Westpac Banking Corporation v Smith

Federal Court of Australia|2020-09-08|Before: Rares J

The cross claim be dismissed.
The parties provide submissions limited to five pages and to file and serve any evidence on the question of costs by 24 September 2020.
The matter be set down for an interlocutory hearing on the question of costs on a date to be fixed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RARES J: 1 This is an application under s 423(1)(b) of the Corporations Act 2001 (Cth) by Josephine Smith (Ms Smith) and two companies which she controls, Smith & Smith Investments Pty Limited and Nouveau Pacific-A Pty Limited, for an order that there be an inquiry about the conduct of the receivers of those two companies Morgan Kelly and Robyn Duggan. During the course of argument today, the scope of the inquiry narrowed into one as to the length of the receivers' engagement of a hotel consultant, Jack Lucas, and the associated costs of $112,109 incurred by the receivers for Mr Lucas' services. The receivers' incurred a total of $465,941.30 for their costs and disbursements. 2 Westpac Banking Corporation appointed the receivers on 8 May 2015 under securities that Ms Smith had caused the companies to grant to it. Earlier, on 2 February 2015 Westpac had advanced $5,850,000 to the cross-claimants to enable Smith & Smith to purchase the land on which stood the Lucky Australian Hotel at St Marys, a Sydney suburb, and Nouveau to purchase the business of a licensed gaming hotel conducted on that land. As part of the securities to support her guarantee of that advance Ms Smith also granted Westpac a mortgage over a valuable home unit at Pyrmont (the Pyrmont unit). Ms Smith falsely represented to Westpac that she was the sole registered proprietor of, and entitled to the absolute beneficial interest in, the Pyrmont unit. 3 On 8 May 2015, after discovering that Ms Smith only held a 50% interest in the Pyrmont unit pursuant to orders of the Supreme Court of New South Wales, Westpac exercised its security interests over all of the properties. On the evening of that day Mr Kelly attended at the hotel premises and investigated how it was managed. By about Tuesday 12, or Wednesday 13, May 2015 he had decided to terminate the appointment of Ms Smith's brother, Anthony, as licensee, and her daughter as operations manager and appointed a new licensee, Angelo Kotsopoulos. The circumstances in which the Westpac came to exercise its securities involved a much more complex background that is not necessary to recite in detail here. 4 The hotel licence, under the Liquor Act 2007 (NSW), allowed it to operate gaming or poker machines, which accounted for about half of its weekly turnover. The hotel was in an area in Sydney that the Independent Liquor and Gaming Authority designated as Band 2. The cross-applicants (to whom I will refer to generically as Ms Smith or the cross-claimants) complain that Mr Kelly's engagement of the hotel consultant for the duration of the receivership, in essence caused excessive expense to the mortgagors under the securities and that I should order an inquiry into that issue pursuant to s 423(1) which provides: 423 Supervision of controller (1) If: (a) it appears to the Court or to ASIC that a controller of property of a corporation has not faithfully performed, or is not faithfully performing, the controller's functions or has not observed, or is not observing, a requirement of: (i) in the case of a receiver - the order by which, or the instrument under which, the receiver was appointed; or (ii) otherwise - an instrument under which the controller entered into possession, or took control, of that property; or (iii) in any case - the Court; or (iv) in any case - this Act, the regulations or the rules; or (b) a person complains to the Court or to ASIC about an act or omission of a controller of property of a corporation in connection with performing or exercising any of the controller's functions and powers; the Court or ASIC, as the case may be, may inquire into the matter and, where the Court or ASIC so inquires, the Court may take such action as it thinks fit. (emphasis added) 5 Ultimately, receivers entered into a contract to sell the land and hotel business on 27 November 2015. The sale was completed on 18 May 2016, the land, realising $4,690,000, and the hotel business $1,198,000. 6 Following the sale, there was a deficiency of $804,648.42 in the amount still owing by Smith & Smith and Nouveau to Westpac. That required the Pyrmont unit also to be sold under the mortgage that Ms Smith had granted in support of her guarantee of the obligations of her two companies. The Pyrmont unit ultimately realised about $6,750,000. 7 Westpac had to sell the hotel and business before the Pyrmont unit, which, if sold, would have been likely to realise the whole of the money secured by the mortgages because third parties were interested in the unit but had no rights in respect of the other securities. Those third parties were the trustee in bankruptcy of Ms Smith's then partner and that partner's ex-wife, to the latter of whom he owed a judgment debt of over $2.3 million pursuant to orders of the Supreme Court of New South Wales: see Young v Thompson (formerly trustee of the property of Young) (2017) 253 FCR 191. 8 Had the Pyrmont unit been able to be sold promptly, the length of the receivership may have been lessened, although that is not necessarily the case because there were other issues that caused delay of its sale, including a claim in the Supreme Court against the builder of the unit which subsequently resolved.

