Federal Court of Australia

Rohrt, in the matter of Rose Guerin and Partners Pty Ltd (in liq) v Princes Square W24NY Pty Ltd (No 2) [2021] FCA 547

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 57(1) of the Federal Court of Australia Act 1976 (Cth), the plaintiffs be appointed as receiver and manager over the property, assets and undertaking of The Rose Guerin and Partners Trust.

2.    Without approval by court order, the plaintiffs are not to charge any fees in relation to the liquidation or administration of Rose Guerin and Partners Pty Ltd (in liquidation) or in relation to the plaintiffs’ appointment as receiver and manager over the property, assets and undertaking of The Rose Guerin and Partners Trust.

3.    The defendant will pay the plaintiffs’ costs of the application, to be taxed if not agreed.

4.    There is liberty to apply.

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

REASONS FOR JUDGMENT

ANDERSON J:

INTRODUCTION

1    The plaintiffs (liquidators) are the joint and several liquidators of Rose Guerin and Partners Pty Ltd (in liquidation) (Company). The Company was, at 19 December 2019, the trustee of The Rose Guerin and Partners Trust (Trust). The defendant ostensibly replaced the Company as trustee of the Trust on 19 December 2019.

2    By their amended originating process filed 8 July 2020, the liquidators seek orders for the appointment of the liquidators as receiver and manager over the property, assets and undertaking of the Trust.

3    The application is made pursuant to s 57(1) of the Federal Court of Australia Act 1976 (Cth) which provides:

The Court may, at any stage of a proceeding on such terms and conditions as the Court thinks fit, appoint a receiver by interlocutory order in any case in which it appears to the Court to be just or convenient so to do.

4    For the reasons that follow, the liquidators will be appointed as receiver and manager over the property, assets and undertaking of the Trust. However, there will also be an order that, without approval by court order, the liquidators are not to charge any fees in relation to the liquidation or administration of the Company or in relation to the liquidators’ appointment as receiver and manager over the property, assets and undertaking of the Trust.

EVIDENCE

5    The liquidators have filed the following affidavits of:

(1)    Richard Trygve Rohrt dated 19 May 2020 (unsworn) (first Rohrt affidavit).

(2)    Richard Trygve Rohrt dated 24 June 2020 (unsworn) (second Rohrt affidavit).

(3)    Richard Trygve Rohrt dated 15 July 2020 (unsworn) (third Rohrt affidavit).

(4)    Richard Trygve Rohrt dated 21 August 2020 (unsworn) (fourth Rohrt affidavit).

(5)    Richard Trygve Rohrt dated 11 September 2020 (unsworn) (fifth Rohrt affidavit).

(6)    Richard Trygve Rohrt dated 14 October 2020 (unsworn) (sixth Rohrt affidavit).

(7)    Richard Trygve Rohrt dated 15 October 2020 (unsworn) (seventh Rohrt affidavit).

(8)    Richard Trygve Rohrt dated 20 November 2020 (unsworn) (eighth Rohrt affidavit).

(9)    Richard Trygve Rohrt sworn 21 April 2021 (ninth Rohrt affidavit).

6    As a result of COVID-19, the first Rohrt affidavit to the eighth Rohrt affidavit were unsworn or not affirmed. At the hearing of this proceeding on 27 April 2021, I directed that the liquidators file sworn or affirmed versions of these affidavits. On 28 April 2021, one of the liquidators, Mr Richard Rohrt, filed a further sworn affidavit (tenth Rohrt affidavit). In the tenth Rohrt affidavit, Mr Rohrt confirmed that, at the time of filing each of the first Rohrt affidavit to the eighth Rohrt affidavit, the matters Mr Rohrt deposed to in those affidavits were true and correct at the time the affidavits were filed in an unsworn form. Mr Rohrt deposed that, unless Mr Rohrt corrected a matter in a subsequent affidavit, the contents of those affidavits are true and correct.

7    The defendant filed the following affidavits:

(1)    affidavit of Rosemarie Brenda Guerin affirmed 28 July 2020 (first Guerin affidavit);

(2)    affidavit of Rosemarie Brenda Guerin dated 14 October 2020 (not affirmed) (second Guerin affidavit);

(3)    affidavit of Rosemarie Brenda Guerin dated 6 November 2020 (not affirmed) (third Guerin affidavit);

(4)    affidavit of Rosemarie Brenda Guerin affirmed 22 April 2021 (fourth Guerin affidavit).

