FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Marco (No 4) [2020] FCA 881

ORDERS

THE COURT ORDERS THAT:

1.    Subject to orders that follow, the orders of 1 November 2018 continue.

2.    Order 4 of the orders made on 1 November 2018 be varied to include the following additional subparagraphs following sub-paragraph (e):

(f)    the Individual Receivers from paying reasonable expenses and disbursements incurred in connection with their appointment or the exercise of any of the powers identified in order 3 of the orders made by the Court on 27 May 2020 from the First Defendant’s assets (defined as the ‘Individual Property’ in the orders of 27 May 2020 and including Westpac bank account BSB 037165 account number 857175 and/or BSB 036080 account number 540078), including, but not limited to:

(i)    insurance expenses of the First Defendant;

(ii)    collection and holding expenses in respect of the First Defendant’s assets;

(iii)    mortgage repayments;

(iv)    tax related liabilities of the First Defendant;

(v)    legal fees of the First Defendant in addition to the legal fees referred to in order 4(c) of the orders of 1 November 2018; and

(vi)    legal costs incurred by the Receivers limited to matters relating to the First Defendant’s Assets.

(g)    the Corporate Receivers from paying reasonable expenses and disbursements incurred in connection with their appointment or the exercise of any of the powers identified in order 8 of the orders made by the Court on 27 May 2020 from the Second and Third Defendants’ assets (defined as ‘Corporate Property’ in the orders of 27 May 2020 and including Westpac bank account BSB 037165 account number 857175 and/or BSB 036080 account number 540078), including, but not limited to:

(i)    insurance expenses of the Second and Third Defendants;

(ii)    collection and holding expenses in respect of the Second and Third defendants’ assets;

(iii)    mortgage repayments of the Second and Third Defendants;

(iv)    tax related liabilities of the Second and Third Defendants;

(v)    legal fees of the Second and Third Defendant in addition to the legal fees referred to in order 4(c) of the orders of 1 November 2018; and

(vi)    legal costs incurred by the receivers limited to matters relating to the Second and Third Defendants’ assets.

3.    All costs associated with the provision of the Reports in accordance with orders 5, 6, 10 and 11 of 27 May 2020 be paid by the Plaintiff.

4.    Until further order of the Court, the Individual Receivers and Corporate Receivers be indemnified from the Defendants’ assets against any claim, liability, proceeding, cost, charge or expense in respect of any liability arising under s 419A of the Corporations Act 2001 (Cth).

5.    Any other indemnity required by the Individual Receivers and Corporate Receivers arising from the actions they carry out under the interim receiverships be given by the Plaintiff.

6.    Notwithstanding order 3 of the orders made on 1 November 2018 the Individual Receivers and Corporate Receivers shall be entitled to determine whether or not to pay and to pay from Westpac bank account BSB 037165 account number 857175:

(a)    the costs reasonably incurred in the proceedings Markopoulus & Ors v Marco number CIV 1431 of 2019 and appeal proceedings Marco v Markopoulus & Ors CACV 39 of 2020 in the Supreme Court of Western Australia in the sum of up to $75,000 inclusive of GST with liberty to increase that amount (if exhausted or in anticipation of it being exhausted) and

(b)    the costs reasonably incurred in the proceedings Baxter Global Investments Pty Ltd (ACN 159 246 670) & Batchelar Group Investments Pty Ltd (ACN 613 791 941) as trustee for Batchelar Group Super Fund ABN 44 165 859 985 v Chris Marco & Ors case number 53867 of 2020 in the Supreme Court of New South Wales in the sum of up to $25,000 including GST with liberty to increase that amount (if exhausted or in anticipation of it being exhausted).

7.    There be liberty to any party and to the Individual Receivers and Corporate Receivers to apply on 48 hours’ notice and specifically liberty to the Plaintiff to apply for a variation of the orders pertaining to the source of the payment of the fees and expenses of the Individual Receivers and Corporate Receivers and any indemnity to be given to the Individual Receivers and Corporate Receivers.

8.    Costs of this application be reserved.

9.    Pursuant to s 17(2), s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), and rules 1.32 and 1.36 of the Federal Court Rules 2011, these orders and reasons for judgment in support of these orders are made and published from chambers.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

1    On 27 May 2020 orders were made in Australian Securities and Investments Commission v Marco (No 3) [2020] FCA 719 appointing interim receivers over the assets of the defendants with the power to do ‘all things necessary and convenient to be done for or in connection with, or as incidental to, the identification, preservation and securing’ of all of the defendants’ property for the benefit of potential creditors.