The legal costs and disbursements chargeable under the securities 9 The cross-applicants originally sought an order that Westpac be ordered to account for the costs and expenses of its conduct as mortgagee in possession of each of the hotel business, the hotel property and the Pyrmont unit. During the course of this proceeding, Ms Smith caused the bills of the legal costs and disbursements of both the receivers and Westpac to be assessed under the provisions of the Legal Profession Act 2004 (NSW). On 21 July 2020, the Supreme Court sent two costs assessments to Ms Smith's solicitors that reduced the total legal costs and disbursements that Westpac and the receivers had sought to charge to the accounts of the mortgagors as follows: Legal costs and disbursements Westpac Receivers Total As originally claimed $594,637.26 $174,683.18 $769,320.44 Reduction $76,168.25 $45,273.80 $121,442.05 Final sum due by costs assessment $518,469.01 $129,409.38 Total (incl GST) $647,878.39

10 The overall reduction was about 16%, but the reduction in the receivers' assessed legal costs and disbursements was about 26% less than originally claimed. However, part of those total amounts included Westpac's legal costs and disbursements in relation to enforcing its security over the Pyrmont unit and, so, did not relate to the receivership directly.

The running of the hotel 11 Ms Smith filed an outline of evidence for this hearing but she did not give evidence. Westpac and the receivers tendered part of it as an admission that, when her companies acquired the hotel and the business on 2 February 2015, Nouveau employed three kitchen staff, four bar staff, a casual for work at the bar, her brother as licensee and manager, and her daughter, Hayley, as the operations manager of the hotel. Both her brother and daughter worked on a full-time basis. Nouveau also engaged, one day per week, a bookkeeper to manage the hotel's accounts. Ms Smith said that for the first six weeks following the acquisition she attended the hotel daily to oversee the implementation of systems for the functioning of its business, until, as far as she was concerned, those systems were in place and the hotel was functioning satisfactorily. Thereafter she attended at the hotel, as the owner, on average, two days per week. 12 Mr Kelly, whose evidence I accept, said his prime concern when acting as a receiver was to ensure the receivership assets were protected and preserved and that the value of those assets did not deteriorate from the time of his appointment. He gave evidence that, over the previous 10 years, he had acted on very many appointments as a receiver of licensed hotel premises the business of which included having gaming machines on them. Ordinarily, his usual practice was to engage a hotel consultant who was also familiar with the duties of receivers, to deal with operational and licencing issues that arose in the management of the receivership because he considered it necessary to have such expert assistance. Mr Kelly said that his firm, Ferrier Hodgson, who are well known accountants and professional insolvency practitioners, frequently retained Mr Lucas. Mr Kelly had retained Mr Lucas for about 40% of the receiverships to which he had been appointed, but had also engaged other hotel consultants for the balance. 13 Mr Kelly explained that the role of a hotel consultant in receivership, such as Mr Lucas, was: to ensure that the hotel operated in a compliance with the legislation (principally, the Liquor Act) and to supervise the licensee, in this case, Mr Kotsopoulos. to report to Mr Kelly on what was happening in the conduct of the business, here, at the Lucky Australian Hotel, and about its trading; and to maintain and preserve the integrity of the receivership assets. 14 Mr Kelly said that he had a very good understanding of what Mr Lucas did day to day through, first, Mr Lucas's regular reporting to him which was, at least, monthly (so that the receivers could provide their appointer with monthly reports), and sometimes more often, about his activities and, secondly, reports from his (Mr Kelly's) subordinates in his firm as to the work that Mr Lucas was doing as, and when, required. 