Plaintiffs v Defendants

2 The proceeding was commenced by originating process dated 19 February 2020 and amended on 30 March 2020 ('Original Application') and was, until recently, opposed by the Company and its liquidator, Stephen John Michell ('Liquidator'). The Company and the Liquidator (in his capacity as liquidator of the Company) were named as defendants to the proceeding ('Defendants').

3 By the Amended Application, the Administrators now seek the following orders:

(a) an order pursuant to s 60-10(1)(c), alternatively s 90-15, of the Insolvency Practice Schedule (Corporations) ('IPS'), being Schedule 2 to the Corporations Act 2001 (Cth) ('Act') specifying that the Administrators' remuneration for the necessary work properly performed in relation to the external administration of the Company be approved and fixed at $327,359.45 (excluding GST);

(b) an order pursuant to s 60-10(1)(c), alternatively s 90-15, of the IPS specifying that the Administrators' entitlement to be reimbursed for internal disbursements incurred during the external administration of the Company be approved and fixed at $1,851.00 (excluding GST); and

(c) an order that the Administrators' costs are costs in the liquidation payable under s 566(1)(dd) of the Act.

4 In support of the Amended Application, the Administrators rely on the following affidavits of Ms Warwick:

(a) affidavit sworn 2 December 2019 ('First Warwick Affidavit'), paragraphs 5-53, 60;

(b) affidavit sworn 18 February 2020 ('Second Warwick Affidavit');

(c) affidavit sworn 17 June 2020 ('Third Warwick Affidavit'), paragraphs 5-12;

(d) affidavit sworn 21 September 2020 ('Fourth Warwick Affidavit'), paragraph 7; and

(e) affidavit sworn 12 March 2021 ('Fifth Warwick Affidavit').

5 The Administrators also rely on their written submissions as follows:

(a) submissions dated 30 June 2020, paragraphs 6-33;

(b) revised reply submissions dated 9 December 2020, paragraphs 5-20, 27-30, 40‑45, and 79; and

(c) further submissions dated 23 March 2020.

6 While not all of these materials may be specifically referred to in these reasons, all of them have been read and taken into account.

7 For the reasons which follow, the Amended Application will be granted, save for a relatively minor reduction of $6,371 in the amount to be approved.

8 The Company previously traded under the name Wadley's Interstate Transport Service. It operated from premises in Campbellfield Victoria and Wetherill Park New South Wales, and provided interstate transportation services across the east coast of Australia and South Australia.[1]

9 On 28 March 2019, the Company was placed into voluntary administration by its director, Grant Fowler, under s 436A of the Act. The plaintiffs, all of whom were employed by FTI Consulting, were appointed as administrators of the Company on that day.[2]

10 Prior to the appointment of the Administrators, a creditor of the Company had applied to this Court to have the Company wound up. The Administrators did not oppose the winding up application, as it had become apparent that a deed of company arrangement was unlikely to be pursued. Orders were made by this Court on 10 April 2019 for the winding up of the Company, and Mr Michell of PCI Partners was appointed as liquidator of the Company.[3]

11 With the appointment of the Liquidator, the Administrators' appointment to the Company came to an end on 10 April 2019.[4]

12 During the period 28 March 2019 to 9 April 2019 ('Administration Period'), Ms Warwick deposes that the Administrators incurred professional fees totalling $280,048.50 (excluding GST) ('Administration Fees'). These fees have not yet been approved by creditors of the Company and the Administrators have not yet received any payment by way of remuneration for the work they performed during the administration.[5]

13 Ms Warwick deposes that despite the administration being terminated on 10 April 2019, the Administrators were required to complete a range of tasks arising from or otherwise incidental to their appointment as administrators of the Company. She says that they assisted in managing the transition of the Company from administration to liquidation, and that they continued to incur remuneration, costs and expenses in performance of their residual functions, powers and duties as administrators.[6]

14 Ms Warwick deposes that the Administrators have incurred professional fees totalling $214,584.50 (excluding GST) ('Post-Administration Fees') in finalising the administration of the Company between 10 April 2019 and 30 September 2019 ('Post‑Administration Period').[7] Ms Warwick further deposes that despite incurring the Post-Administration Fees for the Post-Administration Period, the Administrators were only seeking payment of, and court approval for, an amount totalling $80,000 ('Post-Administration Capped Amount').[8]

15 Ms Warwick also deposes that during the Administration Period, the Administrators incurred $1,851 in internal disbursements, being printing costs and time incurred by FTI's strategic communications division, which was engaged to assist with media inquiries during the administration ('Internal Disbursements'). These have not yet been approved by creditors of the Company and the Administrators have not yet received any amount by way of reimbursement.[9]

16 By the Application, amongst other things the Administrators originally sought orders:

(a) approving their remuneration in the amount of the Administration Fees and the Post-Administration Capped Amount, along with their Internal Disbursements;

(b) that certain amounts of the fees, being $102,189.40, were secured by two equitable liens ('Equitable Lien Fees');[10]

(c) extending the Administrators' entitlement to remuneration and to recover costs and expenses to cover the Post-Administration Period; and

(d) extending the Administrators' right of indemnity under s 443D of the Act, their priority rights under s 443E of the Act and their lien to secure their indemnity under s 443F of the Act to cover their remuneration, costs and expenses arising from the Post-Appointment Period.

17 For reasons which will become apparent, it is not necessary for me to go into a great deal of detail about the matters referred to in paragraphs (b) to (d) of the preceding paragraph, save for this.

18 I am satisfied that the Administrators have complied with the requirements of r 9.2 of the Supreme Court (Corporations) Rules 2013 ('Corporations Rules'), which require service of a notice of intention to apply to the Court for approval of their remuneration and the affidavit in support on certain persons prior to the application being made, along with information as to how to notify the Administrators of any objection, on certain persons. The required information was served on the persons required to be served under r 9.2 of the Corporations Rules (in this instance, each creditor who was present, in person or by proxy, at any meeting of creditors, the five largest creditors, and each member of the Company with at least a 10% shareholding), none of whom notified the Administrators of any objection to the Application.[11]

19 The Application was opposed by the Defendants, who filed an affidavit sworn by the Liquidator on 25 May 2020 and a revised outline of submissions dated 11 November 2020.

