) the Receivers are to file and serve a written response to any notice of objection to the Remuneration Approval Request by 4.00 pm on 28 October 2020.

3 On 15 October 2020, my Associate received an email from the Receivers' solicitors, advising that they had not been served with any notice of objection from the First Defendant, requesting that the Remuneration Approval Request be approved on the papers, and stating that the other parties to the proceeding had indicated that they had no objection to the Remuneration Approval Request.

4 On my instruction, on 22 October 2020, my Associate informed the parties that as the time for the First Defendant to file and serve any notice of objection to the Remuneration Approval Request by the time set out in the 2 Oct Orders had now passed, I would determine the Remuneration Approval Request on the papers and on the basis of the materials already filed in respect of it.

5 For the reasons set out below, the Remuneration Approval Request is granted and the Court will make orders approving the Receivers' remuneration for the Second Period in the amount of $614,897.50 (excluding GST).

6 By orders made by Kennedy J on 1 March 2019 ('Appointment Orders'), the Receivers were appointed without security as joint and several receivers and managers of the following:

(a) the property, assets, undertaking and business of the Second Defendant (whether in its own right or as trustee of the Cohrs Family Trust), other than two specified properties;

(b) the property, assets, undertaking and business of the Fourth Defendant (whether in its own right or as trustee of the Cohrs Unit Trust);

(c) the property, assets, undertaking and business of each of the Third and Fifth Defendants; and

(d) the assets and undertaking held jointly by the Plaintiff and the First Defendant trading as the R&P Cohrs Partnership ('Partnership'), which included eight specified properties and funds standing to the credit of four specified bank accounts.

7 For convenience, I shall refer to each of the entities to which the Receivers were appointed as the Companies, unless it is necessary to distinguish between them.[2]

Realisations/receipts/payments of or made by the Receivers

8 As will be explained in more detail later in these reasons, the Receivers continued to trade the various businesses operated by the Companies until the businesses and/or assets were sold.

9 The Receivers Report contains information about the asset realisations and receipts and payments, broken down in respect of each of the Companies. A net amount of $7,346,599 (after distribution to the secured creditor) was achieved from the realisation of the Companies' assets, being the businesses, properties and other assets (such as shares and water rights).[3] In respect of trading operations, total receipts of $17,239,225 were received and payments of $17,323,043 were made, producing net receipts/payments of ($83,818). In respect of non-trading operations, total receipts of $10,606,233 were received and payments of $5,699,577 were made, producing net receipts/payments of $4,906,656. As at 31 August 2020, the total closing cash balance was $5,122,098.[4] This is summarised in the following table of receipts and payments as at 31 August 2020, which is drawn from Annexure B to the Receivers Report.

Receivers' Remuneration since their appointment

10 The Receivers' remuneration for the period from their appointment to 25 October 2019 ('First Period') was approved in the amount of $916,458, by orders made on 8 November 2019 by Riordan J. The remuneration sought for the Second Period is $614,897.50. This gives a total of $1,531,355.50 for the period from the Receivers' appointment to 11 September 2020.

11 The below table sets this out for each of the Companies:

Source of power/jurisdiction to make the orders sought

12 The Court's power to approve the Receivers' remuneration derives from its inherent jurisdiction, having had the power to appoint the Receivers in the first place pursuant to s 37 of the Supreme Court Act 1986 (Vic), and from r 39.02 of the Rules.

13 The Appointment Orders included the following order in relation to the Receivers' remuneration ('Remuneration Order'):

7.1 until further order, are entitled to be remunerated on a time basis at the rates set out in the Schedule of Hourly Rates forming part of the exhibit "MEL-23" to the affidavit of Michael Edward Lhuede sworn 28 February 2019; and

7.2 are entitled to draw such remuneration as may be approved by the Court.

14 As a consequence of the above, the Receivers cannot be paid their remuneration without the approval of the Court, and the Court has jurisdiction to make orders in this respect.

The Court's approach to fixing the Receivers' remuneration

15 Gleeson JA, in In the matter of Banksia Securities Ltd (in liq) (receivers and managers appointed),[5] set out the relevant legal principles for the Court's approach to approving the remuneration of court-appointed receivers, as follows:[6]

First, a useful statement of the principles applicable to applications by court-appointed receivers for approval of remuneration is to be found in the judgment of Young CJ in Eq in Ide v Ide (2004) 184 FLR 44; [2004] NSWSC 751. It may be summarised as follows (omitting references to the various authorities cited by his Honour):

1. The court constituted by a judge never considers a review of quantum, but only matters of principle.
2. A receiver is entitled to have his costs, charges and expenses properly incurred in the discharge of his ordinary duties or in the performance of extraordinary services that have been sanctioned by the court.
3. The receiver must justify the reasonableness and prudence of the tasks undertaken for which remuneration is sought. The relevant onus is on the receiver.
4. A receiver's remuneration is not in the same category of costs. The receiver is making application for a fair recompense for what he or she has actually done.
5. The court's objective is to award a sum or devise a formula which will reasonably compensate the receiver for the time and trouble expended in the execution of his duties and, to some extent, the responsibility he has assumed.
6. The court will usually work off time sheets created in the receiver's office provided that they do significantly more than merely detail the total number of hours spent by the receiver and officers of particular grades on his or her staff.
7. The court is guided by professional scales of charges, with emphasis on the broad average or general rate charged by persons of the relevant status and qualifications who carry out the relevant type of work.

