FEDERAL COURT OF AUSTRALIA

Mansfield v Thousand Angeles Island Pty Ltd (in liq), in the matter of Thousand Angeles Island Pty Ltd (in liq) (No 2) [2021] FCA 283

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to ss 37AG and 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground that the order is necessary to prevent prejudice to the proper administration of justice, the Confidential Affidavit of David Ian Mansfield dated 1 March 2021 and the accompanying Confidential Exhibit DIM-3 are not to be published and/or accessed except pursuant to an order of the Court until 19 March 2025 or such later date as ordered by the Court.

2.    Pursuant to r 9.05 of the Federal Court Rules 2011 (Cth), David Ian Mansfield (liquidator) in his capacity as liquidator of Thousand Angeles Island Pty Ltd (in liq) (Company) be joined to this proceeding as the second plaintiff.

3.    Pursuant to s 30(1) of the Bankruptcy Act 1966 (Cth) and s 90-15(1) of the Insolvency Practice Schedule (Bankruptcy), being Sch 2 of the Bankruptcy Act 1966 (Cth), the first plaintiff, David Ian Mansfield as trustee of the bankrupt estate of Jin Heung Yang (trustee), is justified in performing the obligations of the trustee under the document entitled Deed of Settlement and Release dated 26 February 2021 (Deed):

4.    Pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations), being Sch 2 to the Corporations Act 2001 (Cth), the liquidator is justified in performing the obligations of the liquidator under the Deed.

5.    Pursuant to s 477(2A) of the Corporations Act 2001 (Cth), the liquidator is entitled to compromise any claim of the Company against G S Invest Pty Ltd ACN 615 057 737 as trustee of the GS lnvestasi Trust (G S Invest) in relation to the transfer to G S Invest of 500,000 ordinary shares in Australian Institute of Higher Education Pty Ltd on around 19 October 2016.

6.    Pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations), being Sch 2 to the Corporations Act 2001 (Cth), upon receipt of the settlement sum (as that term is defined in the Deed) by the liquidator under the terms of the Deed, and after the payment of the fixed costs and expenses incurred by the liquidator in the winding up of the Company pursuant to Orders 7 and 8, the liquidator is justified in paying any remaining amounts to the bankrupt estate of Jin Heung Yang (bankrupt estate).

7.    Pursuant to s 60-10(1)(c) of the Insolvency Practice Schedule (Corporations), being Sch 2 to the Corporations Act 2001 (Cth), but subject to Order 12, the liquidator’s remuneration in respect of the winding up of the Company for the period 15 March 2019 to 12 February 2021 be fixed in the amount of $159,385.50 plus GST in the amount of $15,938.55.

8.    Pursuant to s 60-10(1)(c) of the Insolvency Practice Schedule (Corporations), being Sch 2 to the Corporations Act 2001 (Cth), but subject to Order 12, the liquidator’s remuneration in respect of the winding up of the Company for the period 12 February 2021 to the end of the liquidation be fixed in the amount of up to $30,000 plus GST in the amount of up to $3,000.

9.    The trustee’s costs of this Interlocutory Process be a cost in the administration of the bankrupt estate.

10.    Within 3 business days of the date of these Orders, the trustee must cause a copy of these Orders to be given to creditors of the bankrupt estate by means of a circular sent by email transmission to creditors (including persons claiming to be creditors) of the bankrupt estate for whom or which the trustee has current email addresses.

11.    In respect of Orders 7 and 8 only, any person demonstrating an interest in these Orders has liberty to apply to the Court to revoke or vary those Orders on three days’ notice.

12.    The liquidator must not pay any remuneration payable under Orders 7 and 8 for a period of 15 business days after the date of these Orders.

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

REASONS FOR JUDGMENT

FARRELL J:

INTRODUCTION

1    By an interlocutory process lodged on 1 March 2021, David Ian Mansfield in his capacity as trustee of the bankrupt estate of Jin Heung Yang and in his capacity as liquidator of Thousand Angeles Island Pty Ltd (in liquidation) (or Company) seek orders:

(a)    Joining Mr Mansfield to these proceedings in his capacity as liquidator of the Company;

(b)    For judicial advice and direction in relation Mr Mansfield entering into a Deed of Settlement and Release dated 26 February 2021 in his capacities as liquidator and trustee with G S Invest Pty Ltd as trustee for GS Investasi Trust (G S Invest) and the Company;

(c)    Pursuant to ss 37AG and 37AF of the Federal Court of Australia Act 1976 (Cth) in relation to a further affidavit sworn by Mr Mansfield on 1 March 2021 (confidential affidavit) and an exhibit comprising the Deed of Settlement and Release and a valuation report dated 1 June 2020 by McGrathNichol Advisory (and signed by Wynand Mullins) (valuer) commissioned by Mr Mansfield and G S Invest for the purpose of determining the value of Australian Institute of Higher Education Pty Ltd (AIHE) and of 500,000 shares in AIHE (AIHE shares) as at 20 October 2016 and 30 June 2019;

(d)    For judicial advice in relation to payment of the settlement sum (as defined in the Deed of Settlement and Release), after taking account of the liquidator’s costs and expenses incurred in the winding up of the Company, to the bankrupt estate; and

(e)    In relation to his remuneration as liquidator and costs incurred as trustee.

2    These are reasons for making orders generally in the form sought.

3    Central to these applications is the fact that Mr Mansfield’s investigations caused him to form the view that the transfer of the AIHE shares from Mr Yang to the Company and the transfer of the AIHE shares from the Company to G S Invest were for no consideration and may constitute voidable transactions. Mr Mansfield relied on the circumstances set out below in forming that view.

BACKGROUND

4    What follows derives from an affidavit sworn by Mr Mansfield on 1 March 2021 (open affidavit) and exhibit DIM-2, the confidential affidavit and exhibit DIM-3 and submissions filed on 18 March 2021.

5    Mr Mansfield was appointed trustee of Mr Yang’s bankrupt estate on 22 March 2018.

6    On 6 July 2018, pursuant to orders made by Foster J, Michael James Billingsley and Mr Mansfield were appointed as joint and several liquidators of other companies of which Mr Yang was the sole shareholder, being Jim Yang Properties Pty Ltd, Jim Yang Nominees Pty Ltd, Jim Yang Consultancy Pty Ltd, Cornerstone Education Group Pty Ltd and Palladium Investments International Pty Ltd (Yang entities).

7    Mr Mansfield is not aware of Mr Yang’s current whereabouts although he may be residing in South Korea. As far as Mr Mansfield is aware, Mr Yang has not returned to Australia since the commencement of his bankruptcy and he was overseas at the time it commenced.

8    Mr Mansfield’s investigation into Mr Yang’s affairs disclosed that:

(a)    From about 11 April 2007 until about 31 December 2015, Mr Yang was the director, company secretary and shareholder of AIHE, which continues to conduct a business of vocational education.