2    As is apparent from Marco (No 3) and earlier judgments, freezing orders pertaining to the defendants’ assets were made on 1 November 2018. Although the freezing orders have been varied a number of times since then, they are yet to be discharged.

3    Despite commendable consultation, the parties have been unable to reach agreement as to how the freezing orders should be adjusted to accommodate the orders made appointing and empowering the interim receivers’ actions.

THE ISSUES

4    On 31 March 2020, prior to the delivery of judgment in Marco (No 3), the defendants filed an interlocutory application seeking a variation to the original freezing orders to allow substantial payments in relation to two legal proceedings being Markopoulus & Ors v Marco number CIV 1431 of 2019 and appeal proceedings Marco v Markopoulus & Ors CACV 39 of 2020 in the Supreme Court of Western Australia (the Markopolous Proceedings) and Baxter Global Investments Pty Ltd (ACN 159 246 670) & Batchelar Group Investments Pty Ltd (ACN 613 791 941) as trustee for Batchelar Group Super Fund ABN 44 165 859 985 v Chris Marco & Ors case number 53867 of 2020 in the Supreme Court of New South Wales (the Baxter Proceedings).

5    The plaintiff (ASIC) contends that the interim receivers have the power to assess whether such expenditure ought be incurred. The defendants contend that as these particular expenses were incurred before the appointment of the receivers, they should just be approved by the Court. They therefore seek orders permitting each of these payments to be made. ASIC also contends, for reasons outlined at some length, that the costs of those proceedings have not been reasonably incurred, for various reasons including the fact that the plaintiffs in those proceedings were always bound to succeed.

6    Both parties also seek amendments to order 4 of the original freezing orders so as to clarify how the interim receivers’ powers operate with respect to the freezing orders and the question of payment of ongoing expenses and disbursements.

7    ASIC’s proposed amendments to order 4 would permit the costs or expenses (or both) incurred in the provision of the Reports (as required by orders 5, 6, 10 and 11 of the orders made in Marco (No 3)) to be prepared by the interim receivers to be paid out of the defendants’ assets. For the reasons set out in Marco (No 3) (at [140]-[143]), the defendants oppose any such order and contend that ASIC should bear the receivers’ costs of preparing the Reports.

8    ASIC now also seeks an order that the receivers be provided with an indemnity from the defendants’ assets. They say that this is particularly necessary in light of the ongoing Markopolous and Baxter Proceedings and the various deficiencies in record keeping addressed in Marco (No 3) (see [162]). ASIC explains that, despite the tentative view I expressed in Marco (No 3), it ‘is not in a position’ to provide any indemnity at all to the interim receivers noting that rather than being a private creditor, ASIC has sought the appointment of receivers in the discharge of its statutory function and for the purpose of protecting the interests of investors. It says that it has no influence or control over the receivers and should therefore not be required to indemnify them for any liabilities that arise under s 419 or s 419A of the Corporations Act 2001 (Cth).

9    The defendants rely primarily on the reasoning (at [184]) in Marco (No 3) where I noted that:

… one of the significant factors in my reasoning in reaching this conclusion is the fact that the costs of the receivers would be met by ASIC, rather than the defendants and I anticipate any indemnity sought by the receivers would be given by ASIC. Should ASIC subsequently apply for the payment of such costs to be refunded, it should be borne in mind that, at least as far as my assessment of the matter is concerned at this stage, there would have been doubt as to the desirability of the appointment of an interim receiver if the receiver’s costs were to be, in effect, borne by the investors through reduction in the value of the assets of the defendants.

10    The outstanding issues left following considerable debate can be defined broadly as follows:

    Should ASIC provide the receivers with an indemnity of any nature?

    Who should provide for the fees of, and expenses incurred by, the receivers in connection with their appointment?

    Who should provide for fees of, and expenses incurred by, the receivers in providing the Reports?