However, as Barrett J noted in Mohamed & Anor v Hurstville Tower Medical Clinic Pty Ltd (in liquidation) & 9 Ors [2006] NSWSC 4 at [9], the first of these principles was the subject of comment by Branson J in Wenkart v Pantzer [2005] FCA 1572. Barrett J said:

Her Honour referred to the possibility that Young CJ in Eq may have expressed the position too strongly. She considered it "sufficient to note that it will rarely, if ever, be appropriate for the Court to review a decision of a taxing officer on a line by line basis". Analysis on a line by line basis by an appropriate court official was thus recognised as an appropriate approach.

I respectfully agree with those observations by Barrett J.

Second, the essential task of the Court, constituted by a judge, when asked to approve remuneration is encapsulated in the following observation by Barrett J in Anderson Group Pty Ltd; Mann v Anderson (2002) 20 ACLC 1607; [2002] NSWSC 764 at [12], in relation to the remuneration of a liquidator:

In the ordinary course, the process of determination comes down essentially to ensuring that the work upon which the claim was based was work undertaken in the due course of administration and that the amount claimed for having done that work is a fair and reasonable reward for it.

16 In Banksia Securities, Gleeson JA accepted that the essential question arising on an application by court-appointed receivers for approval of their remuneration is whether the remuneration for which approval is sought is reasonable.[7] Gleeson JA also accepted that the Court should have regard to the relevant factors specified in the Corporations Act 2001 (Cth) ('the Act'), in particular s 425, when determining whether the remuneration is reasonable, stating that:

So much can be accepted insofar as the factors in s 425(8) may be taken as an indication of the types of considerations that inform the question of reasonableness in the present case.[8]

17 Section 425(8) of the Act provides as follows:

In exercising its powers under this section, 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 receiver was reasonably necessary;

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

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

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

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

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

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

(i) whether the receiver was, or is likely to be, required to deal with:

(i) one or more other receivers; or

(ii) one or more receivers and managers; or

(iii) one or more liquidators; or

(iv) one or more administrators; or

(v) one or more administrators of deeds of company arrangement;

(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 receiver in performing the work; and

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

18 Referring to the reasons of Bathurst CJ in Sanderson, as liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr[9] and making adaptations for a special purpose receivership,[10] Gleeson JA in Banksia Securities derived the following propositions:

(a) the onus is on the receivers to establish that the claimed remuneration is reasonable. The Court's function is to 'determine the remuneration by considering the material provided and bringing an independent mind to bear on the relevant issues';[11]

(b) many of the factors set out in s 425(8), particularly paragraphs (d), (e) and (g) to (h), have as their 'unifying theme' the concept of proportionality. His Honour went on to say that:

The question of proportionality in terms of work done as compared with the size of the property the subject of the insolvency administration or the benefit to be obtained from the work, is an important consideration in determining reasonableness.[12] The work done must be proportionate to the difficulty and importance of the task in the context in which it needs to be performed. This is want is encompassed in assessing the value of the services rendered.[13]

(c) the 'mere fact that the work performed does not lead to augmentation of the funds available for distribution does not mean that the [receivers] are not entitled to be remunerated for it. ... Provided it was reasonable to carry out the work and the amount charged is reasonable, there is no reason a [receiver] should not recover remuneration for undertaking the work'.[14]

19 The principles concerning applications in respect of liquidators' remuneration are relevant and highly informative for applications of this type, and are well established and have been referred to in many decisions of this Court.

20 Gardiner AsJ summarised those principles in IMO Traditional Values Management Limited (in liq).[15] For convenience I adopt his Honour's summary, which referred to the principles identified by Davies J in Thackray v Gunns Plantations:[16]

At [60], her Honour summarised the principles to be applied by reference to the decision of the Full Court of the West Australian Supreme Court in Venetian Nominees v Conlan as follows:

(a) A summary procedure was involved, not unlike that applicable to the taxation of solicitor's 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 to 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.