20 The Application was originally listed to be heard by me on 30 July 2020. At that time, I was a judicial registrar of the Court. Prior to the date of the hearing, the parties wrote to my Associate and indicated that there were two key substantive issues in the proceeding about which the parties differed and about which the authorities were in some conflict. They sought a referral of the proceeding to a judge of the Court, so that those substantive issues could be determined. I acceded to that request and made orders on 29 July 2020 vacating the hearing date and referring the proceeding to a judge pursuant to r 84.03 of the Supreme Court (General Civil Procedure) Rules 2015 ('Rules').

21 After some directions hearings and the filing of further material by the parties, the proceeding was listed for hearing before Connock J on 23 February 2021 (subsequently adjourned to 24 February 2021).

22 When the matter came on before his Honour, the parties informed the Court that the proceeding was substantially resolved between them. In orders made that day, Connock J noted in paragraph A of 'other matters' that the Court had been informed that:

• the parties have come to a resolution in relation to the substantive issues in the proceeding and seek orders by consent granting leave to the plaintiffs to further amend the originating process and referring the proceeding as re-formulated to an Associate Justice or Judicial Registrar for hearing and determination;
• although the substantive issues in the proceeding have been resolved the plaintiffs still require approval of the court of their remuneration - the quantum of which the second defendant agrees - pursuant to s 60-10 or s 90-15 of the [IPS], or otherwise;
• the terms of the plaintiffs' proposed further amended originating process now omit the substantive contested issues and seek limited orders relating to the approval hearing that is sought to be held before an Associate Justice or Judicial Registrar;
• the remuneration for which approval is sought includes amounts incurred for works conducted following the end of the administration and commencement of the liquidation, for which the second defendant agrees were necessary for handover in the post administration period and approves of that work being undertaken. The second defendant agrees the quantum for that work sought by the plaintiffs.

23 His Honour vacated the trial date, gave the Administrators leave to further amend the originating process, referred the proceeding and the Amended Application to me for hearing and determination, and adjourned the proceeding for directions before me on a date to be fixed.[12]

24 Ms Warwick deposes to the settlement between the parties, and exhibits a copy of a letter agreement dated 24 February 2021 detailing the terms of settlement ('Settlement Letter').[13] The matters referred to in paragraphs 22 and 23 above occurred as a consequence of the settlement reached as reflected in the Settlement Letter.

25 The two key substantive issues referred to by Connock J are described by the Administrators as ('Substantive Issues'):[14]

(a) whether the plaintiffs could recover remuneration, costs and expenses for work conducted following the appointment of the second defendant as liquidator (i.e. post-administration remuneration, costs and expenses); and

(b) whether the plaintiffs are entitled to priority in relation to their remuneration, costs and expenses pursuant to sections 443D, 443E and 443F of the [Act].

26 Pursuant to the Settlement Letter, the Substantive Issues were resolved between the parties as follows:

(a) the Defendants acknowledged that the remuneration sought for the Post‑Administration Period concerned work approved by the Liquidator and conducted to assist with handover tasks for the liquidation;[15]

(b) the Defendants withdrew their prior objections to the Administrators seeking to recover remuneration, costs and expenses for work conducted in the Post‑Administration Period; and

(c) the parties agreed that the Administrators' remuneration would be paid pursuant to s 556(1) of the Act, as set out in the Settlement Letter, and therefore no determination as to priorities under ss 443D, 443E or 443F was required.

27 The parties also reached agreement as to various discounts in relation to the remuneration, costs and expenses incurred by the Administrators, as follows, which Ms Warwick deposes were in addition to discounts previously set out in her First Affidavit:[16]

(a) the Administrators will receive $208,335 (including GST), being an agreed discount from the $231,484 claimed, for their ordinary remuneration incurred during the Administration Period;

(b) the Administrators will receive $62,380.72 (including GST), being an agreed discount from the $236,042.95 claimed, for their ordinary remuneration incurred during the Post-Administration Period. It will be recalled that the Administrators had, in the original Application, agreed to cap their post-administration remuneration at $80,000; and

(c) the Administrators will receive $89,379.77 (including GST), being an agreed discount from the $102,189.40 claimed, in respect of their equitable lien remuneration.

28 Ms Warwick deposes that the amount for the Administrators' fees now sought in the Amended Application, being the amount of $327,359.45 (excluding GST), comprises the following amounts which are also referred to in the Settlement Letter:[17]

(a) $81,254.34 (excluding GST) in relation to the equitable lien remuneration ('Discounted Equitable Lien Fees');

(b) $189,395.46 (excluding GST) in relation to ordinary remuneration for the Administration Period ('Discounted Administration Fees'); and

(c) $56,709.75 (excluding GST) in relation to ordinary remuneration for the Post-Administration Period ('Discounted Post-Administration Fees').

29 On 5 March 2021, I made orders by consent, noting that the parties were content for the Amended Application to be determined by the Court in chambers on the papers, that:

(a) the Administrators file and serve a further affidavit by 12 March 2021;

(b) the Administrators file and serve any further outline of submissions by 19 March 2021; and

(c) the Defendants file and serve any further outline of submissions by 26 March 2021.

30 The Fifth Warwick Affidavit was filed on 12 March 2021 and the further outline of submissions was filed by the Administrators on 23 March 2021. On 30 March 2021, the Defendants informed my Associate by email that they had reviewed the Administrators' further submissions dated 23 March 2021 and substantially agreed with its contents, they did not have anything to add, and they were content for the matter to be determined on the papers. On my instructions, my Associate then sent an email to the parties that I would proceed to determine the Amended Application on the papers, that they would be notified if I considered it necessary to hear further from them, and would otherwise be notified when a decision would be handed down.

31 While the parties may have reached agreement between themselves in respect of the Amended Application, including as to the quantum of the remuneration to be approved, the Court still has an obligation to independently consider the application for approval and to come to its own views about whether the remuneration should be approved and in what amount. As Hetyey JR (as his Honour then was) observed in Re Graziers' Investment Company Limited (in Liquidation) (ACN 095 401 200) and GIC Holdings Pty Ltd (in Liquidation) (ACN 095 351 590):[18]

The authorities make clear that a remuneration determination by the Court is not a "rubber stamping" exercise. Instead, the Court's function is to independently consider the nature and extent of the remuneration claim and to make an assessment of its reasonableness having regard to the work performed and the particular features of the external administration. The nature of the Court's role is the same regardless of whether the remuneration is determined following objections by interested parties at a formal hearing or whether the assessment is undertaken "on the papers" in the absence of the public and without attendance by the party making the claim. The claimant has the same burden of demonstrating that the remuneration sought is reasonable regardless of the procedure adopted.

