FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Letten (No 21) [2013] FCA 744

NOTE: For the purpose of this order:

(a)    “Corporate Defendants”, “Receivers”, “Scheme” and “Secured Lender” have the meanings ascribed to those terms in the Orders of Justice Gordon made in this proceeding on 25 February 2010 (“Appointment Order”), 4 March 2010 (“SY21 Appointment Order”) and 30 July 2010 (“Additional Schemes Appointment Order”);

(b)    “Remuneration Application” means the application of the Receivers by interlocutory process dated 17 June 2013 for approval of their remuneration, costs and expenses in respect of the period 1 January 2012 to 31 March 2013.

(c)    “Forty Fourth Affidavit” means the Forty Fourth Affidavit of Damian John Templeton sworn and filed in this proceeding.

UPON Damian John Templeton and Philip Hennessy, both in their capacities as Receivers and on behalf of KPMG, an Australian partnership, by their Counsel undertaking to the Court to pay:

(i)    to the relevant Secured Lender, if there remains any shortfall of monies due to the Secured Lender; or

(ii)    if there is no such shortfall, back into the bank account from which the interim payment was made, in order to be dealt with in accordance with paragraph 1 of the Orders of Justice Gordon made on 11 November 2010,

the amount (if any) by which the amount received by them as interim remuneration pursuant to the orders made hereafter exceeds the amount which in due course is fixed as their final remuneration for that period, such payment to be made within 14 days after the day on which their remuneration is fixed AND upon Messrs Templeton and Hennessy, both in their capacities as Receivers and on behalf of KPMG, an Australian partnership, by their Counsel further undertaking that they will pay interest on that difference at such rate or rates as may be determined by the Court or as may be determined by a person appointed for that purpose by the Court.

THE COURT ORDERS THAT:

1.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) and on the ground that the order is necessary to prevent prejudice to the proper administration of justice, Tab 1 to Exhibit DJT-279 to the 44th Affidavit of Damian John Templeton sworn on 14 June 2013 is to remain confidential.

2.    The amounts specified in the Schedule to this order, as the Receivers’ interim remuneration for the period 1 January 2012 to 31 March 2013 (Relevant Period), are approved for payment to the Receivers on an interim basis.

3.    The Receivers are justified in treating the costs of the liquidation of the Corporate Defendants as expenses of the receiverships.

4.    Until further order, upon the drawdown of any funds for the purposes of payment of the Receivers’ interim remuneration, costs and expenses, the Receivers are to file with the Court a Certificate in accordance with the form at Annexure 1 to these orders.

5.    Subject to further direction, a Registrar of the Court review and fix the remuneration to which the Receivers are properly entitled and the costs and expenses they properly incurred in the performance of their duties and the exercise of their powers as Court appointed receivers and managers of each of the entities and schemes to which they were appointed receivers and managers by the Appointment Order, the SY21 Appointment Order and the Additional Schemes Appointment Order for the Relevant Period.

6.    By no later than 4:00pm on 31 July 2013, the Receivers are to serve upon all investors identified by the Receivers to be investors in any of the Schemes (Investors):

(a)    a copy of these orders;

(b)    a circular:

(i)    advising the Investors of the Remuneration Application;

(ii)    informing them that by no later than 21 August 2013 (Objection Period) any Investor may file and serve a notice in writing identifying any of the Receivers’ claims for remuneration, costs and expenses to which they object, together with a short but specific statement outlining the nature and grounds of the objection and the amount (if any) they say is claimable;

(iii)    informing them that a copy of the Remuneration Application and affidavit material filed in support of the Remuneration Application are available on the secure section of the Investors’ website (www.kpmg.com.au/lettenschemes).

(c)    a copy of the Remuneration Application;

(d)    a copy of each affidavit and submissions filed in support of the Remuneration Application, together with the exhibits thereto.

7.    Service for the purposes of paragraph 6 may be effected:

(a)    In the case of paragraph 6(a) and 6(b):

(i)    by email in respect of Investors who have notified the Receivers that email is their preferred method of communication; and

(ii)    otherwise by ordinary post; and

(b)    in the case of paragraphs 6(c) and 6(d), by making copies of the documents available on the secure section of the Investors’ website (www.kpmg.com.au/lettenschemes).