THE INDEMNITY AND INTERIM RECEIVERS’ EXPENSES

11    Central to my views on each of these issues and the appointment of the interim receivers in Marco (No 3) was the discussion by French J in Australian Securities and Investments Commission v Carey (No 5) (2006) 58 ACSR 6, where his Honour said (at [6]-[7] and [18]-[24]):

6    I am not prepared, at this point in the proceedings, absent agreement, to make orders that the receivers’ remuneration be paid out of the assets of the defendants. In so concluding I have regard to the necessarily provisional basis upon which the appointments were made. While serious questions were raised, in support of the original application by ASIC, about the conduct of various of the individuals who are defendants in these proceedings and about the companies which they controlled, their respective liabilities to third parties have not been ascertained. The purpose for which the appointment of the receivers was made was to protect the assets of the various defendants against their possible liability to other parties. The appointment is made in the context of an ongoing investigation by ASIC. The receivers’ evidence is that there are only limited funds available from the defendants to meet their remuneration and the affairs of the corporations are so closely intertwined that it is difficult to separate out work in relation to one of them from work in relation to another.

7    In my opinion the receivers’ remuneration should be met by ASIC for the time being. I am also concerned about the impact that providing for the remuneration of the receivers out of the assets of the defendants may have upon the no doubt already parlous position of creditors of each of the defendants. I will therefore not make the orders sought by ASIC but give it liberty to apply at a later time, if circumstances change, for an order that it be indemnified out of the assets of the defendants for the costs of the receivers. In so saying, I acknowledge that two of the individual defendants, Messrs Beck and Dixon, have agreed with ASIC that the costs of the receivers appointed in respect of their respective property be paid out of that property. They have evidently so agreed upon the basis that neither of them is required to pay any part of the costs of the receivers appointed in respect of any other defendant. I am prepared to make those orders by consent.

…

18    The provisional character of the judgments upon which the orders for the appointment of the receivers were based informs consideration of the question whether the receivers’ costs of discharging their functions under those orders should be borne by the defendants. It is not the object of the orders made under s 1323 to punish the defendants. Their object is to preserve their assets and thereby protect the interests of persons to whom they may have a liability. A secondary object is to ascertain the extent of the assets. This understanding of the purpose of such orders is well established in case law relating to s 1323 and its predecessors. In Corporate Affairs Commission v Smithson (1984) 3 NSWLR 547, Waddell J said of the like provisions of s 573 of the Companies (New South Wales) Code (at 553):

‘… the purpose of appointing a receiver is to provide security for the moneys which the relevant person is, or may become, liable to pay.’

See also Corporate Affairs Commission v Transphere (1988) 15 NSWLR 596 at 611; Corporate Affairs Commission v ASC Timber Pty Ltd (1992) 10 ACSR 525 at 531.

19    The Corporations Act does not expressly authorise the Court to make an order that the persons or companies who are the subject of the orders appointing receivers to their property pay the costs of those receivers in discharging their function. The Court may confer upon the receivers ‘such powers as the Court orders’. Such powers necessarily relate to the ways in which the receivers can deal with a relevant person’s property. The imposition of a costs liability by the Court is not readily accommodated by words authorising it to confer powers on the receivers. Absent any express power in the Corporations Act the relevant provision can be found in s 23 of the Federal Court Act or in the implied incidental power – Jackson v Sterling Industries Ltd (1987) 162 CLR 612.

20    Although, in my opinion, the existence of a power to impose a liability to pay receivers’ remuneration out of the defendants’ assets can be found in s 23 as an incident of the powers conferred on the Court by s 1323 of the Corporations Act, it is not lightly to be exercised.

21    The point was well made by Waddell J in Corporate Affairs Commission v Smithson in which the appointment of receivers under s 573 of the Corporations (New South Wales) Code was considered. The section was, in the relevant parts, similar to s 1323. Waddell J pointed to the ‘severe effects’ that the appointment of a receiver might have upon a defendant noting that the court was precluded from requiring the Commission to give an undertaking as to damages as a condition of appointing a receiver. Unjustified and irrecoverable damage could be suffered where the relevant person was subject to the appointment of receivers as security for claims which might not be made out. Waddell J further said (at 556):

‘If a receiver is appointed on terms which permit him to take his remuneration out of the assets received by him, the unjustified damage caused to the relevant person would be so much greater. It should not be thought that in every case the property of a relevant person may be taken over by a receiver and his financial affairs investigated in order to provide security for claims against him, which may or may not succeed, on the basis that in any event the relevant person will have to pay the receiver’s remuneration. It may well be that in a particular case, in order to avoid such a consequence, no order should be made permitting the receiver to take his remuneration out of the assets received, thus leaving it to the Commissioner to be responsible for such remuneration pending a determination of the liability of the relevant person.’

In Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194, Hill J cited the passage from the judgment of Waddell J including that quoted above, and said (at 204):

‘I am in complete agreement with what is said by Waddell J.’

22    In Australian Securities Commission v Berona Investments Pty Ltd (1995) 18 ACSR 772, Cooper J held that the conduct of the respondents and their controllers had resulted in the appointment of the receivers and that there was therefore no need to depart from ‘the ordinary rule that the respondents be liable for the costs of the receiver appointed by the Court’. In so concluding, Cooper J cited a judgment of McPherson J in Rosanove v O’Rourke (1987) 1 Qd R 275. The question in that case was whether receivers appointed in the equitable jurisdiction of the Supreme Court of Queensland, to a partnership in dispute, should be able to recover against the partners personally for their remuneration where partnership assets were not sufficient. McPherson J answered the question in the affirmative but was reversed in the Full Court in Rosanove v O’Rourke (1988) 1 Qd R 171. It was not in dispute that the receivers could recover their remuneration out of the assets of the partnership. Connolly J said (at 174):

‘Trustees and receivers are, generally speaking, in a similar position in at least two respects. First, both are permanently liable on their contracts and second, both have a right of indemnity out of the property or estate.’

That similarity did not extend to the trustee’s right to recover from a beneficiary personally the amount expended by them (174). In my opinion the position of a receiver appointed in the exercise of equitable jurisdiction differs from that of a receiver appointed in the exercise of the statutory power conferred by s 1323. There is no entitlement, that goes with the appointment, to recover remuneration from the assets of the relevant person. The appointment under s 1323 when made on the application of ASIC and based on an ongoing investigation, aids the public regulatory and protective functions conferred upon ASIC by the Corporations Act and by the Australian Securities and Investments Commission Act 2001 (Cth). That is a foundation for such an appointment which differs from that which underpins the private equitable remedy.

23    In Australian Securities Commission v Cooke (1996) 22 ACSR 580, Nicholson J made an order for receiver’s costs under s 1323 to recover remuneration out of the estate of the relevant person. There were, however, no reasons given to explain that order and it does not appear that it was the subject of any argument before his Honour.

24    I do not consider at this stage that, absent agreement, I should order that the receivers recover the costs and remuneration out of the assets of the defendants. While there are serious concerns about the conduct of the defendants, these are based on provisional judgments about the facts. No liability has been ascertained. I am prepared to make an order in respect of the third and fourth defendants because they have consented to that course no doubt on the basis that they are insulated from the risk of having to contribute to the costs of the receiverships over other defendants. ASIC will have liberty to apply again for the orders it seeks as circumstances change. It may also seek an order at or before the end of the receivership that it be indemnified out of the assets of the defendants (other than the third and fourth defendants) for any payments made by it to the receivers in relation to the discharge of their functions.

12    As set out in Marco (No 3) (at [162]), the appointment of receivers was ‘desirable’ (the statutory term) because:

    there is a potentially $200 million shortfall;

    there are no material returns to date;

    there has been incomplete record keeping giving rise to an uncertainty as to the extent of assets available to satisfy investor entitlements; and

    there has been an unsatisfactory use of investor funds in related party transactions.

13    The observations in Carey (No 5) are relevant to all four issues above, in particular that:

    the receivers were appointed on an interim basis for the purpose only of identifying, preserving and securing assets while ASIC’s investigations continue;

    s 1323 (and by parity of reasons s 1101B(5)) of the Act are not intended to punish the defendants (at [18]);

    the position of a receiver appointed under the Act differs from an appointment under the equitable jurisdiction. The appointment does not give rise to an entitlement to remuneration from the assets, it serves a public regulatory and protection function. (at [22]); and

    ‘… While there are serious concerns about the conduct of the defendants, these are based on provisional judgments about the facts. No liability has been ascertained. …’ (at [24]).

SHOULD ASIC PROVIDE THE INTERIM RECEIVERS WITH ANY INDEMNITY?