8    Like the position of the liquidators, the second Guerin affidavit and the third Guerin affidavit were not affirmed for reasons associated with COVID-19. At the hearing of this matter on 27 April 2021, I directed that the defendant file sworn or affirmed versions of these affidavits. The defendant has filed an affidavit of Ms Rosemarie Brenda Guerin affirmed 3 May 2021 (fifth Guerin affidavit) in which Ms Guerin deposes that, at the time of filing the second Guerin affidavit and the third Guerin affidavit, the matters deposed to in those affidavits were true and correct.

FACTUAL BACKGROUND

9    The relevant factual background can be summarised as follows.

10    The Trust was created by a deed of trust dated 2 July 2012 (Trust Deed). Pursuant to the Trust Deed, the Company was the trustee, Ms Rosemarie Brenda Guerin (Ms Guerin) was the primary beneficiary, and Ms Guerin was the appointor.

11    The Company as trustee of the Trust conducted an accountancy practice at Potts Point, New South Wales under the name “RBG” (Business).

12    On 19 December 2019, the current liquidators were appointed joint and several administrators of the Company pursuant to s 436C of the Corporations Act 2001 (Cth) (Corporations Act) by a secured creditor, Fundit Limited trading as “Banjo Loans” (Fundit).

13    On 19 December 2019, following the appointment of the liquidators as administrators, one of the liquidators, Mr Rohrt, attended at the Company’s business premises in Potts Point, New South Wales. He sought to inform the sole director and secretary of the Company, Ms Guerin, of his appointment and take control of the assets of the Company. Ms Guerin was not present at that time and Mr Rohrt arranged to meet Ms Guerin at the Company’s premises the next morning.

14    By a deed of variation dated 19 December 2019 (Variation Deed), the Company was purportedly removed as trustee of the Trust and replaced by the defendant.

15    On 20 December 2019, Mr Rohrt attended the Company’s business premises again.

16    On 22 December 2019, the liquidators gave to Ms Guerin, among other things, a notice pursuant to s 509A of the Corporations Act for the production of books and records of the Company.

17    On 5 February 2020, at a meeting of creditors, the liquidators were appointed joint and several liquidators of the Company.

18    On 21 May 2020, the liquidators obtained orders for a warrant to be issued pursuant to s 530C of the Corporations Act (Warrant).

19    On 27 May 2020, the Warrant was executed. The liquidators seized various books and records relating to the Company and the Business, and a Ferrari motor vehicle. Matters relating to the Ferrari are not particularly relevant to this judgment. They are addressed in detail in Rohrt, in the matter of Rose Guerin and Partners Pty Ltd (in liq) v Princes Square W24NY Pty Ltd [2021] FCA 483

THE PARTIES’ SUBMISSIONS

20    The parties made the following submissions.

The liquidators’ submissions

21    The liquidators’ submissions referred to a range of authorities concerning the appointment of a receiver and manager of a trust. Those authorities included Martyniuk v King & Ors [2000] VSC 319, The University of Western Australia v Gray (No 6) [2006] FCA 1825 (UWA v Gray), Bendigo and Adelaide Bank Limited, in the matter of Reborn Enterprises Pty Ltd (Trustee) v Reborn Enterprises Pty Ltd (Trustee) [2016] FCA 1197, Hosking, in the matter of Business Aptitude Pty Ltd (in liquidation) [2016] FCA 1438 (Hosking), and Freeman, in the matter of Blue Oasis Holdings Pty Ltd (In Liquidation) [2018] FCA 822.

22    The liquidators submit that, in light of those authorities, it is appropriate and/or necessary to appoint the liquidators as receiver and manager of the Trust assets for three reasons. First, it is said that the Trust was solely a trading trust and the liquidators need access to the books and records of the Trust to properly perform their functions in winding up the Company. Second, it was said that appointing the liquidators as a receiver and manager of the Trust is necessary so that the liquidators can pursue the Company’s entitlement to indemnification from the assets of the Trust. Third, the liquidators asserted that there were “irregularities” associated with the removal of the Company as trustee.

23    The liquidators submit that the Company was, according to the defendant, the trustee of the Trust until 19 December 2019 at which time the Company was allegedly removed as trustee and the defendant appointed in its place. The Trust, at all times whilst the Company was trustee, operated as a trading trust with regard to the Business. The liquidators submit that the defendant allegedly replaced the Company as trustee of the Trust from 19 December 2019 and continued to operate the Business from that date.