15 Mr Kelly explained that Mr Lucas was "a safe pair of hands with respect to a venue". Mr Kelly based that understanding on his knowledge of Mr Lucas, whose 20 years' experience included as a licensee and hotel consultant and who had professional involvement with the Australian Hoteliers Association and the Authority. Mr Kelly explained that, whereas he considered Mr Kotsopoulos to be a very fine day to day manager, Mr Lucas was more experienced and able to deal with the overall management of a gaming hotel in a professional manner. That was because of Mr Lucas' much longer experience as a licensee and hotel consultant, who had advised on a variety of situations that arose during previous receiverships. On Mr Kelly's understanding, Mr Kotsopoulos had had experience as a licensee for only the preceding five years before his appointment at the hotel. Mr Kelly said that it was necessary for him, as a receiver, to be careful, that nothing was done, or allowed to occur, that might be a breach of the hotel's licence or relevant legislation that could have an adverse impact on the value or realisation of the mortgagee's security in the hotel property or business. 16 Mr Kelly explained that during the course of the receivership a number of issues had prolonged it, some of which were attributable to Ms Smith's conduct. First, she had sought to refinance her debt, through Westpac and then other financiers. Secondly, she sought, but failed, to obtain an injunction from Rein J in the Supreme Court on 27 November 2015 to prevent the receivers' entry into the contract of sale. Thirdly, the receivers had to deal with the consequences of two caveats lodged on the title of the hotel. Ms Smith lodged a caveat on 30 November 2015 that claimed, in her own name, "equitable interest pursuant to equity of redemption". Later, Ms Smith's finance broker lodged a caveat on about 15 March 2016 that claimed an equitable interest said to have been granted by Smith & Smith on 26 August 2015. However, in the circumstances, because it was in receivership, Smith & Smith was no longer under Ms Smith's legal control and, as a result, could not, and did not, grant any such equitable interest or enter into any such contract. In early January 2016, Ms Smith's brother lodged a claim under the Personal Properties Securities Act 2009 (Cth) that he had a security interest in some of the property at the hotel. That claim ultimately was resolved by agreement with the receivers and Westpac. 17 In addition, in January 2016 the hotel experienced some storm damage that appears to have revealed termite damage to an outside stage.

The basis of the cross-claimants' claims 18 Ms Smith relied on an expert report prepared by Robert Jacobs, an experienced Western Australian insolvency and accountancy practitioner. Mr Jacobs had been a registered liquidator in Western Australia and had been involved for about 35 years in various forms of external administration. He had spent about five years, between 2005 and 2010, as an insolvency and accountancy practitioner in India. He prepared a report that identified a number of matters that he considered could raise the need for an inquiry or the provision of further information to explain aspects of the receivership. 19 In the event, only Mr Jacobs' concern relating to the length of Mr Lucas' retainer was pursued at the hearing. During the course of his evidence, Mr Jacobs abandoned two small concerns that he had expressed in his reports. During address Ms Smith abandoned two other claims that involved charges for what, until then, he had considered may have been unreasonable and warranted further inquiry. Those claims related to 18.5 hours filing and labelling of files worth $4804, and 17.5 hours updating and reviewing a checklist worth $4550. Mr Jacobs opined that this work should not have been charged at the rates for more senior staff when more junior staff in the receivers' firm could have undertaken part of this work. However, any relevant reductions that might have been made by reassigning some of the work to the lower paid staff, would only have resulted, at best, in a total reduction of about $1000. An inquiry into those two matters would have achieved nothing of any substance and cost far more than any saving. 20 Mr Jacobs' opinions about Mr Lucas' retainer and its length must be approached in the context of both his other comments on the receivership and the limitations of his expertise. He said that: overall, the fees charged by the receivers appeared to be reasonable, as was the scale of their expenses and disbursements; the receivers' approach to the sale of the hotel and business appeared appropriate and complied with s 420A of the Act; the receivers had not charged for the performance of work which could reasonably be expected to have been performed by the hotel consultant. 21 Relevantly, Mr Jacobs qualified the last of those observations by saying "however the work performed by the hotel consultant could reasonably have been performed by the hotel manager and/or the receivers". 