21 As referred to above, after their appointment the Receivers continued to trade the various businesses of the Companies until completion of the business and asset sale transactions. In relation to trading, the activities undertaken by the Receivers in the Second Period include:

(a) continuing to trade the businesses and managing day-to-day operational requirements until settlement;

(b) conducting regular visits to each trading location;

(c) preparing and monitoring cash flow forecasts;

(d) monitoring trading performance on a weekly and monthly basis; and

(e) attending to various tasks associated with the wind down of operations, including payment of final wages and redundancies, collection of debtors, payment of final supplier/creditor accounts, post-sale stock stake processing and reconciliations, liaison with purchasers including post-settlement matters concerning trading, final payroll tax, superannuation and other lodgements as required.

22 A sales process commenced on 3 June 2019 for the sale of the Companies' major business assets. This involved significant negotiations with interested parties, consideration of offers, and two separate transactions for the business asset sales. Completion and handover of both sales occurred in January 2020.

23 Eleven property settlements occurred during the Second Period. In addition, marketing of an additional property has continued, land surveyor work has been completed in respect of another property, and a sale of another property again has been negotiated with the contract to be executed shortly. Additional work regarding Western Lands Lease, Lake Victoria Station and the Ulmurra properties has been carried out.

24 In the Second Period, the Receivers have undertaken extensive investigations, including in relation to:

(a) the basis of the dispute between the parties regarding the FY14 to FY19 accounts;

(b) the twelve material issues relating to the financial accounts as detailed in the Receivers' report to the Court dated 31 March 2020;

(c) the shareholders' loan and beneficiary accounts;

(d) personal ownership claims to certain plant and equipment;

(e) assets relocated to Lake Victoria Station;

(f) employee entitlements of certain persons; and

(g) variances between the management and financial accounts.

25 In addition, the Receivers carried out the work described in paragraph 30 below.

26 The Remuneration Approval Request includes detailed schedules for each of the Companies, with each broken down into the task area, a general description of the work performed for each task area, and detailed descriptions for the work performed. It is not necessary for me to set out the detailed descriptions of the work performed. Rather, it is sufficient for me to set out, in tabular form, the task areas and general descriptions of work performed, along with the remuneration claimed in respect of each task area.

27 The Remuneration Approval Request also includes a table in respect of the remuneration claimed regarding each of the Companies, showing the total hours spent and fees incurred for each of the task areas and for each of the Receivers and their staff, including the hourly rates charged.[17]

28 Each of the tables set out below concern the remuneration claimed for the Second Period.

Work performed and remuneration claimed in respect of Sunraysia Roofing Pty Ltd

Work performed and remuneration claimed in respect of The Roofing Centre Mildura Pty Ltd

Work performed and remuneration claimed in respect of Deakin Building Pty Ltd

Work performed and remuneration claimed in respect of Inia Pty Ltd

Work performed and remuneration claimed in respect of the Partnership

The explanation for the increase in remuneration above the estimate

29 The Receivers report that on 31 October 2019, they provided the parties with an estimate of their remuneration for the receivership period up to 30 June 2020 in the amount of $1.3m plus GST. They now estimate their remuneration at $1.8m plus GST should the receivership complete by 31 March 2021.

30 The Receivers say that the change in the estimate is due to, amongst other things:

(a) the previous estimate assumed completion of the receivership by 30 June 2020;

(b) the previous estimate was provided approximately 12 months ago and assumed a timely and efficient conclusion of the receivership, including the sale and settlement of all assets and an ultimate distribution being made to the shareholders prior to 30 June 2020;

(c) the length of time and protracted negotiations in respect of the sale of business process, including the relevant trading properties, was not initially anticipated;

(d) the complexity of work required to investigate personal ownership claims to assets, transactions processed through the shareholders' beneficiary and loan accounts and other queries raised by the parties was not initially anticipated;

(e) the complexity of work required to investigate the twelve material issues to be resolved to enable the financial accounts for FY14 to FY19 to be finalised was not initially anticipated;

(f) the complexity of work required to deal with Lake Victoria Station matters including the subdivision of the Western Lands Lease, easements, caveats, application for possession, investigations to obtain independent access for landlocked properties, water entitlements and correspondence with neighbouring property owners;

(g) the time required to respond to a subpoena issued from the First Defendant in his criminal proceedings;

(h) additional legal proceedings being commenced and/or applications made, including the application to set aside the First Defendant's subpoena in his criminal proceedings, proceedings initiated by the Second Other Party; and removal of caveats and sale of Lake Victoria Station;

(i) the need to instruct solicitors and attend Court in relation to, amongst other things, the abovementioned applications/proceedings;

(j) the time required to investigate and respond to requests for information from the parties; and

(k) the significant levels of enquiries, discussions and requests for information from the parties, including the extent of time required to respond to such requests.

31 While a comparison of the Receivers' estimate of their remuneration to the remuneration claimed is not required as part of the approval application, it is useful for the Court to have an explanation as to why the estimate has been exceeded. I consider that it assists with the analysis as to whether the amount claimed is reasonable, even though the primary consideration is whether the amount claimed is reasonable by reference to the work performed by the Receivers.