32 I have previously summarised the law and principles applicable to remuneration applications in a number of decisions. For convenience, below is my summary of these matters, with some minor changes, taken from Re Digital Dialogue Media Pty Ltd (in liq).[19]

33 The IPS is relatively new, having been introduced with numerous amendments made to the provisions of the Act relating to external administrators by the Insolvency Law Reform Act 2016 (Cth) ('ILRA'). Amongst other things, the ILRA repealed s 473 of the Act (which had provided for the determination of liquidators' remuneration) and introduced the IPS.

34 For the purposes of the IPS, an external administrator is defined as an administrator, an administrator under a deed of company arrangement, a liquidator, or a provisional liquidator, of the company.[20] A company is taken to be under external administration for the purposes of the IPS on the occurrence of certain events, being under administration, a deed of company arrangement has been entered into, a liquidator has been appointed, or a provisional liquidator has been appointed.[21]

35 Section 90-15 of the IPS relevantly provides as follows:

Court may make orders

(1) The Court may make such orders as it thinks fit in relation to the external administration of a company.

Orders on own initiative or on application

(2) The Court may exercise the power under subsection (1):

(a) on its own initiative, during proceedings before the Court; or

(b) on application under section 90-20.

Examples of orders that may be made

(3) Without limiting subsection (1), those orders may include any one or more of the following:

(a) an order determining any question arising in the external administration of the company;

...

(d) an order in relation to the costs of an action (including court action) taken by the external administrator of the company or another person in relation to the external administration of the company;

...

(f) an order in relation remuneration, including an order requiring a person to repay to a company or the creditors of a company, remuneration paid to the person as external administrator of the company.

Matters that may be taken into account

(4) Without limiting the matters which the Court may take into account when making orders, the Court may take into account:

(a) whether the liquidator has faithfully performed, or is faithfully performing, the liquidator's duties; and

(b) whether an action or failure to act by the liquidator is in compliance with this Act and the Insolvency Practice Rules; and

(c) whether an action or failure to act by the liquidator is in compliance with an order of the Court; and

(d) whether the company or any other person has suffered, or is likely to suffer, loss or damage because of an action or failure to act by the liquidator; and

(e) the seriousness of the consequences of any action or failure to act by the liquidator, including the effect of that action or failure to act on public confidence in registered liquidators as a group.

Costs orders

(5) Without limiting subsection (1), an order mentioned in paragraph 3(d) in relation to the costs of an action may include an order that:

(a) the external administrator or another person is personally liable for some or all of those costs; and

(b) the external administrator or another person is not entitled to be reimbursed by the company or its creditors in relation to some or all of those costs.

36 Section 90-20 of the IPS relevantly provides that a person with a financial interest in the external administration of the Company or an officer of the Company may apply for an order under s 60-15 of the IPS.

37 Section 60-10 of the IPS applies to this application, and it relevantly provides as follows:

60-10 Remuneration determinations

...

(2) [External administrator in a members' voluntary winding up] A determination, specifying remuneration that an external administrator of a company in a members' voluntary winding up is entitled to receive for necessary work properly performed by the external administrator in relation to the external administration, may be made:

(a) by resolution of the company at a general meeting; or

(b) if a determination is not made under paragraph (a) - by the Court.

...

(3) [Amount of remuneration] A determination under this section may specify remuneration that the external administrator is entitled to receive in either or both of the following ways:

(a) by specifying an amount of remuneration;

(b) by specifying a method for working out an amount of remuneration.

38 In exercising the power to determine the Administrators' remuneration, s 60-12 of the IPS states that 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 by the external administrator was necessary and properly performed;

(b) the extent to which the work likely to be performed by the external administrator is likely to be necessary and properly performed;

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

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

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

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

(g) the extent (if any) to which the external administrator 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 external administrator;

(i) the number, attributes and conduct, or the likely number, attributes and conduct, of the creditors;

(j) if the remuneration is worked out wholly or partly on a time-cost basis - the time properly taken, or likely to be properly taken, by the external administrator in performing the work;

(k) whether the external administrator was, or is likely to be, required to deal with one or more controllers, or one or more managing controllers;

(l) if:

(i) a review has been carried out under Subdivision C of Division 90 (review by another registered liquidator) into a matter that relates to the external administration; and

(ii) the matter is, or includes, remuneration of the external administrator;

the contents of the report on the review that relate to that matter;

39 While the criteria in s 60-12 of the IPS direct the Court to the factors that are to be taken into account, the ultimate question is whether the remuneration claimed by the Administrators is reasonable.

The Court's approach when considering applications for approval of an external administrator's remuneration

40 The principles concerning applications for approval of the remuneration incurred by insolvency practitioners are well established and have been referred to in many decisions of this Court. These principles were developed when the previous statutory provisions applied, as I have set out above.

41 The factors contained in s 60-12 of the IPS are materially the same as the factors which were set out in s 449E(4) of the Act.[22]

42 As the relevant provisions are relatively new, and as the factors to be taken into account are materially the same, the earlier authorities remain pertinent.

43 Gardiner AsJ summarised the relevant principles in IMO Traditional Values Management Limited (in liq)[23] ('Traditional Values') at paragraphs [18] to [25].

44 For convenience I adopt his Honour's summary, which referred to the principles identified by Davies J in Thackray v Gunns Plantations:[24]

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.

At [63] and [64] of Thackray, her Honour stated:

.... the receivers accepted that the principles set out Venetian Nominees Pty Ltd v Conlan 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;

(b) novelty and difficulty of the issues faced;

(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.[25]

45 Black J of the New South Wales Supreme Court also summarised the applicable principles in In the matter of Sakr Nominees Pty Limited.[26] In addition to the matters referred to above, his Honour stated the following propositions:

[T]he Court will generally need to be provided with an account in itemised form, setting out at least the details of the work done; the persons who did the work; the time taken to perform the work; the remuneration claimed; and, to the extent relevant, the expenses incurred.[27]

Proportionality is an important matter in considering the question of whether remuneration is reasonable, and the 'value' of a liquidator's work can include the benefit of resolving the position of creditors and beneficiaries; the benefit to the community of not permitting assets to remain unproductively in the hands of a defunct company for a long period; and can include work that was required to be done, although it did not result in a return to creditors.[28]

46 His Honour also canvassed a number of authorities regarding the method for calculating the remuneration, such as time costing or remuneration based on a percentage of realisations, concluding that:[29]

Most decisions ... have applied time costing as at least the starting point for a calculation of remuneration, although those decisions also emphasise the need for proportionality between the costs of the work done and the value of the services provided.