22 Mr Jacobs opined that Mr Lucas' role as hotel consultant was redundant, and the task performed by him could reasonably have been performed by either the licensee or the receivers. As may be apparent, in expressing that opinion, Mr Jacobs accepted that the receivers' and their staff's hourly rates exceeded by a significant amount that of Mr Lucas. During the course of his oral evidence, Mr Jacobs concentrated on suggesting that Mr Lucas' role was redundant because the licensee could have performed the work, and Ms Smith's submissions adopted that position. 23 In particular, in his supplementary report, Mr Jacobs said that the purpose and scope of the engagement of a consultant could vary depending on a business' need and the difficulties it was facing, but: [i]t is my opinion that full time consultants are engaged in rare circumstances. I would not engage a consultant beyond an initial period during which the consultant gave directions to a licensee manager, and that would depend on the experience and suitability of the licensee manager. The rare circumstances would be where there was a security issue, a peculiar licensing issue, or the hotel involved large and complex operations, not foreseeably, at "entry level" pub. (emphasis added) 24 Mr Jacobs took the expression "entry level" from the advertisement that the receivers published for the sale of the hotel. That described it as "an entry level gaming hotel". Mr Jacobs had never heard of the expression and had no familiarity with the conduct of a gaming hotel. He said that if he had been in Mr Kelly's position, and with his (Mr Kelly's) experience in 60 hotel appointments in the preceding 10 years, "it is unlikely that as an experienced controller [or receiver] I would have needed to engage a consultant to assist". He also asserted that he would have found a consultant who would not need to travel the substantial distances that Mr Lucas had to from his home in eastern Sydney to the far western suburbs of Sydney, but would have hired someone who lived nearer to the hotel. 25 Mr Kelly said that he was not aware of anyone in the area of St Mary's who would have been able to undertake the role of a consultant, and that he had full confidence in Mr Lucas's ability, based on his and his firm's previous significant experience in a receivership situation, of him being able to offer consultancy services about the management and conduct of licenced premises in New South Wales. 26 Mr Jacobs' evidence, however, presented a number of difficulties as to his expertise and capability to express an expert opinion as to the appropriateness of the receivers' engagement of Mr Lucas. First, Mr Jacobs had not done any work, at any level, in a receivership of licensed premises for the past 15 years, and, when he had so acted, it was not as the receiver but as an employee of a professional receiver. Secondly, he had not done any receivership work involving licensed premises outside Western Australia. Thirdly, in particular, he had no experience with licensed premises in which gaming machines were located, or the licensing or legislative requirements for operating such premises. He did not have any knowledge of the regulatory environment in New South Wales, in relation to matters such as smoking, the requirements of the Liquor Act for the responsible service of alcohol, a three-strikes policy about the tenure of licenses, requirements for closed-circuit television (or CCTV) equipment, New South Wales workplace health and safety requirements, poker machine regulations, or whether the relevant regulations in force in New South Wales during the time of the receivership were the same as those with which he had been familiar 15 years or more before in Western Australia relating to similar issues. Fourthly, his experience as a receiver was limited to about five appointments, none of which were to do with licensed hotels. 27 In giving his evidence, Mr Jacobs was challenged on his ability to express an opinion about the retention of Mr Lucas. He said, in relation to pubs, hotels or premises that, when he was an employee of a receiver in or before 2005: "That's what I do. I mean, I might be a different insolvency practitioner than others, but that's what I do. I go in day one, myself, and make those calls." 28 As the receivers and Westpac pointed out, Mr Jacobs' observations appeared to reflect his own personal approach, as an individual, based on his acting as an employee of a receiver in or before 2005. That approach did not satisfy the requirement in s 79(1) of the Evidence Act 1995 (Cth) that he have specialised knowledge, based on his training, study or experience as to how professional receivers of licensed premises involving gaming machines in New South Wales, would act, or ought to have, acted in the circumstances in which Mr Kelly and Ms Duggan found themselves in the receivership of the hotel. For those reasons I do not give his opinion any substantive weight.