24    In these circumstances, the liquidators submit that, prior to 19 December 2019, all income earned and expenses incurred by, and all payments made in relation to, the Business were earned, incurred and paid by the Company in its capacity as trustee of the Trust. The liquidators submit that, as liquidators, they are obliged to investigate all of the Company’s affairs, including transactions, in order to discharge their statutory duties. The liquidators submit that, given the sole function of the Company, as trustee of the Trust, was to operate the Business, the liquidators are obliged to investigate the operations of that Business. The liquidators submit that, to that end, they have sought the books and records of the Trust and the Business, and the co-operation of Ms Guerin, as the director of the Company, in providing the required information pursuant to the Corporations Act.

25    The liquidators submit that there are various matters that give rise to concerns that the liquidators have not been provided with full and frank disclosure of information regarding the affairs of the Trust and the Business. The liquidators submit that those matters necessitate the liquidators’ appointment as receiver and manager of the Trust to conduct a complete investigation. The liquidators referred to three matters in this regard. First, the liquidators contend that a statement by Ms Guerin to the New South Wales Police states that “[m]y clients include business clients in the industries of medicine, construction engineering, hair and beauty, professional services and high net worth clients who were based in Australia or internationally”. The liquidators contend that this statement is not consistent with the books and records provided so far to the liquidators. Second, one of the liqudators, Mr Rohrt, has deposed to difficulties in obtaining books and records of the Company. This is set out in the third Rohrt affidavit and the fourth Rohrt affidavit. Third, Ms Guerin provided the liquidators with a Report on Company Activities and Property completed “as a company and not as a trust”: see third Rohrt affidavit, [22] and exhibit “RR-12”.

26    As to the issue of indemnification, the liquidators submit that there can be no doubt that the Company is entitled to be indemnified from the assets of the Trust in relation to any debts incurred by the Company in its capacity as trustee of the Trust, at the very least prior to 19 December 2019. As authority for that proposition, the liquidators cited In the matter of Stansfield DIY Wealth Pty Ltd (in liquidation) [2014] NSWSC 1484; 291 FLR 17 (Re Stansfield) at [10]. The liquidators submit that the only way the Company can give effect to its right of indemnity is for the liquidators to be appointed receiver and manager of the Trust assets so that they may call in those assets and realise them for the purposes of discharging any liabilities outstanding.

27    The liquidators referred to the Variation Deed, which, on its face, removed the Company as trustee of the Trust and appointed the defendant as trustee. The liquidators submit that the validity of the Variation Deed is questionable for a range of reasons. Those reasons included four matters. First, it was said that Ms Guerin in her affidavit has not provided any explanation as to why Mr Rohrt was not informed earlier than 8 January 2020 of the purported removal of the Company as trustee on 19 December 2019. Second, it was said that the current name of the defendant is recorded on the Variation Deed dated 19 December 2019 but the name of the defendant at that time was McCarthy International Pty Ltd and was not changed to the current name until 9 January 2020: see third Rohrt affidavit, exhibit “RR-22”. One of the liquidators, Mr Rohrt, is said to have observed meeting minutes of the defendant resolving to change its company name from McCarthy International Pty Ltd to Princes Square W24NY Pty Ltd. It is said that those meeting minutes are dated 9 January 2020: fourth Rohrt affidavit, [37]. Third, the liquidators submit that the Variation Deed purports, on its face, to have been prepared by “DBA Lawyers”, but that firm has advised that it had no involvement in the preparation of the document: third Rohrt affidavit, [38]–[39] and exhibit “RR-24”. Fourth, the liquidators submit that Ms Guerin, in her affidavit evidence, has not responded to these matters and the Court should therefore accept that there has been misconduct and mismanagement in relation to the Trust.

28    The liquidators submit that these matters call into question whether the Variation Deed was in fact prepared and executed on 19 December 2019. The liquidators submit that, even if the Company remained the valid trustee of the Trust, there is inconsistent authority as to whether the liquidators can deal with the Trust assets in their capacity as liquidators. In these circumstances, the liquidators submit that, rather than attempt to quell the controversy as to which entity is the valid and correct trustee, the appropriate course of action is to appoint the liquidators as receiver and manager of the Trust assets so they can properly perform their duties.