47 On this point, his Honour concluded by referring to the New South Wales Court of Appeal decision in Sanderson, as liquidator of Sakr Nominees Pty Ltd (in liquidation) v Sakr[30] which he said did not prefer any particular approach over another. Black J then stated:

Whether time-based remuneration or a percentage of recoveries is appropriate in a particular case will depend, in part, on the basis on which the liquidator puts his or her application for remuneration; and, in part, the view taken by the Court.[31]

Background information about the Company and the initial period of the Administration

48 It is useful to set out some information about the Company's business and circumstances, as it helps with understanding the work performed by the Administrators.

49 As noted above, the Company operated from premises in Victoria and New South Wales, providing interstate transportation services across the east coast of Australia and South Australia.[32]

50 At the time the Administrators were appointed, the Company employed approximately 45 staff. In the financial year ending 30 June 2018, its annual turnover was approximately $19m.[33]

51 Initially, the Administrators continued to run the Company's business as a going concern on a business as usual basis. However, after reviewing the Company's business, the Administrators deemed that it was no longer financially viable. On 4 April 2019, the Administrators determined that the Company should cease trading and from then, the Administrators oversaw a managed wind down of the Company's operations.[34]

Complexity of the Administration and the Post-Administration Period

52 Ms Warwick deposes that during the course of the Administrators' appointment, a range of challenges arose which added to the complexity of the administration. She says that the following matters caused some difficulties:[35]

(a) the lease of the premises from which the Company had traded in Sydney had expired when the Administrators were appointed. As a result, the Administrators were required to negotiate extensively with the landlord of the site to enable continued use;

(b) when the decision was made on 4 April 2019 to cease trading, the Company's fleet was located across the eastern seaboard of Australia. Hence the Administrators were required to locate and manage the return of the trucks from various locations;

(c) several key staff members of the Company took sick leave when the administration commenced, including the chief financial officer who was responsible for maintaining the Company's debtor ledgers. As a result, the Administrators' work associated with the debtor ledgers was extremely difficult;

(d) during the administration, the Administrators were required to deal with attempts by third parties to steal some of the assets of the Company;

(e) given the winding-up application against the Company, the Administrators were required to complete an urgent evaluation of the Company's business and engage with directors to assess the possibility of a deed of company arrangement. The urgency of this work increased the complexity;

(f) assisting with the transition of the Company from administration to liquidation has involved extensive and protracted negotiation with the Liquidator;

(g) the difficulty in reaching agreement with the Liquidator regarding the equitable and statutory liens;

(h) additional administrative tasks associated with having to pay incurred expenses directly from FTI Consulting to suppliers and contractors, as the Administrators did not have sufficient funds to pay these expenses;

(i) receiving and responding to enquiries from customers and sub-contractors in relation to goods in transit and ransom loads;

(j) finalising various ongoing matters, in particular ongoing payroll and superannuation issues; and

(k) ongoing statutory compliance required as a result of the protracted process, in particular preparation and review of Business Activity Statements.

53 In respect of the matters referred to in sub-paragraph 52(f) above, I note that the First Warwick Affidavit goes into some detail as to those matters, which it is not necessary for me to set out here. One thing which should be mentioned is that the Administrators attempted to obtain the Liquidator's agreement to convene a meeting of creditors so as to approve the Administrators' remuneration, which was not forthcoming. As the Company went into liquidation before the second meeting of creditors could be held during the Administration, the Administrators were not able to seek approval for their remuneration from that meeting. As there was no subsequent meeting of creditors which considered the Administrators' remuneration, it became necessary for the Administrators to seek approval for their remuneration from the Court, pursuant to the Act.

Manner of calculating the Administrators' remuneration

54 The Administrators and their staff charged their time by recording in increments of six minutes. They entered their time, together with a narration of the tasks undertaken into an electronic system. The time entered is reviewed periodically.[36]

55 The hourly rates of the Administrators and their staff were set by FTI Consulting. Ms Warwick deposes that these rates are in line with the prevailing market rates for firms of a similar size and capacity to FTI Consulting, and that she believes that the rates allocated to staff accurately reflect the experience, seniority and capability of the relevant staff member.[37]

56 The hourly rates (effective I March 2017) used in this administration are set out at Schedule 3 to the Administrators' remuneration report exhibited to the First Warwick Affidavit ('Remuneration Report').[38]

57 The Administrators calculated their remuneration claim on a time basis. Ms Warwick deposes that she considers this method to be the most appropriate for this matter, as:[39]

(a) it ensures that the Administrators will only be paid for work performed;

(b) given the nature of the appointment, in particular the fact that the Company was placed into liquidation before the second meeting of creditors was held, other methods of calculating remuneration (for example, fixed fee or percentage of recovery) are not appropriate; and

(c) FTI Consulting has a time recording system that allows detailed analysis of time spent on each type of task by each individual staff member utilised in the administration, to ensure time is being efficiently recorded at the level appropriate for the work performed.

58 The time entered into FTI Consulting's electronic time recording system for work completed in relation to this administration was recorded under the following categories: assets; creditors; employees; trade on; investigation; and administration (each a 'Category', together 'Categories').

Work performed by Administrators and their staff

Work performed by Administrators during the Administration Period

59 During the first two weeks of their appointment, the Administrators and their staff at FTI Consulting undertook a range of tasks, summarised by Ms Warwick as:[40]

(a) attending the Company's premises and liaising with employees and subcontractors to facilitate the collection of motor vehicles and other items of plant and equipment;

(b) instructing and liaising with valuers and reviewing valuation reports;

(c) preparing an information memorandum to issue to interested parties in relation to selling the business as a going concern;

(d) making arrangements to open new bank accounts;

(e) liaising with debtors and issuing demands for payment;

(f) receiving and responding to enquiries from secured and unsecured creditors;

(g) preparing for and conducting the first meeting of creditors;

(h) receiving and following up on employees' enquiries, as well as preparing separation certificates and termination notices for employees;

(i) managing trade on;

(j) conducting investigations; and

(k) preparing and lodging ASIC forms for appointment, and notifying the ATO of the appointment.

60 Ms Warwick has also set out a detailed description of the work performed under each of the Categories during the Administration Period. Given that the amount claimed as remuneration for this period is significant, it is helpful to include that detail here.