(b)    On 23 May 2016, Thousand Angeles Island was registered with Richard Quesada Cruz as its sole director and shareholder. Mr Cruz remained the director of the Company until 23 July 2018 and he ceased to be the sole shareholder on 3 October 2018.

(c)    On 23 May 2016, Mr Yang executed a document transferring AIHE shares to the Company. The ASIC Form 484 filed with ASIC discloses that the Company paid a total of $0.72 for the transfer of the AIHE shares.

9    On 27 June 2018, Mr Mansfield commenced proceedings in this Court against Mr Cruz and others seeking, amongst other relief, orders to set aside the transfer of the AIHE shares from Mr Yang to the Company.

10    On 19 July 2018, as trustee, Mr Mansfield entered into a deed of settlement and release with Mr Cruz and other parties. Under the terms of this deed, Mr Cruz was to transfer all shares he held in the Company to Mr Mansfield as trustee and to cooperate with and assist him.

11    On 3 October 2018, Mr Cruz and Mr Mansfield executed an Agreed Statement of Facts in which Mr Cruz admitted that:

(a)    He was a personal friend and confidant of Mr Yang who had approached him and asked for help in protecting his assets from creditors;

(b)    The Company did not make any payments to Mr Yang in consideration for the transfer of the AIHE shares; and

(c)    On about 19 October 2016, Mr Cruz acted upon instructions from a firm of solicitors acting for Mr Yang to cause the Company to execute a share transfer document transferring the AIHE shares to G S Invest.

12    On 3 October 2018, Mr Cruz entered into a deed of assignment by which he assigned all of his right, title and interest in the issued share capital of the Company to Mr Mansfield as trustee.

13    On 9 October 2018, as trustee, Mr Mansfield obtained orders pursuant to s 175 of the Corporations Act 2001 (Cth) correcting the register of the Company to record Mr Mansfield as trustee as the holder of shares in the Company then registered in the name of Mr Cruz: see Mansfield (Trustee) v Cruz [2018] FCA 1525.

14    On 21 December 2018, pursuant to s 249B of the Corporations Act and as sole shareholder of the Company, Mr Mansfield resolved that the Company be wound up by the Court. On 15 March 2019, this Court made orders winding up the Company and appointing Mr Billingsley and Mr Mansfield as joint and several liquidators: see Mansfield v Thousand Angeles Island Pty Ltd, in the matter of Thousand Angeles Island Pty Ltd [2019] FCA 376.

15    The sole task of the liquidator has been in relation to recovery of the AIHE shares because the Company did not conduct any trade or business and had no other assets or liabilities other than in connection with the AIHE shares. Mr Mansfield has not identified any creditor of the Company, other than the bankrupt estate.

16    As liquidator, Mr Mansfield undertook investigations into the transfer of AIHE shares from the Company to G S Invest which are discussed in the open affidavit at [42]-[51]. On the basis of those investigations he formed the view that G S Invest did not pay any consideration for the transfer of the AIHE shares and that, as liquidator of the Company, he had a claim over the AIHE shares. Based on his investigations and the evidence given by Daniel Lee-Archer at a public examination, he found that:

(a)    G S Invest was incorporated on 28 September 2016 and at all times its sole director and shareholder has been Mr Lee-Archer; and

(b)    Mr Lee-Archer did not sign any documents with respect to purchasing the AIHE shares and had not authorised any transaction for G S Invest to purchase the AIHE shares and G S Invest had not paid for the shares, although it had received dividends as shareholder from AIHE.

17    On 4 April 2019, solicitors for G S Invest informed Mr Mansfield’s solicitors that G S Invest would be willing to pay an agreed amount for retention of the AIHE shares in resolution of claims against G S Invest. The parties agreed that an independent qualified valuer be appointed to determine the amount to be paid for the AIHE shares.

18    On or about 3 October 2019, Mr Mansfield and G S Invest jointly engaged the valuer to value the AIHE shares as at 20 October 2016, being the date of the transfer of the shares, and as at 30 June 2019, being the end of the most recent financial year at that time. The valuation report was provided on 20 June 2020. Mr Mansfield provided a copy of the valuation report to a partner in the corporate finance division of Deloitte for the purpose of reviewing the valuation and the methodologies used by the valuer and confirming to Mr Mansfield whether there were any errors in the valuation.

19    On the basis of the valuation, Mr Mansfield’s solicitors and G S Invest’s solicitors were involved in discussions with a view to reaching an agreement on the amount to be paid by G S Invest in relation to the AIHE shares. This resulted in the execution of the Deed of Settlement and Release on 26 February 2021.

20    It is a condition precedent to the effectiveness of the Deed of Settlement and Release that the liquidator (and at his election, the trustee) obtain any approval or direction required for them to enter into the deed or give effect to its terms by filing a court application seeking judicial directions by 1 March 2021 (or such later date as may be agreed by the parties) and the liquidator and trustee will use their best endeavours to have the application determined expeditiously and as soon as possible upon filing, and in any event by no later than 31 March 2021.

21    The purpose of the orders now sought is to give effect to the Deed of Settlement and Release and to bring the liquidation of the Company to a conclusion.

PROPOSED ORDER RESTRICTING PUBLICATION OR DISCLOSURE OF THE CONFIDENTIAL AFFIDAVIT AND EXHIBIT DIM-3

22    As noted above, the confidential affidavit and exhibit DIM-3 relate to the valuation report and the Deed of Settlement and Release.

23    Mr Mansfield submitted that in order to enable the valuer to conduct the valuation, it was necessary for the valuer to be provided with financial and trading information about AIHE, which is a private company. The information disclosed is information which AIHE is not generally under an obligation to make public and were it to be provided to the public, doing so could result in detriment to AIHE which has a continuing business. In obtaining the valuation, Mr Mansfield entered into a confidentiality deed with AIHE, G S Invest and the valuer due to the commercially sensitive nature of the material to be provided to the valuer. Under the confidentiality deed, the valuation was to be kept confidential. The settlement sum, the subject of the Deed of Settlement and Release, was agreed by reference to the valuation. If the settlement sum were to be disclosed, it could be used to infer the valuation of AIHE which formed the basis of the value of the AIHE shares.

24    In Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (No 2) [2018] FCA 17 at [6]-[9], Perram J conveniently set out principles relevant to applications for orders under ss 37AG and 37AF of the Federal Court of Australia Act as follows:

3. Principles

6    This Court has recently set out the principles to be applied when it is considering whether or not to make a suppression or non-publication order: Chief Executive Officer of Australian Transaction Reports and Analysis Centre v TAB Limited (No 4) [2017] FCA 1532 (‘CEO of AUSTRAC v TAB (No 4)’) at [9]-[12]. The present application does not call for any greater elaboration of those principles but they may be distilled as follows:

(1)    the FCAA contains Part VAA which relates to suppression and non-publication orders;

(2)    the power of the Court to make such orders is contained in s 37AF and the grounds for making them are to be found in s 37AG which includes within it that ‘the order is necessary to prevent prejudice to the proper administration of justice’: s 37AG(1)(a);

(3)    such an order is not lightly to be made. It must be necessary to prevent prejudice to the proper administration of justice and not merely desirable: see Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at 666 [39]; Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [8] per Edelman J;

(4)    the Court may make any other order necessary to give effect to the primary order: s 37AF(2) of the FCAA.

