Warner v Mayfair Limited, in the matter of the Personal Insolvency Agreement of Gore

IN THE MATTER OF THE PERSONAL INSOLVENCY AGREEMENT OF CRAIG KIRRIN GORE BETWEEN: ANTHONY JOHN WARNER IN HIS CAPACITY AS TRUSTEE OF THE PERSONAL INSOLVENCY AGREEMENT OF CRAIG KIRRIN GORE

JUDGE: Farrell J DATE: 9 June 2015 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 11 May 2015, I delivered reasons for judgment and made orders in relation to an application for directions by Mr Warner in relation to moneys in his hands as the trustee of the personal insolvency agreement of Mr Craig Kirrin Gore ("PIA"): see Warner v Mayfair Limited, in the matter of the Personal Insolvency Agreement of Gore [2015] FCA 441. 2 I ordered that the respondents provide to my Associate their claims for their reasonable costs of and incidental to the application and allowed a further opportunity for the parties to provide submissions in relation to the claims made. 3 The amount in the PIA account as at 29 May 2015 was $295,156.01. 4 GFC09 provided details of solicitors' professional fees, counsel's fees and disbursements in an aggregate amount of $60,359.31 (GST inclusive). Taking into account the comment that I made in my reasons for judgment at [126], Clamenz Lawyers reduced their claimed professional costs from $41,767.04 to $30,000 which meant that GFC09 claimed its reasonable costs to be $48,592.27 (GST inclusive). Given that GFC09 abandoned its claim to the funds in Mr Warner's hands only immediately preceding the hearing, I consider that this reduction is appropriate. Having said that, I note that GFC09 performed a valuable role as a contradictor in relation to the ultimately successful argument that the balance of the funds in Mr Warner's hands after payment of appropriate costs should be paid to Mr Gore's trustee in bankruptcy in circumstances where Mr Gore's trustee in bankruptcy did not have the funds necessary to prosecute that argument. I accept that the amount of $48,592.27 (GST inclusive) is reasonable. 5 The first to fourth respondents advised that their solicitors' professional fees, senior counsel's fees and disbursements were an aggregate amount of $146,369.77, but also taking into account my comment at [126], the first to fourth respondents would claim an amount of $126,981.80 comprising solicitors' costs of $75,000 (GST exclusive, as the first to fourth respondents are foreign companies instructing from outside Australia) and senior counsel's fees of $51,981.80 (GST inclusive). Although this substantially exceeded the amount which Mr Warner would be entitled to recover, the first to fourth respondents submitted that these costs were reasonable, among other reasons because: Mr Warner's application gave rise to novel and controversial issues; Affidavit material filed by GFC09 foreshadowed that not only would it call into question whether a dividend of $201,086.76 was payable to Mayfair Group in priority but also whether proofs of debt in excess of $152 million had been released which would have consequences beyond the scope of the PIA. Mayfair Group submitted that it was necessary for senior counsel to address this material and senior counsel provided valuable assistance to the Court in the articulation and resolution of the issues in dispute; Mr Warner had no interest in or capacity to address some of the issues raised by GFC09; and Common representation by Clayton Utz and Mr O'Donnell QC of the first to fourth respondents in the proceedings minimised their costs. 6 Taking into account these issues, although the amount claimed by the first to fourth respondents substantially exceeds the amount of $76,000 (GST inclusive) and some minor disbursements which Mr Warner may claim, I accept that the amount of $126,981.80 claimed by the first to fourth respondents of and incidental to Mr Warner's application is reasonable in all of the circumstances. 7 No submission objected to the amounts claimed by the other parties. 8 I will therefore make orders accordingly. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.