Principles for ordering an inquiry 29 In Leslie, in the matter of the Aboriginal Councils and Associations Act 1976, v Hennessy [2001] FCA 371 at [3]-[6], [8], Ryan, Dowsett and Hely JJ said of an analogue to s 423(1), namely s 536 of the then Corporations Law, being the power of the court to order an inquiry into the conduct of a liquidator: 3. In considering this provision Young J said in Burns Philp Investment Pty Ltd v Dickens (No 2) (1993) 10 ACSR 626 at 633 [31 NSWLR 280 at 287E-G]: Mr Campbell QC for the plaintiffs, put that the barrier over which the plaintiffs should be made to pass to have an inquiry mounted should not be a very high one and that all that was necessary for his clients to show was that there was a prima facie case that something needed to be investigated. In my view this is correct. The Court at this stage should not make any finding on the reasonableness or otherwise of the liquidator's conduct, but if there are sufficient matters prima facie calling for further investigation then, subject to proper safeguards as to the scope of the inquiry, an inquiry should be permitted. To deny an inquiry would mean that the people who were paying the liquidator's fees would have no way in which the quantum could be challenged. 4. In Belvista Pty Ltd v Murphy (1993) 11 ACSR 628 at 630, [McLelland CJ in Eq] said: I wish to add that where, as here, a creditor or other interested party wishes to challenge the decision of a person in the position of a scheme administrator, or a liquidator, apparently arrived at in good faith, it is generally inappropriate to utilise the "complaint" provisions of s 536 of the Corporations Law rather than the "appeal" provisions of s 1321. As I observed in Northbourne Developments v Reiby Chambers Pty Ltd (1989) 8 ACLC 39 at 43 [19 NSWLR 434 at 438F-G] in relation to the predecessor of s 536, that section is concerned with aspects of the conduct of liquidators and others which are liable to attract sanctions or control for what might be broadly described as disciplinary reasons. 5. Finally, in Nut Trading Co Aust Pty Ltd v KKL (Kangaroo Line) Pty Ltd (1997) 25 ACSR 580 at 619, Einstein J said: Some support for the proposition that the appellant must put forward material which justifies the court being satisfied that a report should be prepared may be gleaned from the approach taken by Young J Investment in Burns Philp Pty Ltd v Dickens … . There the applicants had sought relief under s 536 of the Corporations Law which is relevantly equivalent to s 420 of the Code. The section enables the court, if it appears that a liquidator is not faithfully performing his or her duties, to conduct an inquiry into the performance of the liquidation and to make consequential orders. 6. Drummond J found that there was no basis for ordering an inquiry or granting other relief pursuant to s 536. In so doing, his Honour adopted the approach taken by Young J in Burns Philp Investment Pty Ltd v Dickens (No 2). The appellant disputes the correctness of that approach, saying that the requirement that there be a "prima facie case" places an unjustifiable gloss upon the section. If the expression "prima facie case for investigation" used by Drummond J in par 12 of his reasons be taken to have some technical meaning, then there might be some merit in this criticism. The appellant's written submissions conceded that, on current authority, the applicants must show a "prima facie case". See eg the cases referred to in McPherson The Law of Company Liquidation 4th Edition at p 388. However, we believe that both Young J and Drummond J were describing something less formal than a prima facie case according to some evidential