8.    The Secured Lender, any other party and any Investor, who wishes to do so, shall file and serve by 21 August 2013 a notice in writing identifying any of the Receivers’ claims for remuneration, costs or expenses to which they object, together with a short but specific statement outlining the nature and grounds of the objection and the amount (if any) they say is claimable in the form of Annexure 2 to these Orders.

9.    As soon as reasonably practicable after the expiration of the Objection Period, the Registrar will advise the Receivers if the Registrar requires further information to fix the remuneration, costs and expenses for the relevant period and copies of any such further information provided to the Registrar will also be provided to the Secured Lenders and ASIC.

10.    If the Registrar requests further information to fix the remuneration, costs and expenses, the Receivers will provide such further information within 7 days of receipt of the Registrar’s request.

11.    As soon as reasonably practicable after receipt of the further information referred to in paragraph 10, the Registrar is to fix the Receivers’ remuneration, costs and expenses for the relevant period and deliver short written reasons for his or her determination.

12.    The Receivers, any other party, the Secured Lender and any Investor may apply to the Court to review the Registrar’s determination and the Court may review the Registrar’s determination and fix the remuneration, costs and expenses of the Receivers for the relevant period.

13.    Costs reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).

ANNEXURE 1

Certificate in respect of the Remuneration Application

Filed in Victoria District Registry

IN THE MATTER OF MARK RONALD LETTEN & OTHERS

No. VID 95 of 2010

To:     The Registrar

Federal Court of Australia

Victoria District Registry

305 William Street

Melbourne VIC 3000

Fax: (03) 8600 3351

NOTE: For the purpose of this Certificate:

(a)    “Receivers”, “Scheme” and “Property” have the meanings ascribed to those terms in the Orders of Justice Gordon made in this proceeding on 25 February 2010, 4 March 2010 and 30 July 2010; and

(b)    “Remuneration Application” means the application of the Receivers by interlocutory process dated 17 June 2013 for approval of their remuneration and expenses in respect of the period 1 January 2012 to 31 March 2013.

On [insert date] the amount of [insert amount] was paid to the Receivers from Scheme Property in connection with the [specify scheme] as interim remuneration (including costs and expenses).

In accordance with the Orders of Justice Gordon dated [insert date], the Receivers certify as follows:

A.    Applicable where the interim payment has been made at a time when there remains a shortfall of monies due to the Secured Lender.

□    The Receivers and the Secured Lender have agreed that the above interim payment of remuneration (including costs and expenses) is appropriate.

B.    In all cases

    The above interim payment is consistent with those orders.

Signed: …………………………    Date: ………………………..

Damian John Templeton/Philip Hennessy

ANNEXURE 2

Notice of submission in respect of the Remuneration Application

Filed in Victoria District Registry

IN THE MATTER OF MARK RONALD LETTEN & OTHERS

No. VID 95 of 2010

To:     The Registrar

Federal Court of Australia

Victoria District Registry

305 William Street

Melbourne VIC 3000

Fax: (03) 8600 3351

I, __________________________________________, wish to make objection in respect of the Remuneration Application regarding the Schemes, in which I am an investor:

(specify schemes here)

I object to the following claims for remuneration and expenses:

(specify the claims objected to here. Attach additional pages as necessary)

The details of my objection are:

[Set out in the space below the nature and grounds for each objection and the amount (if any) which you say is properly claimable. Attach additional pages as necessary]:

Signed:        ________________________________

Name:            ________________________________

Address:        ________________________________

Phone no:        ________________________________

Email address:    ________________________________

Date:            ________________________________

SCHEDULE OF REMUNERATION AND EXPENSES INCURRED BY THE RECEIVERS AND INTERIM REMUNERATION (85% OF RECEIVERS’ FEES AND 100% OF EXPENSES INCURRED) FOR THE PERIOD FROM 1 JANUARY 2012 TO 31 MARCH 2013 (INCLUSIVE)

REASONS FOR JUDGMENT

1    This is the twenty-first judgment in a series about unregistered managed investment schemes in which Mr Mark Ronald Letten (Mr Letten), the first defendant, was involved. The history of the proceedings were relevantly summarised in Australian Securities and Investments Commission v Letten (No 7) (2010) 80 ACSR 401 at [7]-[12]. I adopt the same terms and abbreviations in these reasons for judgment.