61 The work undertaken in the Assets Category during the Administration Period includes:[41]

(a) undertaking an assessment of the Personal Properties Securities Register for the Company and writing to all registered security interest holders to advise of the appointment;

(b) monitoring of responses from registered security interest holders and dealing with queries;

(c) identification of trucks and trailers registered to the Company and determining their whereabouts;

(d) engaging Pickles to value the fleet of trucks and trailers;

(e) seeking submissions from agents to sell the fleet;

(f) review of submissions received from agents;

(g) undertaking an extensive reconciliation of the accounts receivable ledger to facilitate the collection of debtors subject and not subject to the invoice factoring agreement;

(h) undertaking tasks to collect proof of delivery documents to facilitate the collection of accounts receivable balances;

(i) identification of loads not previously invoiced and overseeing the invoicing of same; and

(j) relocation of assets back to base or to the yard of Graysonline following the decision to cease trading.

62 The work undertaken in the Creditors Category during the Administration Period includes:[42]

(a) preparing the first circular to creditors dated 1 April 2019 and sending to 217 individual creditors, including employees;

(b) preparing the notice of meeting and forms in connection with the meeting creditors held on 9 April 2019;

(c) attending to queries from creditors by phone, email and post, including discussing the progress of the administration;

(d) reviewing documentation from creditors regarding their claims against the Company;

(e) reviewing and assessing information from security interest holders; and

(f) preparing for and attending the first meeting of creditors.

63 The work undertaken in the Employees Category during the Administration Period includes:[43]

(a) attending locations and advising employees of appointment;

(b) preparing circular to employees notifying them of the appointment and providing instructions for ongoing trading;

(c) dealing with employee queries as and when they arose, particularly with respect to their accrued entitlements; and

(d) preparing termination notices and separation certificates for employees.

64 The work undertaken in the Trade On Category during the Administration Period includes:[44]

(a) internal meetings to discuss continuing to trade;

(b) contacting suppliers and subcontractors and notifying them of the appointment, and seeking their ongoing support including setting up new accounts in the voluntary administration;

(c) contacting landlords and negotiating short term arrangements to maintain access to facilities;

(d) assessing compliance with road safety regulations;

(e) contacting customers to advise of appointment and seek ongoing support for continued trading;

(f) preparation of and maintaining a trading cash flow recording loads delivered and commitments to suppliers;

(g) seeking funding from secured creditor to meet payroll requirements;

(h) identification and investigation into missing loads;

(i) obtaining insurance to allow the continuation of trading and dealing with insurer's ongoing queries;

(j) arranging for and paying wages to employees; and

(k) arranging payment of suppliers.

65 The work undertaken in the Investigation Category during the Administration Period includes:[45]

(a) attending at premises to secure books and records and undertake forensic imaging of computers and servers;

(b) reviewing books and records;

(c) investigating the background of the Company and its business (its directors, assets, security position, and structure);

(d) scanning and collating documents into a usable format for further investigation;

(e) conducting and summarising statutory searches;

(f) preparing and sending correspondence to the Company's accountant providing notification of appointment; and

(g) reviewing bank statements to identify any possible voidable transactions requiring further investigation.

66 The work undertaken in the Administration Category during the Administration Period includes:[46]

(a) advising third parties of appointment, including the ATO and SRO or its equivalent in each state of operation;

(b) registering for GST;

(c) preparing the notice of appointment with ASIC and advertising appointment;

(d) requesting delivery of books and records held by third parties;

(e) preparing notice to all banks to seek information of any accounts held in the name of the Company;

(f) attending internal meetings regarding the progress of the administration and determining whether to continue trading; and

(g) preparing and lodging form showing receipts and payments and BAS.

Work performed by the Administrators during the Post-Administration Period

67 Ms Warwick has also set out a detailed description of the work performed under each of the Categories during the Post-Administration Period.

68 The work undertaken in the Assets Category during the Post-Administration Period includes:[47]

(a) attending the Company's premises to oversee the relocation of trucks and trailers to Graysonline;

(b) liaising with employees and subcontractors to facilitate the relocation;

(c) provision of information pertaining to missing loads to the Liquidator;

(d) preparing correspondence to the Liquidator and secured creditor as to the status of the collection exercise;

(e) issuance of final invoices to customers;

(f) attending premises to obtain information to facilitate the collection of outstanding debtor balances to be passed to the Liquidator;

(g) ongoing reconciliations of debtor ledgers with the Liquidator and secured creditor regarding collections;

(h) dealing with ongoing queries from customers as they arose; and

(i) meeting with the Liquidator's representative to handover information on accounts receivable ledgers.

69 The work undertaken in the Creditors Category during the Post-Administration Period includes:[48]

(a) preparing a circular to unsecured trade creditors advising of the cessation of the Administrators' appointment;

(b) dealing with creditor queries as they arose, some of which related to trade on activities;

(c) preparing reports to the major secured creditor and other security interest holders on the cessation of the appointment; and

(d) preparing and lodging minutes of meeting of creditors with ASIC.

70 The work undertaken in the Employees Category during the Post-Administration Period includes:[49]

(a) attending locations and advising employees of the cessation of the Administrators' appointment and the appointment of the Liquidator;

(b) dealing with ongoing employee queries;

(c) issuing of payslips for the Administration Period;

(d) preparing separation certificates;

(e) preparing PAYG summaries; and

(f) liaising with superannuation companies for payment of outstanding balances.

71 The work undertaken in the Trade On Category during the Post-Administration Period includes:[50]

(a) paying trading liabilities from both funds on hand and indirectly via FTI Consulting and updating the commitment schedule;

(b) dealing with ongoing queries from suppliers and employees arising from trading;

(c) reconciliation of trading sales and preparing handover to the Liquidator for collection;

(d) internal processing and recording of receipts and payments;

(e) assessment and categorisation of liabilities to allocate between care and preservation and trading; and

(f) dealing with ongoing queries from the Liquidator regarding trading liabilities.

Investigation Category - Post-Administration Period

72 The work undertaken in the Investigation Category during the Post-Administration Period includes:[51]

(a) attending premises to secure books and records and undertake forensic imaging of computers and servers; and

(b) scanning and collating of documents into a usable format for further investigation.