29    The liquidators submit that a receiver and manager can be appointed over trust assets where there has been misconduct, waste, or improper disposition of assets or the trust is in a state of disarray, if it appears that the trust property has been improperly managed, or is in danger of being lost, or if the “circumstances render it just and convenient”.

30    The liquidators submit that those criteria are satisfied in this case for three reasons. First, the liquidators submit that there has been misconduct in relation to the management of the Trust, and the Trust is in disarray as a result of the purported removal of the Company as the trustee of the Trust, the Company’s failure to provide books and records to the liquidators, and the Company’s failure to co-operate with the liquidators. Second, the liquidators submit that the Trust property has been improperly managed by reason of the purported removal of the Company as trustee of the Trust, and the failure to provide to the Company proper indemnification as the former trustee of the Trust. Third, the liquidators submit that there are unresolved issues relating to the winding up of the Company, the purported removal of the Company as trustee of the Trust, and the Company’s right to indemnification out of the assets of the Trust. The liquidators submit that, in these circumstances, it is appropriate to appoint the liquidators as receiver and manager of the property, assets and undertaking of the Trust.

31    The liquidators submit that they have identified a number of creditors of the business operated by the Trust from the time the Company was trustee of the Trust and which have lodged proofs of debt in the winding up: fourth Rohrt affidavit, [44] and eighth Rohrt affidavit. The liquidators submit that the relevant creditors that have lodged formal proofs of debt include:

(1)    the Australian Tax Office (ATO) in the sum of $191,335.49. Mr Rohrt also states that he expects the amount owed to the ATO to increase when income tax returns for the Company are filed for the years ending 30 June 2019 and 2020 as well as BAS and PAYG returns for various periods: eighth Rohrt affidavit, [23];

(2)    Ms Guerin for $2,522,541.01 lodged on 12 November 2020: eighth Rohrt affidavit, [24];

(3)    Adchris Pty Ltd for $22,175: eighth Rohrt affidavit, [25]–[26]. The liquidators submit that, while Ms Guerin asserts that Adchris is not a true creditor of the Company, the liquidators cannot adjudicate on that assertion until they are in possession of all relevant material;

(4)    Marlon Fraser and Elevaro Group Pty Ltd for $81,816.22: eighth Rohrt affidavit, [27];

(5)    Westpac Bank for $192,619.01: eighth Rohrt affidavit, [28];

(6)    Eight Capital Pty Ltd for $1,600,000 plus interest: eighth Rohrt affidavit, [29]–[31];

(7)    MYOB for $27,327.80: eighth Rohrt affidavit, [32].

32    The liquidators submit that, in addition to the above claims, there has been an application before the Court in relation to a Ferrari motor vehicle. In relation to that matter, BMW Finance Australia (BMW) provided finance to the Company as trustee of the Trust for the purchase of that vehicle. That matter is the subject of the Court’s decision in Rohrt, in the matter of Rose Guerin and Partners Pty Ltd (in liq) v Princes Square W24NY Pty Ltd [2021] FCA 483. The liquidators submit that BMW will be an unsecured creditor of the Company.

33    The liquidators submit that it is insufficient for the defendant to state that all of the “arm’s length” creditors have been satisfied and so therefore the winding up has been resolved or is no longer necessary. The liquidators submit that their obligations are to wind up the Company for the benefit of all creditors, and that includes Ms Guerin. The liquidators submit that the liquidators’ remuneration in the winding up also has priority over payments to creditors. The liquidators submit that Ms Guerin cannot simply assert she has paid all the creditors she has assessed as “legitimate”, the winding up has been dealt with and, as a result, there is no need to appoint a receiver and manager to the assets of the Trust.

34    The liquidators also submit that the Company’s right of indemnity out of the assets of the Trust is imperilled. The liquidators submit that the defendant does not say that there are no debts outstanding which were incurred during the time that the Company was trustee of the Trust. The liquidators submit that, instead, the response has been that Ms Guerin is endeavouring to reach accommodation with those creditors. The liquidators submit that they are unaware of the current status of the Business (formerly operated by the Company as trustee of the Trust) and the debtors outstanding.

35    The liquidators submit that they have been appointed liquidators of the Company and have statutory obligations to, among other things, investigate the operations of the Company, call in all assets, and ascertain and pay all creditors. The liquidators submit that they are not absolved of their statutory obligations by reason of Ms Guerin making payments to those that Ms Guerin believes to be legitimate creditors of the Company.