(5)    the order, once made, must remain in place no longer than is reasonably necessary to achieve its purpose: s 37AJ(2); and

(6)    the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice (s 37AE) but no balancing exercise need be carried out between the utility of the order and the interest which open justice assumes under the FCAA: Australian Competition and Consumer Commission v Air New Zealand (No 12) [2013] FCA 533 at [21].

7    In CEO of AUSTRAC v TAB (No 4), the Court concluded that disclosure of the confidential information in that case would have undermined the purposes of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) which was apt to prejudice the proper administration of justice. This was significant in the context of an Act of Parliament which had amongst its purposes the thwarting of terrorism financing.

8    It might be thought that the mere protection of commercial-in-confidence information, which is essentially what Hytera seeks in this case, fits less comfortably within the statutory words ‘necessary to prevent prejudice to the proper administration of justice’. But this Court has held in a number of cases that commercial sensitivity can be an appropriate basis for making a suppression or non-publication order: see Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 235 per Bowen CJ; Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082 at [23] per Greenwood J; Cyclopet Pty Ltd v Australian Nuclear Science and Technology Organisation [2012] FCA 1326 at [7] per Jacobson J; Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430 (‘Air New Zealand (No 3)’) at [35]; Australian Competition and Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278 (‘Origin Energy’) at [148] per Katzmann J; ASE16 v Australian Securities and Investments Commission [2016] FCA 321 at [93] per Markovic J.

9    There are cogent reasons for this which have variously been described in those cases, but they are generally associated with preserving the integrity of the litigious process, likely to be jeopardised if commercial competitors could benefit from court ordered production of trade secrets by parties to a suit. That said, it is important to recall that the order must be necessary to protect the administration of justice. It can readily be imagined that a carte blanche approach to applications for s 37AF orders for which commercial confidentiality is claimed as a basis, would jeopardise the interest the public has in being able to access court documents under the Federal Court Rules 2011 (Cth) or to engage meaningfully with reasons published by the Court. As I have explained at [6(6)] of these reasons above, the safeguarding of that interest as a primary objective of the administration of justice is a mandatory consideration for the Court. Particularly is that so in cases such as the present, where the Agreement, and its interpretation, may become a central plank in the ultimate resolution of the proceeding, and thus, to the intelligibility of future reasons delivered by the Court.

25    I accept that there is a clear public interest in the due and beneficial administration of the estates of insolvent companies and individuals, which are both in issue in these proceedings. In this context, the Deed of Settlement and Release avoids the necessity for Mr Mansfield to incur the cost of litigation in pursuing claims available to him as liquidator of the Company for the benefit of its creditor and shareholder.

26    In evidence is the report to creditors of the bankrupt estate dated 16 April 2018. At section 3, it is said that in his statement of affairs, Mr Yang indicated that the deficiency in his estate was $28,493,706 while Mr Mansfield estimated the deficiency to be $30,915,137. After payment of the liquidator’s and trustee’s remuneration, costs and expenses, the benefit of the settlement sum will inure to the benefit of the creditors of the bankrupt estate on behalf of which Mr Mansfield holds shares in the Company. In order to obtain that value, it was necessary to establish a value for the AIHE shares. Were the Court not to protect such information for such period as is necessary, commercial parties may not be willing to provide such information for the purpose of establishing the value of assets the subject of litigation undertaken as part of an insolvent administration. That would frustrate the due administration of justice.

27    I note that not all of the information in the confidential affidavit is in fact confidential. Indeed, to the extent that it is not confidential its substance is disclosed in these reasons and in the submissions filed by Mr Mansfield.

28    Similarly, it may be that not everything in the Deed of Settlement and Release or the valuation is in fact confidential. As has been recognised in a number of cases, it would not serve the interests of justice to require the liquidator or trustee to spend time and money necessary to identify particular portions of the material that should be the subject of the order under ss 37AF and 37AG of the Federal Court of Australia Act: see Deputy Commission of Taxation, in the matter of Italian Prestige Jewellery Pty Limited (in liq) ACN 116 031 022 v Italian Prestige Jewellery Pty Ltd [2018] FCA 983 at [57]-[63] (Markovic J) relying on Deputy Commissioner of Taxation v ACN 154 520 199 Pty Ltd (No 2) [2017] FCA 755 at [37]-[42] (Gleeson J); Vickers, in the matter of J M Kelly Builders Pty Ltd (in liquidation) (No 2) [2019] FCA 1789 at [7] (Farrell J).

JOINDER OF LIQUIDATOR

29    I accept that the joinder of the liquidator of the Company is necessary to ensure that each issue in the proceedings is able to be heard and finally determined so as to avoid a multiplicity of proceedings. I note that Mr Mansfield is a party to the Deed of Settlement and Release in both his capacity as trustee and his capacity as liquidator.

ENTRY INTO AND PERFORMANCE OF THE DEED OF SETTLEMENT

30    In his capacity as trustee, Mr Mansfield seeks an order under s 30(1) of the Bankruptcy Act 1966 (Cth) and s 90-15(1) of the Insolvency Practice Schedule (Bankruptcy) (being Sch 2 of the Bankruptcy Act) (IPS (Bankruptcy)) that Mr Mansfield as trustee of the bankrupt estate is justified in entering into the Deed of Settlement and Release and performing his obligations under that Deed.

31    Under s 90-15 of the IPS (Bankruptcy): The Court has the power to “make such orders as it thinks fit in relation to the administration of a regulated debtor’s estate”: s 90-15(1). The Court may exercise this power on its own initiative or on an application under s 90-20, including by a person with a “financial interest” in the administration of the regulated debtor’s estate: ss 90-15(2), 90-20(1)(a). The trustee of a bankrupt estate is a person with a “financial interest” of this nature: ss 5-15(a), 5-30(a)(iii). The types of order the Court may make include “an order determining any question arising in the administration of the estate”: s 90-15(3)(a).

32    Section 30 of the Bankruptcy Act also confers a wide power on the Court. Section 30(1) provides as follows:

The Court:

(a)    has full power to decide all questions, whether of law or of fact, in any case of bankruptcy or any matter under Part IX, X or XI coming within the cognizance of the Court; and

(b)    may make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter.

33    In his capacity as liquidator, Mr Mansfield seeks the same advice under s 90-15(1) of the Insolvency Practice Schedule (Corporations) (being Sch 2 of the Corporations Act) (IPS (Corporations)). Section 90-15 of the IPS (Corporations) follows a similar format to the same numbered provision of the IPS (Bankruptcy).