Administration Category - Post-Administration Period

73 The work undertaken in the Administration Category during the Post-Administration Period includes:[52]

(a) preparing and lodging forms with ASIC regarding ceasing to act as voluntary administrators;

(b) preparing and lodging forms recording the Administrators' receipts and payments for the Administration Period;

(c) preparing and lodging business activity statements;

(d) advising third parties of ceasing to act;

(e) preparing and delivery of books and records to the Liquidator;

(f) completion of single touch payroll requirements for employees;

(g) finalisation of insurance arrangements for the Administration Period;

(h) undertaking reconciliation of bank accounts;

(i) dealing with queries from the Liquidator not charged to other task codes;

(j) correspondence with the Liquidator regarding the equitable and statutory liens;

(k) undertaking assessment of remuneration and disbursements and allocating against asset classes;

(l) meetings with legal team and the representatives of the Attorney‑General's Office (FEG); and

(m) preparing an application to Court seeking approval of remuneration.

74 Ms Warwick exhibits to her first affidavit a remuneration report ('Remuneration Report') which summarises the remuneration incurred by the Administrators, sets out the basis for its calculation and includes supporting schedules providing further details of the amount claimed.[53]

75 Also exhibited to the First Warwick Affidavit are two itemised 'work in progress' reports, one for the Administration Period ('Administration Period WIP Report') and another for the Post-Administration Period ('Post-Administration Period WIP Report') (together, the 'WIP Reports'), which have been extracted from FTI Consulting's time recording system and include narrations for each individual time entry.[54] The itemised reports record the date a task was done, which FTI Consulting employee undertook the task, their position, their hourly rate, the Category against which the task has been recorded, the time spent on the task, the amount of fees incurred for that task, and a narration describing the task done.

76 Ms Warwick deposes that the Administrators have endeavoured to ensure that tasks of low complexity were undertaken by staff members that are junior and have lower charge-out rates than the senior staff, who were allocated more complex tasks. She states that she is satisfied that the time recorded in the Remuneration Report and the WIP Reports is commensurate with the work that was necessary and was properly performed. She also says that the Remuneration Report has been prepared in accordance with the Code of Professional Practice for Insolvency Practitioners (Third Edition, 2014), and that the Administrators have had regard to and have observed the principles and standards set out therein in respect of remuneration.[55]

77 Ms Warwick also deposes that many of the tasks which had to be performed in the Post-Administration Period were of greater complexity and required the attention of more senior staff members, having regard to the following:[56]

(a) after the Liquidator's appointment, it became necessary to consider, in detail, the applicable legal principles regarding recovery of remuneration for the Post‑Appointment Period and the legal principles regarding equitable and statutory lines. Engaging with these principles, including obtaining and considering external legal advice, was appropriately dealt with by senior staff;

(b) the Administrators spent a significant portion of time in responding to requests from the Liquidator, many of which came from the Liquidator himself or his senior staff;

(c) Westpac was a significant secured creditor in the administration, and the Administrators were required to make various attendances on Westpac, which required the use of appropriately experienced staff;

(d) the Administrators were required to deal with a number of creditors who were less sophisticated in their communications, some of which were confronting for junior staff and required more senior staff to deal with them; and

(e) delays in payments to certain suppliers following the Liquidator's appointment, and the position adopted by him in relation to these payments, resulted in numerous enquiries from these suppliers. These were mainly handled by junior staff members but, at times, senior staff members were required to mitigate any issues.

78 As I apprehend it, the amount of the Equitable Lien Fees is included in the Administration Fees and the Post-Administration Fees, but is an amount which the Administrators contend is secured by two equitable liens. The Equitable Lien Fees have been arrived at by Ms Warwick reviewing the overall fees and considering each entry in the time recording system and then noting whether it was work relating to preserving the plant and equipment of the Company or the book debts of the Company which had been purchased by Westpac under an invoice finance facility.[57]

Remuneration incurred for the Administration Period

79 The remuneration incurred for the Administration Period is summarised in the below table:[58]

Remuneration incurred for the Post-Administration Period

80 The remuneration incurred for the Post-Administration Period is summarised in the below table:[59]

81 As referred to above, at the time of the First Warwick Affidavit, the Administrators sought approval for and payment of an amount totalling $80,000 (excluding GST), being the Post-Administration Capped Amount. Ms Warwick deposes that she reviewed the fees incurred and formed the view that a discount of $134,584.50 should be applied to the fees in respect of the Post-Administration Period.[60] In respect of this discount, Ms Warwick says that:

(a) $70,959 in fees was incurred responding to requests from the Liquidator. The Administrators do not seek payment of those fees as Ms Warwick considers that this work did not provide any benefit to creditors;[61] and

(b) $98,472.50 in fees relates to time spent in dealing with costs that were incurred during the Administration Period which the Administrators were unable to defray as they did not have sufficient funds. This led to time being incurred managing queries from suppliers and subcontractors, together with the additional administrative tasks of having to pay the incurred expenses directly from FTI Consulting. Ms Warwick says that she understands that the time incurred in completing these tasks has been allocated to the Trade On Category, which explains why there were significant Trade On fees recorded after the decision to cease trading was made. The Administrators are seeking approval for approximately one third of this time, totalling $34,847, representing a discount of $63,625.50.[62]

Amount of remuneration for which approval is now sought

82 As detailed above, the Administrators now no longer seek approval of the full amount of the Administration Fees and the Post-Administration Capped Amount, together inclusive of the Equitable Lien Fees.

83 Rather, following the settlement with the Liquidator as reflected in the Settlement Letter, and making the necessary adjustments to the figures in that letter so as to show GST exclusive (rather than inclusive amounts), the Administrators now seek approval of their remuneration in the amount of $327,359.45 (excluding GST) ('Administrators' Discounted Remuneration'), comprising:

(a) the Discounted Administration Fees, being $189,395.46;

(b) the Discounted Post-Administration Fees, being $56,709.75; and

(c) the Discounted Equitable Lien Fees, being $81,254.34.

84 Based on all of the evidence provided, I am satisfied that the Administrators have made out a prima facie case for payment of their remuneration, within the meaning referred to in paragraph 44 above. That is, the Administrators have made out a prima facie case that the remuneration claimed is fair and reasonable, and there is sufficient information to enable potential objectors to review the amounts claimed and to ascertain whether there are matters to which objection should be taken.

85 From my experience in matters associated with insolvency administrations, I know the hourly rates specified by the Administrators to be commensurate with the hourly rates typically charged by insolvency practitioners.[63]

86 Although a prima facie case has been made out, the Court is still required to review the claimed remuneration, taking the matters identified in s 60-12 of the Practice Schedule into account.

