FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission, in the matter of Oceanic Asset Management Pty Ltd v Oceanic Asset Management Pty Ltd [2017] FCA 426

ORDERS

THE COURT ORDERS THAT:

1.    The remuneration, costs and disbursements of Kimberley Stuart Wallman as trustee of the deceased estate of Mr David Jones in the amount of $109,095.46 (inclusive of GST) for the period 24 August 2015 up to and including 17 January 2017 incurred in the performance of his duties and the exercise of his powers as trustee of that deceased estate be approved by the Court.

2.    The remuneration, costs and disbursements of Kimberley Stuart Wallman as trustee of the deceased estate of Mrs Jeanette Jones in the amount of $33,945.76 (inclusive of GST) for the period 12 November 2015 up to and including 17 January 2017 incurred in the performance of his duties and the exercise of his powers as trustee of that deceased estate be approved by the Court.

3.    The trustee be indemnified from, and is entitled to an equitable lien over, the combined assets of the deceased estates of David Jones and Jeanette Jones for the amount of the remuneration, costs and expenses approved by the Court pursuant to orders 1 and 2 above.

4.    The trustee’s costs of this application, dated 24 March 2017, be paid from the combined assets of the deceased estates of David Jones and Jeanette Jones.

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

REASONS FOR JUDGMENT

BARKER J:

1    On 24 August 2015 and 12 November 2015 I made orders appointing Mr Kimberley Stuart Wallman as trustee of the deceased estates of Mr David Jones and Mrs Jeanette Jones.

2    On 12 December 2016, I made the following orders by consent:

(1)    Kimberley Stuart Wallman (Trustee) as trustee of the deceased estates of David Jones and Jeanette Jones specified in the orders made on 24 August 2015 and 12 November 2015 (Deceased Estates) be entitled to receive his reasonable remuneration, costs and disbursements properly incurred in the performance of his duties and the exercise of his powers as Trustee of the Deceased Estates and as approved and ordered by the Court.

(2)    The Trustee’s remuneration, costs and disbursements be paid from the combined assets of the Deceased Estates.

(3)    At least 21 days before filing an interlocutory process seeking an order for approval of the Trustee’s remuneration, costs and disbursements pursuant to order 1, the Trustee must serve a notice in accordance with Form 16 of the Trustee’s intention to apply for the orders, and a copy of any affidavit on which the Trustee intends to rely, on the following persons:

(a)    the plaintiff;

(b)    the creditors identified in paras 15 – 17 of the affidavit of Kimberley Stuart Wallman sworn 28 November 2016 (Wallman affidavit); and

(c)    the beneficiaries of the Deceased Estates identified in para 19 of the Wallman affidavit.

(4)    Within 21 days after the last service of the documents mentioned in order 3, any person mentioned in order 3(a), (b) or (c), may give to the Trustee a notice of objection to the remuneration claimed, stating the grounds of objection.

(5)    If the Trustee does not receive a notice of objection within the period mentioned in order 4:

(a)    the Trustee may file an affidavit, made after the end of that period, in support of the interlocutory process seeking the order stating:

(i)    the date, or dates, when the notice and affidavit required to be served under order 4 were served; and

(ii)    that the Trustee has not received any notice of objection to the remuneration, costs and disbursements claimed within the period mentioned in order 4;

(b)    the Trustee may endorse the interlocutory process with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the Trustee; and

(c)    the application may be so dealt with.

(6)    If the Trustee receives a notice of objection within the period mentioned in order 4, the Trustee must serve a copy of the interlocutory process seeking the order on each person who has given a notice of objection.

(7)    At least one affidavit on which the Trustee intends to rely in support of the interlocutory process to be filed pursuant to order 3 must:

(a)    include evidence of the matters mentioned in s 425(8) of the Corporations Act 2001 (Cth), as if references in that subsection to “receiver” were references to the Trustee;

(b)    state the nature of the work performed or likely to be performed by the Trustee;

(c)    state the amount of the remuneration claimed;

(d)    include a summary of the receipts taken and payments made by the Trustee;

(e)    state the particulars of any objection of which the Trustee has received notice; and

(f)    if the Trusteeship is continuing – give details of any matters delaying the completion of the Trusteeship.