2    This judgment concerns the remuneration of the Receivers for the period from 1 January 2012 to 31 March 2013 (the Relevant Period). The Receivers seek payment of 85% of their claim for remuneration and 100% of the expenses incurred for the Relevant Period. The claim is an interim claim in two respects – first, the work is not complete and secondly, the Receivers propose that they be entitled to immediate payment of 85% of their remuneration and 100% of their expenses on the basis that if after a formal taxation of their costs by a Registrar of the Federal Court their entitlement to remuneration is less than 85% of the amount claimed (and less than 100% of the expenses claimed), the Receivers and their firm, KPMG, will repay the difference with interest at a rate to be determined by the Court. This is the third interim claim for remuneration. The first covered the period from the date of their first appointment (25 February 2010) up to and including 2 July 2010: see Australian Securities and Investments Commission v Letten (No 9) [2010] FCA 1459 (the Initial Claim). The second covered the period from 3 July 2010 to 31 December 2011: see Australian Securities and Investments Commission v Letten (No 19) [2012] FCA 375 (the Second Claim).

3    For the reasons that follow, I would grant the Receivers the orders they seek.

Procedural history

4    By paragraph 20 of the Appointment Order, paragraph 15 of the SY21 Appointment Order and paragraph 29 of the Additional Schemes Appointment Order, the Court ordered, inter alia, that:

1.    the Receivers shall be entitled to reasonable remuneration and reasonable costs and expenses properly incurred in the performance of their duties and the exercise of their powers as receivers and managers over the Property of each Scheme, as may be fixed by the Court on the application of the Receivers;

2.    the Receivers’ remuneration is to be calculated on the basis of the time reasonably spent by the receivers and managers, their partners and staff, at the rates specified in Annexure B to the Appointment Order;

3.    the Receivers’ remuneration is to be paid out of the assets of the Scheme, provided that the Receivers’ remuneration and reasonable costs and expenses must not be paid in priority to any debt the payment of which is secured by the Property of the Scheme (including by any floating charge) without the consent in writing of the relevant Secured Lender; and

4.    the above orders are not to affect the rights of any prior encumbrances of the Property of the Schemes or the Property of the defendants, including the rights of any Secured Lender.

5    On 11 November 2010, the Court directed, inter alia, that the Receivers were justified in paying the following amounts out of the proceeds of sale of each asset of the Schemes and the Corporate Defendants, in the following order of priority:

1.    priority receivership costs, as fixed by the Court, to the Receivers;

2.    any liabilities which were secured by that asset, to the relevant Secured Lender;

3.    the amount of trust creditor claims in respect of the relevant Corporate Defendant (if any) in respect of which the relevant Corporate Defendant had a right of indemnity and lien, to the relevant Corporate Defendant; and

4.    the balance (if any) into a bank account held in the name of the Receivers and designated as the “Common Fund” account (the Common Fund).

These orders will be referred to as the Pooling Orders: see Letten (No 7).

Proposed Remuneration Orders

6    There are in fact two groups of costs – “Priority Costs” and “Non-Priority Costs”. The distinction to be drawn between them was explained in Letten (No 9) at [6]-[7].

7    Under the Pooling Orders (see [5] above), the Non-Priority Costs rank first in priority in the Common Fund. The Receivers did not seek directions from the Court as to any allocation as between Priority and Non-Priority Costs.

Effect of the Proposed Remuneration Orders

8    The Remuneration Orders proposed by the Receivers (the Proposed Remuneration Orders) are substantively identical to that approved by the Court in relation to the Initial Claim and the Second Claim, namely:

1.    to set up a regime to enable a Registrar to fix the appropriate amount of the Receiver’s total costs for the Relevant Period ; and

2.    in the interim, to allow the Receivers to obtain payment of 85% of their remuneration and 100% of their expenses (in respect of the Relevant Period) from the available assets of applicable Schemes.

9    As the Receivers submitted, the intended effect of the Proposed Remuneration Orders is “to replicate the cost effective, practical regime for dealing with the Receivers’ remuneration, costs and expenses” that was put in place for previous applications: see Letten (No 9) and Letten (No 19).