Power of Court to approve the Administrators' remuneration for the Post-Administration Period

87 As is apparent from the matters set out in paragraphs 16 to 28 above, in particular paragraphs 26(a) and (b), the Liquidator originally opposed the Administrators' application for approval of their remuneration incurred during the Post-Administration Period, amongst other things, however the parties subsequently reached agreement on this (and other questions). At least initially, therefore, the power of the Court to approve the Administrators' remuneration for the Post-Administration Period was in issue between the parties.

88 Although the parties have reached agreement on this now, the Court still needs to be satisfied that it has the power to approve the Administrators' remuneration incurred in the Post-Administration Period.

89 Considering the provisions of the Act prior to the changes brought about by the ILRA, Barker J in Huxtable, in the matter of Timeshare Resort Club Ltd (in liq)[64] held that an administrator was not entitled to remuneration under the Act (the relevant provision at that time being the former s 449E of the Act) for work done before their appointment as administrator or after the termination of the administration.[65] However, his Honour pointed out that an administrator may be entitled to recover remuneration if there is 'an express or implied contract between the administrator ... and the company in respect of such work'.[66] Alternatively, an administrator may be entitled to recover reasonable payment on a quantum meruit basis.[67]

90 There is also authority for the proposition that the Court can approve remuneration and expenses incurred by an administrator for work conducted by them following the termination of their appointment. In Re PPI Corporation Pty Ltd,[68] Gardiner AsJ referred to Timeshare and then accepted that the evidence in the case before him established that the administrators had been engaged by the liquidators to perform the post-administration work, effectively as their agents.[69] Gardiner AsJ held that the administrators were entitled to remuneration for that work, utilising s 447A of the Act to modify the operation of Part 5.3A of the Act so as to make orders in respect of that remuneration.[70]

91 Importantly, in the case under consideration the agreement between the parties, as reflected in the Settlement Letter and as explained to the Honourable Justice Connock on 24 February 2021, involves the Liquidator acknowledging that the remuneration sought by the Administrators for the Post-Administration Period concerned work approved by the Liquidator and conducted to assist with handover tasks for the liquidation of the Company. Therefore, the Administrators' remuneration for the Post-Administration Period falls within the exception referred to in Timeshare as applied in PPI Corporation. Section 90-15(3)(f) of the IPS expressly refers to the Court having power to make orders in relation to remuneration. It was common ground between the parties, by the time of the hearing on 24 February 2021, that in such circumstances the Court has power to order the remuneration.[71]

92 Accordingly, I am satisfied that, in this instance and in the particular circumstances now before me, the Court has power to approve the Administrators' remuneration for the Post-Administration Period. It is important to note, however, that I go no further than accepting that the Court has power to make orders in respect of the Administrators' remuneration after the termination of the administration where the Liquidator has authorised the work done and agreed to the quantum. In particular, I have not been asked to determine, and nor have I determined, the issue more broadly, being the Substantive Issue as described at (a) of paragraph 25 above.

93 As noted above, the liquidators seek approval for their remuneration in the amount of $83,049.50 (plus GST) as Additional Remuneration and $10,000 (plus GST) for Future Remuneration.

94 In terms of the matters identified in s60-12 of the Practice Schedule, I am satisfied that:

(a) save for the items referred to in paragraph 97 below, the work performed by the Administrators was necessary and properly performed;

(b) as set out above, some of the work required of the liquidators was complex. In particular, work such as trading on the Company's business, dealing with debtors in the context of some of the debtors having been purchased by Westpac, dealing with the question of fees, costs and expenses for the Post-Administration Period and the Equitable Liens, and the handover to the Liquidator were particularly complex;

(c) while the period of the administration period was short, the primary assessment is whether the work performed was reasonably necessary and whether the time taken for it to be performed was reasonable;

(d) trading on the Company's business involved a higher level of risk and responsibility than is usually the case, particularly in circumstances where several key staff of the Company were lost during the trade-on period. In addition, dealing with the question of fees, costs and expenses for the Post-Administration Period and the Equitable Liens, involved a higher level of risk or responsibility than was usually the case;

(e) the Administrators were required to deal with one or more controllers (being the Liquidator) and, while Westpac did not appoint a receiver in its capacity as secured creditor, it was proactive in managing its interests; and

(f) the remuneration was calculated on a time basis, and the time taken for each task and the level of employee performing that task is set out in sufficient detail, by reference to the WIP Reports and the Remuneration Report.

95 I accept that the Administrators' work has benefited the creditors of the Company (for example, preservation of assets and recovery of assets such as debtors, along with the initial trade-on period) and that to the extent there was not a direct benefit, it was work necessary for the conduct of the administration and liquidation.

96 I have reviewed the Remuneration Report and the WIP Reports, along with the description of work performed given in the First Warwick Affidavit. These contain sufficient detail for me to be generally satisfied as to the amounts claimed. In particular, and apart from the matters referred to paragraph 97 below, I am satisfied that:

(a) there was an appropriate degree of delegation of the work to be performed, in that the matters which were of a more routine nature were performed by more junior employees and charged at lower hourly rates;

(b) the tasks described are reasonable and necessary to have been performed, and the time taken to perform them (and therefore the amounts charged for them) were reasonable; and

(c) there is no evidence of duplication, or unnecessary duplication, of work.

97 In respect of the Administration Period, I consider that the amount of $6,371 should be deducted from the Discounted Administration Fees. This comprises two amounts:

(a) $1,016, which I consider to be unnecessary, as it relates to remuneration incurred in an excessive number of persons attending the first meeting of creditors. From my review of the Administration Period WIP Report, it appears that two of the Administrators (Ms Warwick and Mr Hansell), Patrick O'Brien (Managing Director), James Macreadie (Associate 2), James Mazzone (Senior Consultant 1), Robert Beaumont (Senior Consultant 1) and Ian Morton (Senior Director) all attended that meeting. I do not see why it was necessary for so many personnel to attend, and so I will not allow the attendances by Mr Macreadie and Mr Morton; and

(b) $5,355, which is the total amount referrable to the time entered by Jonathan Chee in the Administration Category on 8 occasions with the narration "matter oversight and internal corro" or "matter review and general corro", as I consider those narrations to be so vague as to not provide sufficient information to enable me to determine whether those amounts are reasonable or not.[72]

98 None of these amounts are described in the Administration Period WIP Report as relating to the Equitable Liens. The basis used by the Administrators for arriving at the Discounted Administration Fees amount is explained, other than by reference to the agreement with the Liquidators. Therefore, I consider that this amount of $6,371 should be deducted from the Discounted Administration Fees.