burden of proof. Their Honours both meant only that an applicant must show a sufficient basis for making an order, that there is something which requires inquiry. The Court then has a discretion which it must exercise. Many factors will be relevant to that exercise. They include the strength and nature of the allegations, any answers offered by the liquidator, other available remedies, the stage to which the liquidation has progressed, the likely amounts of money involved, the availability of funds to pay for any inquiry, the likely benefit to be derived from it and the legitimate "interest" of the applicant in the outcome. …. 8. …The scope of any inquiry is within the discretion of the Court. In most cases, any inquiry would be limited to the specific subject of complaint. The section does not contemplate a detailed investigation of the whole of the liquidator's conduct simply because a specific allegation of misconduct has been made. There may be cases in which there is reason to believe that the whole of a liquidation (or, for that matter, other liquidations - Commissioner for Corporate Affairs v Harvey [1980] VR 669 at 689 (l)) has been infected by error or misconduct. In those circumstances the Court might be justified in ordering a general inquiry, but this would be a very rare occurrence. It follows that, if an applicant cannot demonstrate that any one of numerous matters of complaint requires investigation, the cumulative totality of those matters will rarely justify a general inquiry into the liquidation. (emphasis added) 30 In Oswal v Carson (in their capacity as receivers and managers of Burrup Fertilisers Pty Limited (receivers and managers appointed) (No 3) (2013) 300 ALR 149 at 158-162 [52]-[78] Siopis J reviewed the authorities on s 423(1)(b) including Hall v Poolman (2009) 75 NSWLR 99, 120-121 [59] where Bathurst CJ, Hodgson J and Austin J followed Leslie [2001] FCA 371, see at 126 [87] and 135 [129]. In Northbourne 19 NSWLR at 438F-G (and see Leslie [2001] FCA 371 at [4]) McLelland J expressed the important qualification on when an inquiry might be ordered under a predecessor analogue of s 423(1)(b) in relation to the conduct of liquidators, saying: Section 420 is concerned with aspects of the conduct of liquidators which are liable to attract sanctions or control for what might broadly be described as disciplinary reasons. (emphasis added)

The cross-applicants' submissions 31 Ms Smith argued that there is a matter prima facie calling for inquiry because of the need, as Mr Jacobs perceived it, to know what tasks Mr Lucas had performed, when, if at all, it would have become unnecessary for him to continue to perform them, and what, if anything, the licensee did, or could have done, that would have obviated or reduced the need for Mr Lucas to act and charge the receivership for his services. In essence, she argued that Mr Kelly's continuing failure, after the initial appointment of Mr Lucas, ever to consider when his services might no longer be required, pointed to a matter that required or called for inquiry in accordance with s 423(1)(b). 32 Ms Smith relied on Hall 75 NSWLR at 127 [90], where the Court of Appeal discussed the expression in s 536(1)(b), which is relevantly analogous but not exactly so, with s 423(1)(b), "if a complaint is made to the court or ASIC with respect to the conduct of the liquidator in connection with the performance of his or her duty." There the Court of Appeal held that the expression would cover complaints about incompetence or lack of diligence as well as complaints about failure faithfully to perform duties. They held that natural and ordinary meaning of the words ought not be read down.