10    As a result of the Pooling Orders and the Proposed Remuneration Orders:

1.    The Receivers would recover on an interim basis 85% of their priority fees and 100% of their expenses referable to any particular Scheme out of the proceeds of sale of that particular Scheme’s property (i.e. from proceeds received at completion or from non-refundable deposits paid by purchasers) or surplus cashflow generated by that Scheme’s property after the payment of all costs necessary to preserve the property (subject to the Secured Lender’s consent) or from the Common Fund.

2.    In the interim, a taxation of their costs before a Registrar of the Federal Court, and subsequent determination of objections by the Court, would proceed on the basis that:

2.1    if any amounts recovered on an interim basis by the Receivers (i.e. 85% of the fees or 100% of the expenses) were greater than the amount determined by the Registrar and any subsequent determination by the Court, the Receivers would refund the relevant trustee company, Secured Creditor or the Common Fund (as the case may be) together with interest at a rate to be determined by the Court; and

2.2    if the Court determined that the Receivers were entitled to recover some or all of the additional 15%, then they could do so only after the Court had considered the full claim by the Receivers.

Analysis

11    Two questions again arise – (1) should the Receivers be entitled to immediate payment of their remuneration, costs and expenses on an interim basis and (2) if so, is 85% of the remuneration and 100% of the expenses the appropriate percentage and what other safeguards should be put in place.

Entitled to payment on an interim basis?

12    There is little doubt that the Receivers and their legal advisors have undertaken a significant amount of work since 31 December 2011 without payment. The issues that have arisen and continue to arise are complex and time consuming and, on some occasions, subject to time pressures. The task still is not complete and is unlikely to be so in the near future. In my view, it is appropriate that the Receivers be entitled to immediate payment of their remuneration, costs and expenses for the Relevant Period on an interim basis. The Court’s power to make the Proposed Remuneration Orders was addressed in Letten (No 9) and is not in issue: see Letten (No 9) at [13].

Justifications and Safeguards

13    Any order authorising the Receivers to be entitled to immediate payment of their remuneration, costs and expenses on an interim basis must be subject to certain safeguards. In the present case, the appropriate safeguards are:

1.    each time an interim drawing is made, the Receivers will file and serve a certificate confirming that the drawing is consistent with the orders allowing for the interim payment. The text of the certificate will require the Receivers to identify the Scheme and the amount paid to the Receivers from Scheme Property in connection with the Scheme as interim remuneration (including costs and expenses);

2.    a Registrar of the Court must review and fix the remuneration to which the Receivers are properly entitled and the costs and expenses they properly incurred in the performance of their duties and the exercise of their powers as Court appointed receivers and managers of each of the entities and schemes to which they were appointed receivers and managers by the Appointment Order, the SY21 Appointment Order and the Additional Schemes Appointment Order for the Relevant Period;

3.    prior to any review of the remuneration claim by a Registrar of the Court, the Secured Lender, any other party and any Investor may file and serve a notice in writing identifying any of the Receivers’ claims for remuneration, costs or expenses to which they object, together with a short but specific statement outlining the nature and grounds of the objection and the amount (if any) they say is claimable in a specified form;

4.    the Receivers, any other party, the Secured Lender and any Investor may apply to the Court to review the Registrar’s determination and the Court may review the Registrar’s determination and fix the remuneration, costs and expenses of the Receivers for the Relevant Period;

5.    the Receivers and their firm, KPMG, must provide an undertaking to repay any overpayments (including interest) if the amount determined by the Registrar (or the Court on reviewing the Registrar’s determination) is ultimately less than 85% of the amount claimed and paid on an interim basis. If the overpayment is in respect of property where there exists a Secured Lender which is still owed secured monies, then the repayment would go to that Secured Lender. In all other cases, the overpayment will be made back to the bank account from which the interim payment was made, to be subsequently dealt with in accordance with the Pooling Orders.

In my view, those safeguards (being the same safeguards adopted in relation to the Initial Claim and the Second Claim) adequately protect the interests of the other stakeholders.

Percentage?