34    Under s 90-15(1) of the IPS (Corporations): The Court has power to “make such orders as it thinks fit in relation to the external administration of the company”. Those orders may include “an order determining any question arising in the external administration of the company”: s 90-15(3)(a). A company is taken to be under external administration if a liquidator has been appointed in relation to it: s 5-15(c). The Court may exercise its power under s 90-15(1) on its own initiative or on an application under s 90-20: s 90-15(2). A person who has a “financial interest” in the external administration may make an application and a liquidator has such an interest by reason of the fact that a liquidator is an “external administrator”: s 90-20(1)(a), s 5-30 and s 5-20(c).

35    The power conferred under s 90-15 of both the IPS (Bankruptcy) and the IPS (Corporations) is discretionary. In Pirina, in the matter of Fund Options (Australia) Pty Ltd (in liquidation) [2020] FCA 1256 at [41]-[42], I considered authorities relevant (in the context of a liquidation) to the principles to be applied by the Court in the exercise of that discretion on an application of this kind.

41    The principles applied in determining applications for directions under the now repealed ss 497(3) and 511 of the Corporations Act are a useful guide on applications of the kind made by Mr Iannuzzi and now sought by the liquidators, albeit that s 90-15(1) is more broadly expressed than the former s 511 of the Corporations Act. The Court will generally make orders where it is just to do so and there is sufficient utility to the external administration: see GDK Projects Pty Ltd, in the matter of Umberto Pty Ltd (in liq) v Umberto Pty Ltd (in liq) [2018] FCA 541 at [33] (Farrell J) (GDK Projects Pty Ltd); Walley, in the matter of Poles & Underground Pty Ltd (Administrators Appointed) [2017] FCA 486 at [32]-[41] (Gleeson J).

42    The following principles enunciated by Brereton J in Re One.Tel Limited [2014] NSWSC 457 at [32]–[35] and [55] have been widely applied in guiding the determination of applications for directions in the nature of judicial advice:

32    … The jurisdiction is analogous to the judicial advice jurisdiction under (NSW) Trustee Act, s 63. The effect of a direction under s 511 is to sanction a course of conduct on the part of the liquidator so that he or she may adopt that course free from the risk of personal liability for breach of duty [Purchas, [36]; Re Timbercorp Limited (in liq) [2011] VSC 189, [3]; Re S&D, [88]].

33    While the ability of a liquidator to approach the Court for directions is intended to facilitate the liquidator’s functions and should be interpreted widely to give effect to that intention [Re One-Tel Networks Holdings Pty Ltd [2001] NSWSC 1065; (2001) 40 ACSR 83], it is insufficient to justify giving such directions that the liquidator wants reassurance about a commercial decision; some such issue as a question of law or procedure, of power, propriety or reasonableness, is required to justify approaching the court for directions, as was explained by Goldberg J (in the context of a voluntary administrator’s application for directions under s 447D) in Re Ansett Australia Limited and Korda [2002] FCA 90; (2002) 115 FCR 409; 40 ACSR 433 , [65]:

The prevailing principle adopted by the courts, when asked by liquidators and administrators to give directions, is to refrain from doing so where the direction sought relates to the making and implementation of a business or commercial decision, either committed specifically to the liquidator or administrator or well within his or her discretion, in circumstances where there is no particular legal issue raised for consideration or attack on the propriety or reasonableness of the decision in respect of which the directions are sought. There must be something more than the making of a business or commercial decision before a court will give directions in relation to, or approving of, the decision. It may be a legal issue of substance or procedure, it may be an issue of power, propriety or reasonableness, but some issue of this nature is required to be raised. It is insufficient to attract an order giving directions that the liquidator or administrator has a feeling of apprehension or unease about the business decision made and wants reassurance.

34.    In Sanderson v Classic Car Insurances Pty Limited (1985) 10 ACLR 115, Young J said (at 117) that the cases in which directions might properly be given fell into four categories, namely guidance on matters of law, guidance on questions of legal procedure, whether a liquidator should postpone a sale in order to achieve a better price, and where there are two competing offers for assets and a liquidator wishes to gain court directions in order to avoid a subsequent allegation that he or she has acted improperly in choosing one over the other. However, these categories are not exhaustive, and as Giles J said in Re Spedley Securities (at 85), immediately after noting that a Court will not make a liquidator’s commercial decision for him, “It is nonetheless common for a liquidator to seek directions as to whether he is justified in entering into a particular compromise”.

35.    Thus, while the Court will not generally give a direction where the matter relates to the making or implementation of a business or commercial decision, or where no legal issue is raised and there is no attack on the propriety or reasonableness of the liquidator’s decision, it may do so in the context of a proposed compromise [Re Spedley Securities, 85], and/or where the decision is likely to be contentious [Re Ansett, [65]; 7 Steel Distribution, [20]; Re S&D, [58]–[59]]. But the fact that a direction under s 511 - unlike an approval under s 477(2A) or (2B) — exonerates the liquidator from personal liability, means that a closer examination of the liquidator’s decision is required than under s 477. In short, the court should not make a direction the effect of which is to exonerate the liquidator from personal liability in respect of a commercial judgment that the liquidator is concerned may prove contentious, unless satisfied that the liquidator’s decision is, in all the circumstances, a proper one.

…

55.    As with judicial advice to trustees, the court is usually conservative in the advice it gives to liquidators under s 479(3) and s 511, and such advice is conventionally expressed in terms that “the liquidator would be justified” in adopting a particular course of action. The jurisdiction to give such directions is concerned with affording protection to the liquidator in connection with proposed future action, not with ratifying action that the liquidator has already taken. This view of the jurisdiction is supported by the following observations of McLelland J, as he then was, in Re GB Nathan & Co Pty Ltd (1991) 5 ACSR 673 , (at 678):

… the only proper subject of a liquidator’s application for directions is the manner in which the liquidator should act in carrying out his functions as such, and that the only binding effect of, or arising from, a direction given in pursuance of such an application (other than rendering the liquidator liable to appropriate sanctions if a direction in mandatory or propitiatory form is disobeyed) is that the liquidator, if he has made full and fair disclosure to the court of the material facts, will be protected from liability for any alleged breach of duty as liquidator to a creditor or contributory or to the company in respect of anything done by him in accordance with the directions.

36    Having regard to the equivalence of s 90-15 of the IPS (Corporations) and the IPS (Bankruptcy), similar principles should be applied in determining Mr Mansfield’s application as trustee.

37    In his submissions, Mr Mansfield drew the Court’s attention to the following matters as justifying the provision of judicial advice as sought:

(a)    Mr Mansfield, in his capacities as trustee and liquidator, is a party to the Deed of Settlement and Release solely for the purpose of receiving the benefit of all provisions and releases given by G S Invest and providing releases to G S Invest in those capacities.

(b)    In considering whether Mr Mansfield is justified in entering into the Deed of Settlement and Release, it is necessary to bear in mind that the bankrupt estate, the Company and Mr Mansfield in his capacities as trustee and liquidator may have a claim in relation to the transfer of the AIHE shares. Those claims might include a claim as trustee of the bankrupt estate against the Company for the transfer of the AIHE shares to G S Invest for no consideration and a claim as liquidator of the Company against G S Invest for the same reason.