Consideration 33 Here, s 423(1)(b) allows a complaint to be made about an act or omission of a controller of the property, such as a receiver, of a corporation "in connection with performing or exercising any of the controller's functions and powers". The court, relevantly, may inquire into the matter and may take such action as it thinks fit. Thus a complaint about a controller's lack of diligence is within the scope of s 423(1)(b): cf: Hall 75 NSWLR at 127 [90]. Nonetheless, in my opinion, the power is still one to be exercised with appropriate caution as McLelland J explained in Northbourne 19 NSWLR at 438F-G; Belvista 11 ACSR at 630, which the Full Court applied in Leslie [2001] FCA 37 at [4], [6] and [8]. The power is enlivened to deal with conduct of a controller or receiver that is liable to attract sanctions or control for what might be broadly described as disciplinary reasons, which can include a lack of diligence. 34 The receivers had no onus to establish that their conduct was reasonable. Rather, the onus was on Ms Smith to show that there was a prima facie case for an inquiry to be ordered of the kind that the Full Court explained in Leslie [2001] FCA 371 at [6] and [8]. 35 Ordinarily, the court will allow a person in the position of a receiver or liquidator a degree of latitude in the exercise of business judgment in the performance or the conduct of his or her task. This is particularly so in a situation such as this where Mr Kelly was confronted with the necessity to run a licensed gaming hotel and preserve its value as a security pending sale. That asset's value was dependent upon the maintenance of its liquor licence in an area in which difficulties with compliance might be expected. It was essential that Mr Kelly ensured that he, and those for whom he was responsible, including the licensee, took reasonable care to ensure that the hotel was managed appropriately and in a way that safeguarded the secured asset, including its licence under the Liquor Act, the value of its land and business. 36 I accept that, as Ms Smith has pointed out, the substantial reduction in the amounts of those legal costs and disbursements that both Westpac, as mortgagee, and the receivers, could charge upon the secured estate raised her bona fide concern about the quantum of the overall receivership costs and expenses. However, the process under the Legal Profession Act for assessment of legal costs and disbursements is different to that with which s 423(1)(b) and its analogues deal, as the authorities that I have referred to explained. 37 Ms Smith raised no issue about any improper or other behaviour that might attract disciplinary sanctions in the costs assessment. Ms Smith initiated that process as of right under the Legal Profession Act during the course of this proceeding. She made no suggestion that the receivers somehow could have considered whether there had been any improper or wrongful charging by the solicitors. Indeed, Mr Kelly considered their accounts to be reasonable. The fact that an expert costs assessor, acting under his statutory powers, may have taken a different view as to the appropriate sum that was chargeable on the security is not to say that the receivers acted in a way that called for inquiry about their conduct in forming their view (through Mr Kelly) about the appropriateness of those costs. 38 In the result, the combined statutory costs assessment of legal costs and disbursements the subject of the securities, and the other costs and disbursements of the receivership, amounted to less than 10.5% of the value realised on the sale of the hotel and the business. 39 I am satisfied that Mr Kelly was entitled to have regard to the experience and business acumen of Mr Lucas. I reject Mr Jacobs' criticism of the receivers' appointment of Mr Lucas or its continuance on the basis that some of the work that Mr Lucas did could have been done by the receivers. If the receivers (assuming that they could have replicated Mr Lucas' expertise) had undertaken any of Mr Lucas' work it would only have been more, rather than less, expensive to the estate because of their and their staff's higher hourly rates. Accordingly, the receivers' decision (or "failure") to take on, or consider assessing, those tasks is not a matter that could require an order for an inquiry. 40 I accept Mr Kelly's evidence that it was appropriate to retain Mr Lucas. I am not satisfied that that retainer has been shown, at any time during its duration, to be such as, in all the circumstances, enlivened the power under s 423(1)(b) to order an inquiry into the receivers' performance or exercise of their functions and powers in retaining, continuing, or not reviewing the continuance of, Mr Lucas' retainer. 