36    The liquidators also referred to various evidence from Ms Guerin which sought to demonstrate disharmony between Ms Guerin and at least one of the liquidators, Mr Rohrt. The liquidators submit that such evidence should not be accepted.

The defendant’s submissions

37    The defendant submits that the power to appoint a receiver and manager is to be broadly construed: Krejci, Re Camporeale Properties Pty Ltd (In Liq) [2019] FCA 2199.

38    The defendant submits that a court will not readily make an order appointing a receiver and manager to all the assets of a trading company or trust unless convinced of its necessity. The defendant submits that, the remedy being drastic, it should be allowed only under pressing circumstances: citing National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] VR 386 at 539-540 and the cases there cited.

39    The defendant submits that the actual power or jurisdiction of a court of equity to grant a receiver depends simply upon its jurisdiction over the person of the defendant, just as its power or jurisdiction to grant an injunction does. The defendant submits that proper exercise of the jurisdiction – but not the jurisdiction itself – depends upon whether the legal remedies may be inadequate to meet the ends of justice: National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386 at 544-546 and the cases cited there.

40    The defendant submits that the general common ground upon which the Court appoints a receiver and manager is the protection or preservation of property for the benefit of persons who have an interest in it: Hosking at [17]. The defendant submits that, in Hosking, the Court was satisfied that the liquidator should be appointed as receiver and manager to ensure that they are in a position to convey secure title to the assets of the business: Hosking, [25].

41    The defendant submits that a receiver and manager can be appointed over trust property to secure the trustee’s right of indemnity out of the assets of the trust: Hosking, [21]. The defendant submits that, in Grime Carter & Co Pty Ltd v Whytes Furniture (Dubbo) Pty Ltd [1983] 1 NSWLR 158, McLelland J held at p 162 that the question of whether liquidators should accept appointment to another office depends upon whether there is any real prospect of conflict of duties, or conflict between interest and duty, arising from holding both offices. This test was applied to the appointment of a liquidator as receiver and manager in Bastion v Gideon Investment Pty Limited (in liq) (2000) 35 ACSR 466 at [68]. The liquidators submit that, in Hosking, it was held that there was no obvious conflict between the duties of the liquidator as liquidator and as receiver and manager because both the company and the trust appeared to be insolvent. Further, the beneficiaries of the trust consented to the appointment of the liquidator as receiver and manager.

42    Having regard to those authorities, the defendant opposes the appointment of a receiver and manager to the assets and undertakings of the Trust, for the following reasons.

43    First, for the purposes of argument, the defendant was prepared to assume (but not concede) that the appointment of a receiver and manager to a corporate trustee is something which facilitates the protection or preservation of property for the benefit of persons who have an interest in it. However, the defendant submits that in this case the materials identify that Ms Rose Guerin has reached agreement with the “arms-length” creditors as to payment of the arms-length creditor’s claims, and that a financial facility has been obtained by Ms Rose Guerin to enable those payments to be made. The defendant submits that this means that the appointment of a receiver and manager to the corporate trustee is not required for the protection or preservation of property for the benefit of those arms-length creditors.

44    Second, the defendant submits that, aside from the arms-length creditors, the only other creditor is Ms Rose Guerin herself, and she does not need the appointment of a receiver and manager to the corporate trustee for the protection or preservation of property for her benefit.

45    Third, as to certain other creditors, the defendant submits as follows.

46    The defendant submits that one creditor, Adchris Pty Ltd, has no realistic claim. The defendant submits that this was recognised by the liquidators by admitting the claim in the sum of $1.00 for the purpose of voting rights, as against the claim made in the sum of $22,175. The defendant submits that the claim of Adchris Pty Ltd purports to be a claim made by an employee, but Adchris Pty Ltd was not an employee of the entity in liquidation, as the entity in liquidation did not have any employees or sub-contractors. Adchris Pty Ltd was also not an employee of the Trust. The defendant submits that Adchris Pty Ltd was, in fact, paid as a contractor by Jeanie 2 Investments Pty Ltd, as it acts as the service entity of the Company. The defendant submits that, if Adchris Pty Ltd sought to dispute any entitlement, that entitlement should be sought from Jeanie 2 Investments Pty Ltd. The defendant submits that, as a result, the appointment of a receiver and manager to the corporate trustee is not required for the protection or preservation of property for the benefit of Adchris Pty Ltd as that entity has no interest in any property.