99 I have also reviewed the Post-Administration WIP Report and note for the record that if it was not for the substantial discount already applied by the Administrators to arrive at the Post-Administration Capped Amount and then the agreement with the Liquidator, I would have discounted the Post-Administration Fees in respect of a number of items. Since the discount is more than those items would amount to, there is no need for or utility in me setting out those items. Therefore, I will not make any adjustment to the Discounted Post-Administration Fees. The same can be said in relation to the Discounted Equitable Lien Fees.

100 Accordingly, the Administrators Discounted Remuneration will be reduced by $6,371, so that the total remuneration to be approved is $320,988.45, excluding GST.

101 For all the reasons set out above, orders will be made as follows:

(a) approving the Administrators' remuneration in the amount of $320,988.45 (excluding GST), comprising:

(i) $81,254.34, being the Administrators' remuneration relating to work done secured by the Equitable Lien (i.e. the Discounted Equitable Lien Fees);

(ii) $183,024.46, being the Administrators' ordinary remuneration for the Administration Period; and

(iii) $56,709.75, being the Administrators' ordinary remuneration for the Post-Administration Period (i.e. the Discounted Post-Administration Fees).

(b) approving the Internal Disbursements, in the amount of $1,851. I am satisfied that these disbursements were reasonably and necessarily incurred; and

(c) the Administrators' costs of the proceeding are costs in the liquidation of the Company, payable under s556(1)(dd) of the Act. In making this order, it needs to be pointed out that this does not signify that the Court has reviewed and approved the amount of those costs. Such costs are usually either the subject of agreement between the parties (in this case, the Administrators and the Liquidator have already reached an agreed amount, as reflected in the Settlement Letter) or there are processes in place to deal with them, such as by a taxation of costs.

102 The parties are to confer and provide my Chambers with an agreed proposed form of order to give effect to this decision, by no later than one week following delivery of these reasons.

WITS HOLDINGS PTY LTD (IN LIQUIDATION) (ACN 050 322 284)

STEPHEN MICHELL in his capacity as liquidator of WITS HOLDINGS PTY LTD (IN LIQUIDATION)

[3] First Warwick Affidavit, [11]-[15].

[5] First Warwick Affidavit, [17]-[18].

[6] First Warwick Affidavit, [29]-[30].

[9] First Warwick Affidavit, [51], [53].

[10] First Warwick Affidavit, [39]-[50].

[12] The order referring the proceeding to me was made pursuant to r 77.05 of the Rules and, if required, pursuant to r 16.1(3) of the Corporations Rules.

[13] Fifth Warwick Affidavit, [7]; Exhibit KW-25.

[14] Administrators' further submissions dated 23 March 2021, [5].

[15] See also transcript of hearing 24 February 2021, p 7, pp 13-14.

[16] Fifth Warwick Affidavit, [15]; Settlement Letter.

[17] Fifth Warwick Affidavit, [21]. I note that the sum of the Discounted Equitable Lien Fees, the Discounted Administration Fees and the Discounted Post-Administration Fees is $327,359.55, not $327,359.45 as stated in the Fifth Warwick Affidavit, a difference of 10 cents. I assume this is simply a typographical error.

[18] [2020] VSC 8, [28].

[19] [2020] VSC 601, [18]-[32].

[22] There are some minor changes to the language used: for example, s 60-12 of the Practice Schedule refers to the extent to which the work was 'necessary and properly performed', whereas s 4449E(4) of the Act referred to the extent to which the work performed was 'reasonably necessary'.

[23] [2012] VSC 650 (14 December 2012).

[24] [2011] VSC 380; (2011) 85 ACSR 144 ('Thackray').

[25] Traditional Values [60], citing Thackray [2011] VSC 380; (2011) 85 ACSR 144, [63]-[64] (citations omitted).

[26] [2017] NSWSC 668 ('Sakr').

[30] [2017] NSWCA 38 ('Sanderson').

[34] First Warwick Affidavit, [9]-[10].

[35] First Warwick Affidavit, [60]; Third Warwick Affidavit, [9].

[38] First Warwick Affidavit, [22]; Exhibit KW-3 is a copy of the Remuneration Report.

[41] First Warwick Affidavit, [17(a)].

[42] First Warwick Affidavit, [17(b)].

[43] First Warwick Affidavit, [17(c)].

[44] First Warwick Affidavit, [17(d)].

[45] First Warwick Affidavit, [17(e)].

[46] First Warwick Affidavit, [17(f)].

[47] First Warwick Affidavit, [35(a)].

[48] First Warwick Affidavit, [35(b)].

[49] First Warwick Affidavit, [35(c)].

[50] First Warwick Affidavit, [35(d)].

[51] First Warwick Affidavit, [35(e)].

[52] First Warwick Affidavit, [35(f)].

[53] First Warwick Affidavit, [22]; Exhibit KW-3 is a copy of the Remuneration Report.

[54] First Warwick Affidavit, [24], [33]; Exhibit KW-4 is a copy of the Administration Period WIP Report; Exhibit KW-5 is a copy of the Post-Administration Period WIP Report.

[55] First Warwick Affidavit, [25]-[27].

[57] First Warwick Affidavit, [43]-[48].

[58] The data in this table is drawn from paragraphs 17 and 23 of the First Warwick Affidavit and the Remuneration Report.

[59] The data in this table is drawn from paragraphs 17 and 23 of the First Warwick Affidavit and the Remuneration Report.

[63] The hourly rates for FTI Consulting used in this administration are contained in Schedule 3 to the Remuneration Report: see Exhibit KW-3 to the First Warwick Affidavit.

[64] [2010] FCA 673 ('Timeshare').

[65] Timeshare, [73] citing Skafcorp Ltd v Jarol Pty Ltd [2002] NSWSC 1183 [16] - [17] (Austin J) ('Skafcorp').

[66] Timeshare, [74]; see also Skafcorp, [16]..

[67] Timeshare, [74]; see also Skafcorp, [16].

[68] [2014] VSC 366 ('PPI Corporation').

[71] Transcript of hearing 24 February 2021, pp. 13-14.

[72] These are the entries as described in this paragraph, for the dates 28 March 2019, 1-6 April 2019 and 9 April 2019.