(c)    Inevitably, the settlement sum (subject to payment of remuneration, costs and expenses properly payable to Mr Mansfield) will flow to the bankrupt estate.

(d)    The issue that arises is the manner in which the settlement funds will flow and the need to consider a possible or theoretical conflict. If Mr Mansfield as trustee were to make a claim against the Company, Mr Mansfield would be required to formulate and bring that claim and, in his capacity as liquidator, he would be required to adjudicate on and/or defend the claim. He could not do both. Relevant to this consideration is the fact that the only identified asset of the Company is the possible receipt of the settlement sum. Any claim that Mr Mansfield might have against the Company as trustee would be directly affected by the quantum of the settlement sum.

(e)    The importance of a person who has been appointed by the Court as a liquidator, receiver or trustee informing the Court immediately of a possible conflict of interest and the recognition that resolution of the conflict was for the Court to determine was stressed by Rares J in Australian Executor Trustees Ltd v Provident Capital Ltd, in the matter of Provident Capital Ltd (receivers and managers appointed) (in liq) [2013] FCA 1461 at [11] and [14]; see also Advance Housing Pty Ltd (in liq) v Newcastle Classic Developments Pty Ltd – as trustee for the Albans Unit Trust (1994) 14 ACSR 230 at 233-234 (Santow J) and Walley, in the matter of Poles & Underground Pty Ltd (Administrators Appointed) [2017] FCA 486 at [43]-[47] (Gleeson J).

(f)    The correct balance is struck in this case by giving directions that Mr Mansfield (in his dual capacities) is justified in entering into the Deed of Settlement and Release and performing the obligations imposed on him by the Deed given the following circumstances:

(i)    In his capacity as liquidator of the Company, Mr Mansfield has determined that the settlement sum represents a reasonable and appropriate compromise of any potential claims against G S Invest in connection with the transfer of the AIHE shares;

(ii)    His determination can be tested against the valuation;

(iii)    The settlement sum is within the valuation range;

(iv)    The performance of G S Invest’s obligations under the Deed of Settlement and Release will result in the settlement sum being paid to Mr Mansfield in his capacity as liquidator of the Company;

(v)    The Company did not carry on any business or incur any liabilities (save with respect to the AIHE shares);

(vi)    In his capacity as trustee, Mr Mansfield is the sole shareholder of the Company; and

(vii)    There can be no dispute that the bankrupt estate is entitled to the balance of the settlement sum, in the first instance in its capacity as the sole creditor of the Company and in the second instance as the sole shareholder of the Company.

38    Mr Mansfield also seeks an order under s 477(2A) of the Corporations Act in relation to compromising the claim that the Company has against G S Invest in relation to the transfer of the AIHE shares.

39    Section 477(2A) of the Corporations Act provides as follows:

(2A)    Except with the approval of the Court, of the committee of inspection or of a resolution of the creditors, a liquidator of a company must not compromise a debt to the company if the amount claimed by the company is more than:

(a)    if an amount greater than $20,000 is prescribed—the prescribed amount; or

   (b)    otherwise—$20,000.

40    In Royal v El Ali (No 4) [2017] FCA 299 at [21], Davies J said the following in relation to the exercise of this power:

The oft cited authority on the Court’s power to authorise a liquidator to compromise a debt is Re Spedley Securities Ltd (in liq) (1992) 9 ACSR 83. At 85–86, Giles J stated with respect to a predecessor provision of s 477(2A):

In any application pursuant to s 377(1) the court pays regard to the commercial judgment of the liquidator (Re Chase Corporation (Australia) Equities Ltd (1990) 8 ACLC 1118. That is not to say that it rubber stamps whatever is put forward by the liquidator but, as is made clear in Re Mineral Securities Australia Ltd [1973] 2 NSWLR 207 at 231-2, the court is necessarily confined in attempting to second guess the liquidator in the exercise of his [or her] powers, and generally will not interfere unless there can be seen to be some lack of good faith, some error in law or principle, or real and substantial grounds for doubting the prudence of the liquidator’s conduct. The same restraint must apply when the question is whether the liquidator should be authorised to enter into a particular transaction the benefits and burdens of which require assessment on a commercial basis. Of course, the compromise of claims will involve assessment on a legal basis, and a liquidator will be expected (as was made plain in Re Chase Corporation (Australia) Equities Ltd) to obtain advice and, as a prudent person would in the conduct of his [or her] own affairs, advice from practitioners appropriate to the nature and value of the claims. But in all but the simplest case, and demonstrably in the present case, commercial considerations play a significant part in whether a compromise will be for the benefit of creditors.

Section 477(2A) is a supervisory power of the Court in relation to the exercise by liquidators of their power to compromise debts granted by s 477(1) of the Corporations Act. The requirement imposed by s 477(2A) to obtain the Court’s approval for the exercise of that power is a protective measure against error or misconduct by a liquidator: Empire (Aust) Nominees Pty Ltd v Vince [2000] VSC 324; 35 ACSR 167; cited with approval in Re HIH Casualty & General Insurance Ltd (in liq) [2002] NSWSC 1036; and Boné, in the matter of ACN 002 864 002 Pty Ltd (in liq) formerly known as Petrolink Pty Ltd v Smith [2015] FCA 870 (“Boné v Smith”). In considering whether to grant approval, the primary concern of the Court is whether the compromise is a proper exercise of power and for the benefit of the creditors within the overall context of the liquidation: Boné v Smith, at [22]; Re Hughes [2016] FCA 423 at [20]. A court will generally not interfere with a liquidator’s commercial judgment to compromise a debt unless there is good reason, such as the identification of a legal issue or where the propriety or reasonableness of the liquidator’s decision to compromise the debt has been called into question. As stated by Brereton J in Re One.Tel Ltd (in liq) [2014] NSWSC 457; 99 ACSR 247:

The role of the court is to grant or deny approval to the liquidator’s proposal, not to reconsider every issue considered by the liquidator, nor to develop some alternative proposal which might seem preferable. In reviewing the liquidator’s proposal, the court pays due regard to his or her commercial judgment and knowledge of all of the circumstances of the liquidation, but satisfies itself that there is no error of law or ground for suspecting bad faith or impropriety, and evaluates whether the proposal is consistent with the expeditious and beneficial administration of the winding up

A court should not grant its approval under s 477(2A) if a case against the exercise of the power has been sufficiently shown.

41    In support of his claim to this order, Mr Mansfield submitted that a compromise of the Company’s claim against G S Invest would be a proper exercise of the liquidator’s power such that an order under s 477(2A) is warranted:

(a)    Since his appointment as liquidator of the Company, Mr Mansfield has investigated the Company’s claim arising out of the transfer of the AIHE shares to G S Invest for no consideration, including by conducting examinations of Mr Lee-Archer, and he has negotiated a settlement with G S Invest.

(b)    Mr Mansfield has joined with G S Invest in appointing a valuer for the purpose of determining an appropriate settlement sum. He has taken the further step of providing the valuation to a partner in the corporate finance department at Deloitte for the purpose of reviewing the methodologies and identifying any errors in the valuation.