32 The Receivers consider their remuneration claim to be:

(a) in respect of necessary work, properly performed in the conduct of the receivership;

(b) fixed based on time spent by them and their staff of an appropriate nature, having regard to the nature and complexity of the work, calculated with reference to the agreed hourly rates; and

(c) made in accordance with the Act, the Australian Restructuring and Turnaround Association Code of Professional Practice and any other applicable professional standard.

33 I am satisfied, based on the material filed by the Receivers, that they have made out a prima facie case for payment of their remuneration, within the meaning referred to in paragraph 20 above.

Consideration of the factors referred to in s 425(8) of the Act

34 As set out above, in considering whether the Court should approve the remuneration claimed by the Receivers, regard must be paid to the factors set out in s 425(8) of the Act. In respect of the factors in s 425(8) which I consider to be relevant, my views are set out below:

(a) in respect of s 425(8)(a) of the Act, the descriptions of the work performed in respect of each of the Companies is sufficient for me to form a view about the amount of work performed, whether it was necessary work, and the reasonableness of the remuneration claimed. I am satisfied that the work performed by the Receivers and their staff was necessary and properly performed and that the amount claimed as remuneration is reasonable;

(b) in respect of s 425(8)(c) of the Act, the period during which the work was performed is almost eleven months. While this is a relatively short period, what is important is the amount of work done during that period. I am satisfied that the amount of work done during the Second Period was reasonably necessary;

(c) in respect of s 425(8)(d)-(g) of the Act, I am satisfied that the Receivers have been required to perform complex work, to deal with extraordinary issues and to accept a higher degree of risk or responsibility than is usually the case. They have continued to trade at least two significant businesses run by the Companies while undertaking a sale of those businesses and other assets. They have undertaken a sales process in respect of more than eleven properties. They have conducted work in respect of other properties. The investigations have been extensive and significant, and wide-ranging, both in respect of claims made by multiple parties and the state of the accounts of the Companies. The surrounding circumstances, which I do not need to go into here, have undoubtedly added to the complexity of the work required of the Receivers. It is evident from the Receivers Report that the work they have carried out has been of a high quality;

(d) in respect of s 425(8)(h) of the Act, it is apparent from the asset realisations referred to earlier in these reasons that the value of the property dealt with by the Receivers is significant. In addition, it appears that the nature of some of the properties dealt with were complex, such as the inclusion of water rights; and

(e) in respect of s 425(8)(k) of the Act, I am satisfied that the work was appropriately delegated within the Receivers' staff, so that the majority of work performed in terms of hours was carried out by the more junior employees. This is readily apparent from my perusal of the tables referred to in paragraph 27 above. I am also satisfied that the time taken to perform the work was properly taken;

35 Accordingly, orders will be made approving the Receivers' remuneration in the amount of $614,897.50 plus any applicable GST, comprised of the following:

(a) $257,603.50 in respect of the Second Defendant;

(b) $257,562.00 in respect of the Third Defendant;

(c) $15,582.50 in respect of the Fourth Defendant;

(d) $15,175.50 in respect of the Fifth Defendant; and

(e) $68,974.00 in respect of the Partnership.

36 The Receivers' solicitors have provided the Court with a draft form of orders and orders will be made in that form.

JULIE MAREE COHRS (IN HER CAPACITY AS EXECUTOR AND TRUSTEE OF THE WILL AND ESTATE OF RAYMOND MANFRED COHRS

JOHN ROSS LINDHOLM AND GEORGE GEORGES IN THEIR CAPACITY AS JOINT AND SEVERAL COURT APPOINTED RECEIVERS AND MANAGERS

[1] The Remuneration Approval Request is Annexure C to the Receivers Report.

[2] For these purposes, the Companies includes the Partnership.

[5] [2017] NSWSC 540 ('Banksia Securities').

[9] [2017] NSWCA 38 ('Sakr').

[10] In Banksia Securities, the receivers had been appointed by the Court as special purpose receivers. Given that the Receivers in the instant case have been appointed by the Court, I do not consider that the fact that they were not appointed as 'special purpose' receivers means that the summary provided by Gleeson JA in Banksia Securities is not applicable here.

[12] Referring to Templeton v Australian Securities and Investments Commission (2015) 108 ACSR 545; (2015) FCAFC 137 ('Templeton').

[13] Banksia Securities, [45] (citations omitted); Referring to Sakr, [55].

[15] [2012] VSC 650, [18] to [25] ('Traditional Values').

[16] [2011] VSC 380; (2011) 85 ACSR 144 ('Thackray').

[17] See the tables in paragraphs 3.2.1, 3.2.2, 3.2.3, 3.2.4 and 3.2.5 of the Remuneration Approval Request.