14    The next issue was the percentage of the remuneration claim that the Receivers should be entitled to receive on an interim basis. The Receivers submitted, and I accept, that 85% is appropriate. The figure is arbitrary.

15    However, a number of facts and matters should be noted. First, the rates to be charged by the Receivers and their staff were agreed on their appointment. Whether the work ultimately carried out was appropriate to be charged by the Receivers is a matter for the Registrar including, but not limited to, the charge out rate and quantum.

16    Second, the Receivers informed the Court that they and their legal advisers had discounted the fees claimed by 10% (compared to the rates approved by the Court). That was the approach adopted in relation to the Initial Claim and the Second Claim. Again, whether that ultimately is a relevant consideration is a matter for the Registrar (and any subsequent Court review of the Registrar’s determination).

17    Third, the interim payment being limited to 85% of the fees claimed provides a sufficient buffer to ensure that the Receivers are not overpaid: Letten (No 9) at [15]-[17] and the authorities cited. That buffer must be considered in light of the following additional facts and matters:

1.    the review of the Initial Claim resulted in a 5% reduction of the Receivers’ total claim for remuneration, costs and expenses: see decision of Deputy Registrar Pringle of 12 September 2011. The review of the Second Claim resulted in a 2.3% reduction of the Receivers’ total claim for remuneration, costs and expenses. In other words, those facts would tend to suggest that the buffer was sufficient;

2.    the current application is limited to the Relevant Period and since then a substantial amount of further work has been undertaken by the Receivers;

3.    in preparing this application the subject of these reasons for decision, the Receivers have again taken into account the matters raised by Deputy Registrar Pringle during the review of the Initial Claim. Again, whether that is so is a matter for the Registrar (and any subsequent Court review of the Registrar’s determination).

18    Fourth, the interim payment of 100% of the expenses claimed is reasonable taking into account that the Receivers are undertaking to repay any amounts determined to be overpayments and the result of the Registrar review of the expenses in the Initial Claim and the Second Claim.

19    Finally, it is necessary to say something about the costs of the liquidation of the various Corporate Defendants. Again, the Receivers sought an order that those costs be treated as an expense of the Receivership. The basis for that submission was that the liquidation of the Corporate Defendants was a necessary step in complying with the Appointment Orders and the Additional Schemes Appointment Orders which required the Receivers to conduct an orderly winding up of the Schemes. Put another way, the Receivers submitted that the liquidation of the Corporate Defendants that operated the Schemes was a part (a necessary part) of the winding up of the Schemes. Indeed, as the Receivers submitted, it was in fact the plaintiff, the Australian Securities and Investments Commission, that applied to wind up the Corporate Defendants as part of the overall winding up of the Schemes. The costs are not significant – $14,516.10. In my view, for the reasons stated the costs of the liquidation of the various Corporate Defendants should be treated as an expense of the Receivership.

Conclusion

20    It is for those reasons that I will grant the Receivers the Orders that they seek in relation to interim payment of their remuneration, costs and expenses for the Relevant Period.

Associate:

Dated:    30 July 2013

SCHEDULE OF PARTIES

LGH HOLDINGS LIMITED (ACN 007 191 943)

Second Defendant

211 WELLINGTON ROAD PTY LTD (ACN 092 663 860)

Third Defendant

BLUEMIST HOLDINGS PTY LTD (ACN 097 306 922)

Fourth Defendant

DELLWOOD HOLDINGS PTY LTD (ACN 098 505 803)

Fifth Defendant

ENMORE ENTERPRISES PTY LTD (ACN 082 158 487)

Sixth Defendant

FIRBANK ARCH PTY LTD (ACN 059 464 381)

Seventh Defendant

GLENLINE PTY LTD (ACN 098 532 364)

Eighth Defendant

GERLING HOLDINGS PTY LTD (ACN 091 726 457)

Ninth Defendant

LGH ADMINISTRATION PTY LTD (ACN 007 165 069)

Tenth Defendant

LGH FINANCE PTY LTD (ACN 078 859 248)

Eleventh Defendant

LOW HEAD VILLAGE PTY LTD (ACN 091 731 958)

Twelfth Defendant

NICHOLSON STREET PTY LTD (ACN 069 104 089)