(8)    The Trustee’s costs of this application be costs of the Trustee incurred in the performance of his duties as Trustee of the Deceased Estates.

3    The trustee now applies for orders approving his remuneration, costs and disbursements in the amount of $109,095.46 (inclusive of GST) in respect of the deceased estate of Mr Jones and $33,945.76 (inclusive of GST) in respect of the deceased estate of Mr Jones.

4    The purpose of the trustee’s appointment was to preserve the personal assets of Mr and Mrs Jones and prevent unauthorised dissipation of those assets pending the outcome of an investigation by the Australian Securities and Investments Commission (ASIC) and the contraventions by Mr and Mrs Jones of, among other things, the Corporations Act and the Criminal Code Act Compilation Act 1913 (WA). His appointment will continue until that investigation is complete.

5    The trustee made an affidavit in support of his application on 20 February 2017. The parties to this proceeding agree that the interlocutory application for the approval of his costs should be determined by the Court on the papers.

6    In his affidavit, the trustee has set out a summary of the tasks completed by him, professional staff and other staff of HLB Mann Judd (Insolvency WA), who are under his personal supervision in the trusteeship of the deceased estates for the period 24 August 2015 to 17 January 2017.

7    That summary of tasks identified the estimated costs incurred in respect of four particular “task areas”.

8    A bill of costs for that period in respect of each of the deceased estates has also been provided to the Court.

9    In the bill of costs, the trustee identified the person or persons who have performed each particular task, the tasks and dates on which time was spent on the task, as well as the amount spent on those tasks, and the applicable rate for each of the persons performing the tasks, and has provided reasonably detailed diary notes and timesheets maintained, and disbursements necessarily expended.

10    In my view, as the trustee submits, the amounts claimed for work carried out and disbursements expended are reasonable, having regard to the purpose of his appointment as trustee, and have been reasonably incurred. All tax invoices, receipts and other records in respect of disbursements have been recorded in a form suitable for vouching.

11    By her affidavit, made 24 March 2017, Ms Kelsey Lauren Wellington informed the Court of notice concerning the steps taken to comply with the orders made 12 December 2016. Those steps have been completed.

12    Tottle Partners, the solicitors acting for the trustee, have not received any notice of objection from any person to the remuneration, costs and disbursements claimed by the trustee in the 28 day period after the last service of the Form 16 notices that have been sent out, the consent order previously made and the trustee’s affidavit.

13    In all the circumstances, I consider it appropriate to make the following orders:

(1)    The remuneration, costs and disbursements of Kimberley Stuart Wallman as trustee of the deceased estate of Mr David Jones in the amount of $109,095.46 (inclusive of GST) for the period 24 August 2015 up to and including 17 January 2017 incurred in the performance of his duties and the exercise of his powers as trustee of that deceased estate be approved by the Court.

(2)    The remuneration, costs and disbursements of Kimberley Stuart Wallman as trustee of the deceased estate of Mrs Jeanette Jones in the amount of $33,945.76 (inclusive of GST) for the period 12 November 2015 up to and including 17 January 2017 incurred in the performance of his duties and the exercise of his powers as trustee of that deceased estate be approved by the Court.

(3)    The trustee be indemnified from, and is entitled to an equitable lien over, the combined assets of the deceased estates of David Jones and Jeanette Jones for the amount of the remuneration, costs and expenses approved by the Court pursuant to orders 1 and 2 above.

(4)    The trustee’s costs of this application, dated 24 March 2017, be paid from the combined assets of the deceased estates of David Jones and Jeanette Jones.

Associate:

Dated:    26 April 2017

SCHEDULE OF PARTIES