14    The orders made in Marco (No 3) accorded with the decision in Carey (No 5) in that the question of the receivers’ indemnity and costs was deferred with leave granted for ASIC to apply at a later time (Carey (No 5) at [60]). I indicated in Marco (No 3) (at [184]) that any indemnity should be provided by ASIC having regard to the need to mitigate the depletion of the defendants’ assets by the appointment of interim receivers.

15    There are few authorities dealing directly with the question of any receivers’ indemnity (i.e. by equitable or statutory appointment) separately from the question of their remuneration and/or costs. For obvious practical reasons of potential exposure to receivers, the considerations are similar. From the cases discussed below, the conventional position in relation to receivers appointed in the equitable jurisdiction, is undoubtedly that they are entitled to have their remuneration and an indemnity borne by the defendants’ assets.

16    However there is clear divergence from this position in the case of interim receivers appointed by a corporate regulator, culminating in French J’s comments in Carey (No 5) (at [22]) distinguishing appointments under s 1323 of the Act from appointments under the equitable jurisdiction.

17    The interim receivers and ASIC rely on the following passage from Boehm v Goodall [1911] 1 Ch 155 per Warrington J (at 161):

Such a receiver and manager is not the agent of the parties, he is not a trustee for them, and they cannot control him. He may, as far as they are concerned, incur expenses or liabilities without their having a say in the matter. I think it is of the utmost importance that receivers and managers in this position should know that they must look for their indemnity to the assets which are under the control of the Court. The Court itself cannot indemnify receivers, but it can, and will, do so out of the assets, so far as they extend, for expenses properly incurred; but it cannot go further. It would be an extreme hardship in most cases to parties to an action if they were to be held personally liable for expenses incurred by receivers and managers over which they have no control.

18    Boehm v Goodall concerned the dissolution of a partnership in which a receiver was appointed by consent. The receiver made payments which the assets of the partnership were insufficient to satisfy in full and so sought an indemnity from the partners personally for the shortfall. Warrington J refused the application holding that the receiver could only look to assets the subject of the receivership for an indemnity.

19    The case was discussed at length in Rosanove v O’Rourke [1987] 1 Qd R 275 and the appeal in Rosanove v O’Rourke [1988] 1 Qd R 171. In the first instance decision, McPherson J said (at 277) that ‘the right of a trustee to indemnity out of the assets is so well settled as to need no exposition.’

20    Both that decision, and the appeal however, were concerned strictly with the same question that was decided in Boehm v Goodall: whether the parties to a partnership could be held personally liable for the receiver’s indemnity where the partnership assets are insufficient to meet the costs and charges.

21    Although Boehm v Goodall has stood the test of a considerable amount of time, for reasons observed in Carey (No 5) it pertains to an entirely different appointment regime.

22    Admittedly, in Australian Securities Commission v Berona Investments Pty Ltd (1995) 18 ACSR 772, Cooper J followed the first instance decision of McPherson J above in relation to the question of the costs and remuneration of interim receivers appointed by the Australian Securities Commission under s 1323 of the Act who were subsequently discharged without final relief being sought. Cooper J said (at 778):

The conduct established by the concessions and the conflict of duty and interest of Mrs Bell-Bradbury in her dealings with the property of the seventh and eighth respondents made the appointment and maintenance in office of the interim receiver not only reasonable but necessary… As the conduct of the seventh and eighth respondents and their controllers was the event which necessitated the appointment, there is no reason to depart from the ordinary rule which is stated by McPherson J in Rosanove v O’Rourke [1987] 1 Qd R 275 (at 278-9).

23    However, in Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194, which was an earlier decision in the same proceedings concerning other parties to the claim brought by the Australian Securities Commission, Hill J determined that the costs of the receivers should be borne by the Commission. As was the case in Berona Investments the interim receivers had also been discharged and the matter did not proceed to final hearing. Hill J said (at 205):

I do, however, think that the Commission should bear the costs of the receiver and thus indemnify Mr and Mrs Bunt in respect of those costs. In so saying I am influenced by the fact that there has been no investigation into the merits and that ordinarily the costs of the receiver should be the responsibility of the Commission, pending a determination of the question as between the parties who should bear those costs. The consent order does not seem to me to alter the position.

…

In my view, the ordinary order should require the Commission to be responsible for payment at the outset, leaving the ultimate responsibility as between the Commission and the person whose assets are to be seized, to be dealt with at a later time. If the occasion be appropriate to order that at first instance the receiver's costs should be paid out of the assets (and the receiver would, in any event, have a lien over those assets for his proper costs) the Court should specifically reserve the question of how the costs are to be borne as between the parties for determination at a later time.