41 Mr Jacobs' evidence was insufficient to raise a basis on which an inquiry should be ordered. Tellingly, in her outline of evidence, Ms Smith explained that the management roles at the hotel, when she acted as owner, required her to work full time for 6 weeks while she satisfied herself about the systems that she had put in place for running its business. She also needed a full time licensee, such as Mr Kotsopoulos (or, as she decided, her brother) as well as an operations manager, a position that does not appear to have been replicated during the receivership. After she ceased working full time, the complexity of managing the hotel still required Ms Smith, as owner, to visit it twice a week. Mr Lucas also visited the hotel twice weekly in the subsequent parts of the receivership, after his initial intensive period of assessing the situation of the hotel, and then devising an appropriate management regime for it. 42 In that context, it is difficult to see how the receivers' decision to retain and continue to retain Mr Lucas to act as an experienced hotel consultant could be regarded as requiring an inquiry to be ordered under s 423(1)b) because that conduct could be characterised as involving a lack of appropriate diligence or as otherwise liable to attract sanctions or control for what might be described as disciplinary reasons: Northbourne 19 NSWLR at 438F-G; Leslie [2001] FCA 371 at [4], [6] and [8]. 43 Moreover, even if (contrary to my findings) I were satisfied that Ms Smith had made out some form of prima facie case, in the circumstances, I would not have exercised my discretion to order an inquiry: cf Leslie [2001] FCA 371 at [6]. First, the weakness of Mr Jacobs' evidence due to his lack of any relevant expertise in acting as a receiver of a licenced gaming hotel in New South Wales suggests that he was unable to assist in identifying a basis why an inquiry ought be ordered. Secondly, I have accepted Mr Kelly's evidence about his bona fide belief in the appropriateness of the retention of Mr Lucas' services throughout the receivership and the value that Mr Lucas' work brought to the performance of the receivership. Thirdly, the amount that might be recovered out of the $112,000 total fees paid to Mr Lucas, were an inquiry ordered, is likely to be dwarfed by the costs of any forensic examination of the conduct of an 11-month receivership and the tasks which Mr Lucas or others performed. Ms Smith accepted, in argument, that some of the amount paid to Mr Lucas would remain payable for the initial intensive period of his work immediately following the receivers' appointment. Such an inquiry would require detailed evidence about the work Mr Lucas did and the circumstances over the whole of the receivership. It would, or could, involve considerable time and effort of lawyers and, presumably, expert insolvency practitioners and others who would have to deal with Mr Lucas' work and charges. There would have to be a court hearing or one before a referee or other person appointed to conduct an inquiry. 44 While there can be no doubt that the receivers and their appointor, Westpac, would be able to fund any orders for return of any money derived from that exercise, I am not satisfied, having regard to all of the circumstances, that the likely return would be of a sum sufficient to warrant an inquiry, had I been persuaded (which I am not) that a prima facie case had been made out to the standard set in Leslie [2001] FCA 371 at [6] and [8]. And, of course, as the Full Court said, any inquiry necessarily would be limited to the one matter in issue, being Mr Lucas' continued retention as a consultant beyond some indefinite date when the circumstances might have changed.

Conclusion 45 In all of the circumstances, I am of opinion that Ms Smith's application for an inquiry fails. I will order that the cross-claim be dismissed subject to making orders as to the payment out of the sum of $123,254.85 as found by the assessor that Westpac paid into court. There are also, as Westpac and the receivers have pointed out, outstanding orders in the multiplicity of proceedings in which Ms Smith has been involved. Any such order might require notice to be given to third parties that money might be available to pay any party with an existing entitlement or claim, although it is unlikely to be the case. Westpac also wishes to seek orders about the amount that it paid into Court in relation to any final costs orders. 46 However, Ms Smith has been partially successful in substantially reducing the costs chargeable on the securities, albeit through the satellite process of an assessment of costs and disbursements. Westpac has accepted that it must pay interest on that sum and it calculated that it is liable to pay interest of approximately $25,000. The parties will need to check the basis of that calculation and determine whether any adjustments need to be made. Thus, although her claim against Westpac in one sense has failed, Ms Smith did establish through the cost assessment process, that she and her companies had been overcharged by a not insubstantial amount. 47 The parties should confer and seek to agree the interest figures, Westpac should identify its claims for costs, including if possible, by trying to negotiate or identify the basis on which I could make a lump sum party and party costs order. 48 At the moment, I am inclined to think that Ms Smith's success in having the legal costs and disbursements reduced might need some reflection in a modest reduction of the costs to which Westpac and the receivers would otherwise have been entitled, but I will need to hear from the parties on that question. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares.

Personal Properties Securities Act 2009(Cth)

Legal Profession Act 2004(NSW)

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