(c)    He has acted commercially in the resolution of the Company’s claim against G S Invest and in so doing has obtained advice from practitioners appropriate to the nature and value of the claims as a prudent person would in the conduct of his own affairs as discussed in Re Spedley Securities Ltd (in liq) (1992) 9 ACSR 83 at 86.

(d)    Having so acted, Mr Mansfield has formed the opinion that the settlement sum represents a reasonable and appropriate compromise of any potential claims against G S Invest in connection with the transfer of the AIHE shares because:

(i)    The settlement sum is within the valuation range as at October 2016 provided for by the valuation, albeit at the lower end;

(ii)    The AIHE shares are not publicly traded and there is therefore a very limited market in which those shares could be sold;

(iii)    G S Invest is the most appropriate purchaser of the AIHE shares as it has held the shares since October 2016, has received the benefits associated with that shareholding and is aware of the potential value of the AIHE shares;

(iv)    The valuation discloses that the market value of the AIHE shares as at 30 June 2019 was substantially below the settlement sum and in circumstances where the business of AIHE may have suffered as a consequence of COVID-19 and restrictions on international students, any sale of the AIHE shares at current market value is likely to realise an amount less than the settlement sum;

(v)    If settlement is not reached with G S Invest, it will likely be necessary to commence proceedings for the recovery of the AIHE shares in circumstances where the liquidation is presently without funds and the Company has no assets that may be realised to fund litigation, the costs of the litigation are likely to be significant and there would be costs incurred to market and sell the AIHE shares to a private buyer; and

(vi)    There is no evidence or indication of any error or misconduct by the liquidator which indicates that making the order sought would be appropriate.

(e)    It has not been possible to obtain approval of creditors (rather than the Court) because the only creditor of the Company is the bankrupt estate and no proof of debt has been lodged because the liquidator cannot adjudicate on it, as he is the trustee of the bankrupt estate.

42    With one exception, I accept that it is appropriate to provide the judicial advice sought by Mr Mansfield as liquidator and trustee and to make orders under s 477(2A) having regard to the principles and matters set out above. That exception is giving judicial advice concerning entering into the Deed of Settlement and Release. Albeit that the operation of the Deed is subject to a condition precedent of getting “any approval or direction required” for entering into it, the fact is the trustee and liquidator have already performed that act and it appears that that condition precedent is more directed to approval under s 477(2A) than obtaining judicial advice, since such advice is not “required”. The jurisdiction to give directions in the nature of judicial advice is concerned with affording protection to a liquidator or trustee in connection with proposed future action, not with ratifying action that the liquidator or trustee has already taken. In any event, it is difficult to see that the liquidator and trustee are not adequately protected by judicial advice that they would be justified in performing their obligations under the Deed.

43    I accept that there are no commercial alternatives for the reasons given by Mr Mansfield and not through any failure of diligence on his part in either of his capacities.

44    In circumstances where the Company has no assets or liabilities other than those that may arise out of claims of the bankrupt estate in relation to its participation in what appears to have been a scheme to distance assets from Mr Yang prior to his bankruptcy (based on the evidence of Mr Cruz and Mr Lee-Archer), Mr Mansfield would be justified in entering into the Deed of Settlement and Release as trustee and liquidator and obtaining the benefit of the settlement sum for which there appears to be no realistic commercial alternative.

45    It was entirely appropriate for Mr Mansfield to address the theoretical conflict between his duties as liquidator and his duties as trustee. The submissions made by Mr Mansfield reflect the tension that exists when the same individual is both trustee of a bankrupt estate of a shareholder and liquidator of the company in which the bankrupt held shares.

46    However, having regard to all of the circumstances, the conflict is only theoretical in relation to the issue of whether Mr Mansfield would be justified in entering into the Deed of Settlement and Release in either capacity. There are no creditors of the Company to be prejudiced and all of Mr Mansfield’s actions in negotiating, executing and performing his obligations under the Deed of Settlement and Release result in a substantial benefit for the bankrupt estate either as a creditor or upon payment to Mr Mansfield as a shareholder upon the winding up of the Company where Mr Mansfield holds those shares as trustee for the bankrupt estate.

PAYMENT OF THE SETTLEMENT SUM (NET OF LIQUIDATORS REMUNERATION COSTS AND EXPENSES) TO THE BANKRUPT ESTATE

47    Mr Mansfield seeks an order under s 90-15 of the IPS (Corporations) that the liquidator would be justified in paying the settlement sum (after payment of the liquidator’s remuneration fixed by the Court, costs and expenses of the liquidator in the winding up of the Company) to the bankrupt estate.

48    Mr Mansfield has not initiated any court proceedings for the purpose of establishing the bankrupt estate’s claim to the AIHE shares, although he asserts that it (or he as trustee) has such a claim. Nor, as trustee, has he commenced proceedings against the Company or lodged a proof of debt as he could not adjudicate because of his conflicted position. Accordingly, no formal claim has been made by Mr Mansfield as trustee of the bankrupt estate. Therefore, neither the liquidator nor the Court has determined the validity of that claim.

49    Having regard to what Mr Cruz accepted in the Agreed Statement of Facts and Mr Lee-Archer’s evidence, it appears that the dealings in the AIHE shares, being their transfer to the Company in May 2016 and the subsequent transfer of AIHE to G S Invest in October 2016, in each case for no consideration, were part of a scheme to distance Mr Yang from ownership of the AIHE shares. It would therefore appear that there is a basis for a claim by the trustee to recover the value of the AIHE shares, either from the Company or G S Invest or for the liquidator or the Company to seek to recover the AIHE shares or their value as at October 2016. That is so, notwithstanding the reported assertion by G S Invest’s solicitors recorded in the liquidator’s report to creditors dated 14 June 2019 that the stated consideration for the transfer of the AIHE shares from the Company to G S Invest was reflective of their value at the time of their transfer to G S Invest, the transfer was at arm’s length, the Company and G S Invest had agreed to defer payment of the consideration and the consideration had not yet been paid to the Company. That assertion would appear to be inconsistent with Mr Lee-Archer’s evidence.

50    I accept that it is appropriate to make the order which Mr Mansfield seeks to resolve that uncertainty in light of the evidence before the Court. It is beneficial to both the external administration of the Company and the administration of the bankrupt estate and it has utility in avoiding unnecessary costs. Whether or not the settlement sum is properly the property of the bankrupt estate or the Company makes little practical difference as there are no other creditors of the Company. Therefore, if the settlement sum (net of the liquidator’s reasonable remuneration, costs and expenses) is not recoverable by the trustee as a voidable transaction that amount would be payable to the trustee as the sole shareholder of the Company.

LIQUIDATOR’S REMUNERATION

51    The liquidator seeks two orders pursuant to s 60-10(1)(c) of the IPS (Corporations):

(a)    That the liquidator’s remuneration in respect of the winding up of the Company for the period 15 March 2019 to 12 February 2021 be fixed in the amount of $159,385.50 plus GST in the amount of $15,938.55; and

(b)    That the liquidator’s future remuneration for the period from 12 February 2021 to the end of the liquidation be fixed in an amount up to $30,000 plus GST in the amount of up to $3,000.