(Emphasis added.)

24    In Aust-Home Investments, Hill J also had regard to the reasoning of Waddell J in Corporate Affairs Commission (NSW) v Smithson [1984] 3 NSWLR 547 (at 555-556) (also cited in Carey (No 5) (at [21])):

The remedy of appointing a receiver under s 573 may have severe effects on a defendant. The Court is precluded, by subs (2) from requiring the Commission to give any undertaking as to damages as a condition of granting an interim order before considering the application pursuant to subs (1). This appears to indicate that an order made after considering the application is not to be regarded as an interim order and that, as a consequence, the Court is not entitled to require the Commission to give any undertaking as to damages as a condition of appointing a receiver after considering the application. If this is so, and an order for the appointment of a receiver in respect of the property of a relevant person is made, as security for claims for which ultimately he may be held not liable, the relevant person will have suffered Unjustifiable damage for which he will have no right to compensation from the Commission or from anyone else. If a receiver is appointed on terms which permit him to take his remuneration out of the assets received by him, the unjustified damage caused to the relevant person would be so much greater. It should not be thought that in every case the property of a relevant person may be taken over by a receiver and his financial affairs investigated in order to provide security for claims against him, which may or may not succeed, on the basis that in any event the relevant person will have to pay the receiver's remuneration. It may well be that in a particular case, in order to avoid such a consequence, no order should be made permitting the receiver to take his remuneration out of the assets received, thus leaving it to the Commissioner to be responsible for such remuneration pending a determination of the liability of the relevant person.

(Emphasis added.)

25    None of these cases suggests that statutorily appointed interim receivers should be denied their remuneration, disbursements or an indemnity but in the unusual circumstances of statutorily appointed interim receivers, it is not appropriate at least in the first instance that the possibly innocent party whose assets are controlled by the appointment should necessarily be the source of the costs and consequences of doing so. Although Berona Investments followed the ordinary rule as articulated in Rosanove, Cooper J’s reasoning focused particularly on the serious conduct of the respondents which had been established such that the appointment of receivers was not only reasonable, but also necessary. That is not the standard of satisfaction that I reached regarding the appointment of interim receivers in this case and nor was I required to by the Act. For the reasons in Marco (No 3) the appointment was desirable but as I indicated at [184], ‘it should be borne in mind that, at least as far as my assessment of the matter is concerned at this stage, there would have been doubt as to the desirability of the appointment of an interim receiver if the receiver’s costs were to be, in effect, borne by the investors through reduction in the value of the assets of the defendants.’

26    In terms of distinguishing the rights of a receiver in the equitable jurisdiction from the situation where a receiver is appointed on application to the Court by ASIC under statute, as noted above, the statement of French J in Carey (No 5) (at [22]) (repeated for convenience), is persuasive:

… In my opinion the position of a receiver appointed in the exercise of equitable jurisdiction differs from that of a receiver appointed in the exercise of the statutory power conferred by s 1323. There is no entitlement that goes with the appointment, to recover remuneration from the assets of the relevant person. The appointment under s 1323 when made on the application of ASIC and based on an ongoing investigation, aids the public regulatory and protective functions conferred upon ASIC by the Corporations Act and by the Australian Securities and Investments Commission Act 2001 (Cth). That is a foundation for such an appointment which differs from that which underpins the private equitable remedy.

27    Regarding the Court’s power to order a party to provide an indemnity or meet the receivers’ costs, Carey (No 5) (at [19]-[20]) (also repeated for convenience) is apt:

19    The Corporations Act does not expressly authorise the Court to make an order that the persons or companies who are the subject of the orders appointing receivers to their property pay the costs of those receivers in discharging their function. The Court may confer upon the receivers ‘such powers as the Court orders’. Such powers necessarily relate to the ways in which the receivers can deal with a relevant person’s property. The imposition of a costs liability by the Court is not readily accommodated by words authorising it to confer powers on the receivers. Absent any express power in the Corporations Act the relevant provision can be found in s 23 of the Federal Court Act or in the implied incidental power – Jackson v Sterling Industries Ltd (1987) 162 CLR 612.