Thirteenth Defendant

HOLLOWAY CREST PTY LTD (ACN 091 731 967)

Fourteenth Defendant

ROSEBERY ENTERPRISES PTY LTD (ACN 091 826 229)

Fifteenth Defendant

SIMMS INVESTMENTS PTY LTD (ACN 093 504 511)

Sixteenth Defendant

SY21 RETAIL PTY LTD (ACN 107 874 564)

Seventeenth Defendant

THE GLEN CENTRE HAWTHORN PTY LTD (ACN 089 906 543)

Eighteenth Defendant

CASTELLO HOLDINGS PTY LTD (ACN 088 204 175)

Nineteenth Defendant

TWINVIEW NOMINEES PTY LTD (ACN 097 307 278)

Twentieth Defendant

YARRA VALLEY GOLF PTY LTD (ACN 066 632 479)

Twenty-First Defendant

ADINA RISE PTY LTD (ACN 083 181 122)

Twenty-Second Defendant

ALBRIGHT INVESTMENTS PTY LTD (ACN 088 204 166)

Twenty-Third Defendant

ASHFIELD RISE PTY LTD (ACN 093 504 806)

Twenty-Fourth Defendant

BRADFIELD CORPORATION PTY LTD (ACN 088 204 371)

Twenty-Fifth Defendant

COPELAND ENTERPRISES PTY LTD (ACN 093 504 824)

Twenty-Sixth Defendant

DEVLIN WAY PTY LTD (ACN 088 264 813)

Twenty-Seventh Defendant

FIRST HAZELWOOD PTY LTD (ACN 093 505 303)

Twenty-Eighth Defendant

GLENBELLE PTY LTD (ACN 097 306 646)

Twenty-Ninth Defendant

GLENVALE WAY PTY LTD (ACN 088 287 021)

Thirtieth Defendant

GREENVIEW LANE PTY LTD (ACN 093 505 312)

Thirty-First Defendant

HALLMARK CORPORATION PTY LTD (ACN 093 505 312)

Thirty-Second Defendant

MOORLEIGH HOLDINGS PTY LTD (ACN 088 287 058)

Thirty-Third Defendant

NORTON RIDGE PTY LTD (ACN 078 821 066)

Thirty-Fourth Defendant

RALEIGH GLEN PTY LTD (ACN 088 204 380)

Thirty-Fifth Defendant

REDCREST HOLDINGS PTY LTD (ACN 100 836 486)

Thirty-Sixth Defendant

SURI CORPORATION PTY LTD (ACN 093 505 321)

Thirty-Seventh Defendant

SUTTON RISE PTY LTD (ACN 088 204 399)

Thirty-Eighth Defendant

THE VIRTUAL MLMER PTY LTD (ACN 065 374 665)

Thirty-Ninth Defendant

TIVENDALE PTY LTD (ACN 093 505 349)

Fortieth Defendant

TULLOCH DOWNES PTY LTD (ACN 078 895 048)

Forty-First Defendant

MAINKING PTY LTD (ACN 100 790 485)

Forty-Second Defendant

TOPGLEN PTY LTD (ACN 096 857 564)

Forty-Third Defendant

ALLBLUE PTY LTD (ACN 100 836 388)

Forty-Fourth Defendant

ARANBAY PTY LTD (ACN 098 532 319)

Forty-Fifth Defendant

MELVILLE CORPORATION PTY LTD (ACN 091 911 045)

Forty-Sixth Defendant

TILLEY LANE PTY LTD (ACN 086 136 361)

Forty-Seventh Defendant

HPSC PTY LTD (ACN 059 930 139

Forty-Eighth Defendant

JENSDALE PTY LTD (ACN 098 367 974)

Forty-Ninth Defendant

OAKDALE RISE PTY LTD (ACN 091 598 908)

Fiftieth Defendant

MAYWOOD INVESTMENTS PTY LTD (ACN 091 599 218)

Fifty-First Defendant

ACETRAIN PTY LTD (ACN 100 820 282)

Fifty-Second Defendant

SAGE BAY PTY LTD (ACN 097 306 628)

Fifty-Third Defendant

TOBAGO HOLDINGS PTY LTD (ACN 093 504 520)

Fifty-Fourth Defendant