47    The defendant submits that the ATO has protections for payment to it under Sub-Division 16-B and Division 268 of Schedule 1 to the Income Administration Act 1953 (Cth) in respect of its claim which concerns unpaid taxation liabilities in respect of PAYG and accruing general interest charges (GIC). The defendant submits that an amended return has been filed and accepted by the ATO, but the ATO has not yet remitted the GIC in the sum of $54,469.71. The defendant submits that the appointment of a receiver and manager to the Company is not required for the protection or preservation of property for the benefit of the ATO as a creditor because the ATO is able to recover personally from Ms Guerin for GIC as she was the director of the Company, and her personal obligations continue to apply: citing Taxation Administration Act 1953 (Cth), Sub-Division 16-B and Division 268 of Schedule 1.

48    The defendant submits that, prima facie, while one of the liquidators, Mr Rohrt, may not have believed Ms Guerin when she said she had supplied to the liquidators all of the Company’s books and records, even following the liquidators executing the Warrant to retrieve all relevant books and records, there is no evidence that anything material was discovered by Mr Rohrt. The defendant submits that this suggests that those costs do not naturally follow as part of the Company’s right to be indemnified from the assets of the Trust.

49    The defendant submits that Ms Guerin has resolved the debts claimed against the Company by Fundit Pty Ltd trading as “Banjo Loans”, TL Rentals Pty Ltd, and Prospa Pty Ltd. The defendant submits that Ms Guerin has, in dealings with the ATO, reconciled the integrated client account for the Company from $191,335.49 to $54,469.17, with the purpose of receiving full remission. The defendant has proposed that the debt claimed by the ATO be held in a controlled monies account pending the ATO determining the defendant’s internal review application.

50    The defendant submits that these matters mean that, after the second creditors’ meeting on 5 February 2020, the remaining outstanding entities claiming to be creditors of the Company were:

(1)    Adchris Pty Ltd. The defendant submits that, for the reasons referred to earlier in these reasons, if there is a debt owed to Adchris Pty Ltd, it is a debt owed to a different company, Jeanie 2 Investments Pty Ltd. The defendant submits that this position has now been confirmed by the liquidator of that company: fourth Guerin affidavit, annexure “RBG-4-A4”;

(2)    Farzim Nazari and 8 Capital Asia Pacific Pty Ltd. The defendant submits that, in respect of these entities, the liquidators’ exercise of their quasi-judicial function should have resulted in the rejection of the proof of debt, and not its acceptance at full value. The defendant provided reasonably extensive submissions as to why that position should be accepted;

(3)    MYOB Australia Pty Limited. The defendant submits that this is a claim for a debt against a different company, Jeanie 2 Investments Pty Ltd. The defendant submits that this position has now been further confirmed by the liquidator of that company: fourth Guerin affidavit, annexure “RBG-4-A4”;

(4)    an entity referred to as “ECI”. The defendant submits that, if this is a legitimate claim, it is a claim for a debt against a different company, Jeanie 2 Investments Pty Ltd. The defendant submits that this position has now been confirmed by the liquidator of that company: fourth Guerin affidavit, annexure “RBG-4-A4”;

(5)    an entity referred to in submissions as “Elevaro Group Pty Ltd” and an individual named Marlon Fraser. The defendant submits that these claims concern purported claims for costs in proceedings in the Supreme Court of New South Wales in proceedings commenced by Ms Guerin and the Company relating to fraud perpetrated by the defendants in those proceedings. The defendant submits that Elevaro Group Pty Ltd and Marlon Fraser are some, but not all, of the defendants in those proceedings. It is said that there was no costs order made in those proceedings and, as a consequence, there is no basis for costs in respect of legal services. The defendant submits that the liquidators should have rejected the proof of debt lodged by these parties;

(6)    Westpac Banking Corporation. The defendant submits that this claim for a debt relates to an account held by Jeanie 2 Investments Pty Ltd. The defendant submits that the relevant facility provided by the bank is the subject of security in the nature of a personal guarantee. The defendant submits that, if the debt is properly owed, Ms Guerin will satisfy the debt claimed; and

(7)    the National Australia Bank. The defendant submits that this claim for debt relates to an account held by Ms Guerin. The defendant submits that this facility is secured by a former director’s freehold properties. The defendant submits that, if the debt is properly owed, Ms Guerin will satisfy the debt.

51    The defendant submits that, having regard to the factual circumstances which are said to underpin the above debt claims, the correct position is that Ms Guerin is the only substantial creditor of the Company.