20    Although, in my opinion, the existence of a power to impose a liability to pay receivers’ remuneration out of the defendants’ assets can be found in s 23 as an incident of the powers conferred on the Court by s 1323 of the Corporations Act, it is not lightly to be exercised.

28    The receivers have been appointed on an interim basis to identify, preserve and secure assets. Their powers do not extend to the sale, letting or encumbering of the property and in this case their appointment is distinct from that of a receiver entrusted with realising assets for the immediate repayment of creditors. The risk of the receivers’ actions incurring a significant shortfall is arguably reduced by the nature of their appointment.

29    The interim receivers initially sought indemnity under s 419 and s 419A of the Act but now accept that the latter provision is the appropriate section. In this instance, the defendants have voluntarily accepted liability for an indemnity under that latter provision which in the circumstances of this case is appropriate, as it pertains to events, circumstances and agreements which were pre-existing and under the defendants’ control. The defendants contend that if any other indemnity is needed for liability beyond that given under s 419A, that ASIC should give it in the circumstances of this case. The interim receivers have now sought a conventional general indemnity for matters beyond those addressed by s 419A of the Act.

30    There was no suggestion the Court did not have the power to order such an indemnity under s 23 of the Federal Court of Australia Act 1976 (Cth).

31    There was no suggestion that the interim receivers should not have an indemnity. As s 57(2) of the Federal Court Act makes clear, they may be liable for actions taken.

32    Usually in exercise of equitable jurisdiction, the indemnity to a receiver would be supported by the assets of the affected party but for all the reasons given above, I do not consider that is appropriate in the present instance, in the case of an interim appointment under s 1101B(5) of the Act, rather than under an equitable appointment.

33    The interim receivers of course make clear, as might be expected, that they are not troubled who indemnifies them as long as they are indemnified.

34    In my view, it is both valid and appropriate in this case to require ASIC to meet any further indemnity beyond that given by the defendants under s 419A.

WHO SHOULD PROVIDE FOR THE EXPENSES INCURRED BY THE INTERIM RECEIVERS IN CONNECTION WITH THEIR APPOINTMENT?

35    The authorities discussed above are necessarily relevant both to the question of an indemnity and interim receiver expenses generally. A key point of contention in Marco (No 3) was that the defendants opposed the provision of the Reports if the costs of those Reports were to be borne out of their assets. It is by no means clear that there will be any additional expenses that is to say, disbursements, beyond the interim receivers’ remuneration in preparing the Reports but if there are to be any such expenses, on the same principles as above, they should be met by ASIC. Some of the cases have imposed various approval mechanisms but the Court has not presently been asked to consider such possibilities (see for example Australian Securities and Investments Commission v Letten (No 9) [2010] FCA 1459 per Gordon J).

THE DEFENDANTS’ EXPENSES

36    The orders proposed by the parties identify categories of ‘reasonable expenses’ of the defendants that the receivers should be able to pay subject to a dispute over the expenses pertaining to the required Reports and necessary investigations, a debate I have resolved in favour of the defendants. With that issue resolved, those categories have now been agreed and are reflected in the orders now made.

LEGAL FEES OF THE DEFENDANTS IN THE MARKOPOLOUS AND BAXTER PROCEEDINGS

37    On this topic I favour the argument advanced for ASIC.

38    The defendants seek an order that legal fees incurred in the Markopolous and Baxter Proceedings up to 27 May 2020 be met. In my view the interim receivers should determine whether these fees should be paid.

39    The fact that the fees were incurred prior to the appointment of the interim receivers is only one consideration. The more significant is that by the terms of the freezing orders, the defendants were not to incur such a liability without first obtaining Court approval.

40    Nor has any suggestion been made that the solicitors (being the same solicitors acting for the defendants in this matter) were not aware of that requirement.

41    There is then the whole debate as to whether the fees were reasonably incurred in the circumstances, putting aside any question of quantum.

42    That said, generally speaking a party whose assets are subject to a freezing order should be entitled to incur reasonable expense to take legal advice to protect his or her position. In my view the assessment of the reasonableness and otherwise of incurring the fees including the quantum of the fees is a matter best left to the interim receivers. There is little point in their being appointed if the Court interferes in the proper exercise of their discretion unless assistance is expressly sought by the liberty to apply provision.

CONCLUSION

43    The orders to be made will reflect these reasons.

Associate:

Dated:    23 June 2020