52    Section 60-5(1) provides that an external administrator of a company is entitled to receive remuneration for necessary work properly performed by the external administrator in relation to the external administration in accordance with a remuneration determination.

53    Section 60-10 relevantly provides as follows:

60-10 Remuneration determinations

Remuneration determinations

(1)    A determination, specifying remuneration that an external administrator of a company (other than an external administrator in a members’ voluntary winding up) is entitled to receive for necessary work properly performed by the external administrator in relation to the external administration, may be made:

(a)    by resolution of the creditors; or

(b)    if there is a committee of inspection and a determination is not made under paragraph (a)—by the committee of inspection; or

(c)    if a determination is not made under paragraph (a) or (b)—by the Court.

Note: For determinations made by the Court, see also section 60-12 (matters to which the Court must have regard).

….

(3)    A determination under this section may specify remuneration that the external administrator is entitled to receive in either or both of the following ways:

(a)    by specifying an amount of remuneration;

(b)    by specifying a method for working out an amount of remuneration.

Remuneration on a time-cost basis

(4)    If a determination under this section specifies that the external administrator is entitled to receive remuneration worked out wholly or partly on a time-cost basis, the determination must include a cap on the amount of remuneration worked out on a time-cost basis that the external administrator is entitled to receive.

More than one remuneration determination may be made

(5)    To avoid doubt, more than one determination under this section may be made in relation to a particular external administrator of a company and a particular external administration of a company.

54    Section 60-12 provides as follows:

60-12 Matters to which the Court must have regard

In making a remuneration determination under paragraph 60-10(1)(c) or (2)(b), or reviewing a remuneration determination under section 60-11, the Court must have regard to whether the remuneration is reasonable, taking into account any or all of the following matters:

(a)    the extent to which the work by the external administrator was necessary and properly performed;

(b)    the extent to which the work likely to be performed by the external administrator is likely to be necessary and properly performed;

(c)    the period during which the work was, or is likely to be, performed by the external administrator;

(d)    the quality of the work performed, or likely to be performed, by the external administrator;

(e)    the complexity (or otherwise) of the work performed, or likely to be performed, by the external administrator;

(f)    the extent (if any) to which the external administrator was, or is likely to be, required to deal with extraordinary issues;

(g)    the extent (if any) to which the external administrator was, or is likely to be, required to accept a higher level of risk or responsibility than is usually the case;

(h)    the value and nature of any property dealt with, or likely to be dealt with, by the external administrator;

(i)    the number, attributes and conduct, or the likely number, attributes and conduct, of the creditors;

(j)    if the remuneration is worked out wholly or partly on a time-cost basis—the time properly taken, or likely to be properly taken, by the external administrator in performing the work;

(k)    whether the external administrator was, or is likely to be, required to deal with one or more controllers, or one or more managing controllers;

(l)    if:

(i)    a review has been carried out under Subdivision C of Division 90 (review by another registered liquidator) into a matter that relates to the external administration; and

  (ii)    the matter is, or includes, remuneration of the external administrator;

the contents of the report on the review that relate to that matter;

(m)    any other relevant matters.

55    The principles relevant to the exercise of the Court’s power to determine the liquidator’s reasonable remuneration were identified by the Bathurst CJ (with whom the other four members of the bench of the New South Wales Court of Appeal agreed) in Sanderson as liquidator of SAKR Nominees Pty Ltd (in liq) v SAKR [2017] NSWCA 38; (2017) 93 NSWLR 459 at [54]-[60] having regard to relevant case law. I accept these principles are relevant to determination of the liquidator’s remuneration:

(a)    A liquidator is entitled to reasonable remuneration and bears the onus of establishing that the amount of remuneration claimed is reasonable;

(b)    The liquidator must lead evidence in sufficient detail so that the Court can determine that question;

(c)    The Court must take into account the work done by the liquidator, whether it was reasonable to carry it out and the appropriateness of the amount charged for it. This is an evaluative process to which the Court must bring an independent mind;

(d)    The Court will generally need to be provided with an account in itemised form, setting out at least the details of the work done, the persons who did the work, the time taken to perform the work and the remuneration claimed;

(e)    It will be expected that the liquidator, in supplying material to enable the Court to assess whether a remuneration claim is reasonable, will supply material by reference to the matters set out in s 60-12 of the IPS (Corporations);

(f)    Proportionality is an important matter in considering whether remuneration is reasonable. The “value” of a liquidator’s work can include the benefit of resolving the position of creditors and beneficiaries; the benefit to the community of not permitting assets to remain unproductively in the hands of a defunct company for a long period; and work that was required but did not result in a return to creditors; and

(g)    There is no preference for any particular approach to remuneration. Whether time-based remuneration or a percentage of recoveries is appropriate in a particular case will depend, in part, on the basis on which the liquidator puts his or her application for remuneration; the view taken by any persons who oppose the remuneration application; and the view taken by the Court.

56    It is not the Court’s function in an application of this kind to undertake a line by line review of the narratives in time schedules in evidence, but the Court will review the evidence in a broad way to satisfy itself that it supports the other evidence that is led: see In the matter of JPD Media and Design Pty Ltd (subject to Deed of Company Arrangement) [2020] NSWSC 1311 at [11] (Black J) and the cases there cited.

57    Mr Mansfield submitted that, as the Company appears to have been incorporated for the sole purpose of receiving the benefit of the transfer of the AIHE shares from Mr Yang, the work undertaken in the period for which he seeks remuneration involved investigating the circumstances in which the Company received the AIHE shares from Mr Yang and the circumstances in which the Company transferred the AIHE shares to G S Invest and the steps taken to recover their value (including steps in connection with the valuation and negotiating the Deed of Settlement and Release). In his open affidavit at [89]-[92], Mr Mansfield has provided a summary of the work undertaken in the period from 15 March 2019 to 12 February 2021.

58    In relation to the quantum of costs and expenses which Mr Mansfield claims for the period up to 12 February 2021, the evidence before the Court includes the following:

(a)    Mr Mansfield’s curriculum vitae which indicates that he is a registered liquidator and trustee in bankruptcy with in excess of 30 years’ insolvency experience. He is a full member of the Australian Restructuring Insolvency and Turnaround Association and bound by its Code of Professional Practice for Insolvency Practitioners;

(b)    Mr Mansfield’s evidence that Mr Billingsley (a partner), Gordon Chan (a director), Diana Talevski (a client manager) and Joanne El-Haddad (a senior analyst) were the staff who primarily assisted in in the conduct of the liquidation, while some other employees were also used.

(c)    Mr Mansfield’s evidence that he endeavoured to structure the team so that, where appropriate, less senior and therefore more cost-effective staff were used to undertake particular tasks.

(d)    His evidence that a great deal of the work required more senior staff having regard to: the need to conduct public examinations; the specialised skills; the complexities arising around various legal matters; the interrelatedness of this winding up to the liquidation of the other Yang entities (referred to at [6] above) and the bankrupt estate; complexity in the negotiation of the Deed of Settlement and Release including obtaining the valuation report; expertise required to consider the valuation report and the methodologies used for the valuation report; and the potential for conflict discussed at [37(d)] above.

(e)    Mr Mansfield’s evidence about the method of time recording used by Deloitte in its practice management system. Deloitte requires that only reasonable and necessary time be recorded and charged. Entries are reviewed by senior staff members who have authority to reduce the amounts recorded so that if, upon review, work recorded is thought not to be reasonable or necessary, for instance because there was a learning curve or the work could have been done by a more junior employee, it can be reduced. Further, Mr Mansfield receives monthly reports which includes time charged to particular appointments. Having overseen those appointments and allocated work to staff he says that he is able to determine from the monthly report whether the time charged to a particular matter is reasonable or excessive and is then in a position to have it reduced;

(f)    Mr Mansfield’s evidence that there was a commonality of facts and issues between the liquidation of the Company, the bankrupt estate of Mr Yang and the liquidations of the Yang entities (referred to at [6] above). Where work was done that related to more than one of those matters, Mr Mansfield and his staff would record their time split proportionately across matters to which the work related;

(g)    At pages 298 to 311 of exhibit DIM-2 is a copy of excel spreadsheets compiled from Deloitte’s practice management system containing time entries for all work associated with the winding up of the Company (including time costs of corporate finance staff in relation to assessing the valuation) and expenses incurred. The spreadsheets provide detail of the charge out rates of each staff member having regard to their position (eg, partner, analyst, manager, graduate), time spent and task undertaken. From this information I note the following:

(i)    The total time costs incurred by the liquidator, Mr Billingsley and Deloitte staff involved in the liquidation is $144,405.50 in respect of 322 hours as at 12 February 2021. Mr Mansfield’s time costs were $10,125, Mr Billingsley’s costs were $23,025, Mr Chan’s time costs were $30,404.50, Ms Talevski’s time costs were $18,865 and Ms El-Haddad’s time costs were $31,140. I note that a graduate accounted for $9,542 and a “vacationer” accounted for $18,262 of the work in progress in relation to the winding up for that period;

(ii)    Separately, the total time cost of Deloitte’s corporate finance team for assessing the valuation was $14,980 in respect of 31 hours;

(iii)    The liquidation expenses claimed for the period to 12 February 2020 are $30,044.81, of which $30,000 relates to McGrathNichol’s fee for valuing the AIHE shares;

(iv)    Mr Mansfield does not seek to recover $33,599.50 of time costs because the relevant time entries took longer than what Mr Mansfield considers, in his experience, to have been reasonable in the circumstances or where the value added to the liquidation was not proportionate to the time cost.

59    As Mr Mansfield has not identified any source of recovery unrelated to the transfer of the AIHE shares, once the balance of the settlement sum is paid to the bankrupt estate, he proposes to bring an end to the liquidation and deregister the Company.

60    I have formed the view that the remuneration of $159,385.50 plus GST of $15,938.55 relates to work properly undertaken in the liquidation and that it is reasonable. While it will account for a significant proportion of the settlement sum, I am satisfied that the investigation required was attended by complexity having regard to the nature of the transactions with respect to the AIHE shares, the need for public examination, the need to reach agreement with G S Invest in relation to identifying and instructing a valuer and obtaining a valuation and the need to negotiate the Deed of Settlement and Release with G S Invest as well as the administration of the liquidation as disclosed in Mr Mansfield’s open affidavit.

61    The tasks that Mr Mansfield anticipates will be the subject of remuneration after 12 February 2021 include:

(a)    Obtaining the relief sought by the interlocutory process;

(b)    Receiving the settlement sum and performing the obligations of the liquidator and the Company under the Deed of Settlement and Release;

(c)    Paying the liquidator’s costs and expenses;

(d)    Paying the balance of the settlement sum to the bankrupt estate;

(e)    Issuing a final report to creditors; and

(f)    Liaising with ASIC in relation to the end of the liquidation in deregistration of the Company.

62    Mr Mansfield submitted that:

(a)    There is utility in making a fixed remuneration order for the period from 13 February 2021 since that would avoid the necessity for returning to Court (in circumstances where the Company has no creditors after the settlement sum has been paid to the bankrupt estate); and

(b)    He is prepared to forego any future remuneration to the extent to which exceeds $30,000 and GST of $3,000.

63    The Court does not have before it any evidence of work in progress for the period from 13 February 2021. However it is clear that there will be legal costs associated with the preparation for and hearing of the interlocutory process and it will be necessary to undertake the further work described by Mr Mansfield. Whether that would amount to costs and expenses of $30,000 plus GST has not been demonstrated. When this matter was raised at the hearing, counsel for Mr Mansfield indicated that it would be appropriate to cast the order with respect to future remuneration as being in respect of an amount up to $30,000 plus GST of up to $3,000. I accept that it is appropriate to make that order given the way time is recorded and reviewed by Mr Mansfield and the nature of the work yet to be done as at 13 February 2021. As required, the time-costed amount will be capped and if all of those costs are not incurred, they will not be charged.

64    I note that I have considered whether it was appropriate to make an order for the liquidator’s remuneration having regard to the fact that it appears that Mr Mansfield’s primary position is that the incorporation of the Company and the transfers of AIHE shares were part of an effort to defeat Mr Yang’s creditors by putting those shares beyond their reach. In those circumstances it might be considered that a substantial part of the work undertaken in the course of the liquidation that might properly be considered to have been undertaken by the trustee of the bankrupt estate. Having regard to Mr Yang’s disclosures concerning his assets and liabilities referred to above, it might be expected that there are creditors of his estate who would be in a position to vote on the determination of the trustee’s remuneration.

65    Ultimately, however, I am satisfied that it was appropriate to make the orders set out above as the work identified by Mr Mansfield was properly undertaken by Mr Mansfield and Mr Billingsley as liquidators of the Company. Their appointment as liquidators has enabled more efficient investigation of the Company’s affairs including the undertaking of relevant examinations and it was necessary and convenient for the Company to be involved in the resolution of the issues surrounding the AIHE shares for the ultimate benefit of the bankrupt estate.

66    Having said that, the creditors of the bankrupt estate were not notified of this application and it is my view that they have an interest in the remuneration orders, since amounts payable in accordance with those orders will be deducted from the settlement sum. In those circumstances, it was appropriate to include orders granting creditors of the bankrupt estate liberty to apply to have those orders revoked or varied and prohibiting the liquidator from making any remuneration payable for a period of 15 business days after the date of judgment to give any creditor of the bankrupt estate.

CONCLUSION

67    For the above reasons, I made the orders generally as sought by Mr Mansfield, including an order that the trustee’s costs of the interlocutory process be costs in the administration of the bankrupt estate.

Associate:

Dated:    25 March 2021