52    The defendant submits that the affidavit material discloses an unusual degree of disharmony, antipathy and distrust between one of the liquidators, Mr Rohrt, and Ms Guerin. The defendant submits that this matter suggests conflict, and ongoing conflict. The defendant submits that, if the Court was minded to appoint a receiver and manager to the Company and the Trust, it should not be the liquidators.

53    At the hearing of this matter on 27 April 2021, the defendant’s oral submissions focussed on the books and records which had been obtained and reviewed by the liquidators. The defendant submitted that, assuming it is legally appropriate to deploy the appointment of a receiver and manager to pursue a search for books and records, in this case, the liquidators have attended the Company’s premises and retrieved, it would seem, a good deal of electronic data. In this respect, the defendant referred to the liquidators’ seizure of books and records pursuant to the Warrant. The defendant submits that there is no evidence that the liquidators have in fact reviewed that data. The defendant submitted that the liquidators should complete a review of that data, before they are appointed as receiver and manager for the purpose of retrieving and reviewing further books and records of the Company or the Trust. The defendant submits that, as to the books and records of the Company or the Trust, the liquidators have not established how they would gain something which is additional to the books and records already seized as part of the Warrant process. The defendant submits that, having retrieved books and records in the Warrant process, the liquidators have the Company’s books and records and the liquidators have not said why those books and records are deficient or what further information they need.

The liquidators’ reply submissions

54    The liquidators submit that, as to the books and records of the Trust, the Warrant authorised the seizure or books and records which related to the Company’s role as the former trustee of the Trust, but only to the extent that such records were “created by midnight on 19 December 2019”. The liquidators submit that the relevant Warrant did not authorise the seizure of books and records relating to the Trust that were created after that date.

55    The liquidators submit that they are seeking to preserve the property of the Trust, which includes property that came into existence after 19 December 2019. The liquidators submit that the defendant has continued to operate the Business as trustee of the Trust. The liquidators submit that they do not have documents as to the operation of the Business by the defendant (in its capacity as trustee of the Trust) after 19 December 2019 (because the Warrant did not authorise the collection of any such documents). The liquidators submit that they have no way of knowing, after 19 December 2019, what the assets of the Trust are or whether they have been, or are at risk of being, dissipated.

56    The liquidators also submit that, from the records seized under the Warrant, the liquidators are aware that, on or around 5 November 2019, the Company moved to using Xero accounting software instead of MYOB accounting software. The liquidators submit that they have none of the Xero accounting records.

57    The liquidators submit that, in order to preserve the assets of the Trust for the Company’s lien, the first step will be to ascertain what the assets of the Trust are (using the Xero records), including the nature and scope of those assets after 19 December 2019, being the date when the defendant was appointed as trustee of the Trust.

CONSIDERATION

58    I turn to consider the parties’ submissions. First, I set out some relevant principles. Second, I set out some facts which emerge from the affidavits filed by the parties. Third, I apply those principles to the relevant facts.

Principles

59    The relevant principles as to the appointment of a receiver and manager can be summarised as follows.

60    In Hosking, Gleeson J summarised the relevant principles at [17]-[22]. That summary included the following.

61    The general ground upon which the Court appoints a receiver is the protection or preservation of property for the benefit of persons who have an interest in it: QBE Insurance (Australia) Ltd v WA Metal Recycling Pty Ltd, in the matter of WA Metal Recycling Pty Ltd (in Liq) [2016] FCA 238 (QBE Insurance) at [13], citing Sapphire (SA) Pty Ltd v Ewens Glen Pty Ltd [2011] FCA 600 (Sapphire) at [15]. In QBE Insurance, Farrell J stated at [13]:

Section 57(1) of the [Federal Court of Australia Act 1976 (Cth)] empowers the Court to appoint a receiver on such terms and conditions as the Court thinks fit in any case in which it appears to the Court to be just or convenient to do so. This power is not confined to a closed class of circumstances. Ultimately, the general ground upon which the Court appoints a receiver is the protection or preservation of property for the benefit of persons who have an interest in it …

(Citations omitted.)

62    In Re Stansfield, Brereton J stated at [10] that, “where the trustee is removed and replaced, the outgoing trustee retains a right of indemnity from the trust assets, secured by an equitable charge over them, for its liabilities incurred by reason of acting as trustee”. As authority for that proposition, Brereton J cited (among other authorities) Chief Commissioner of Stamp Duties for New South Wales v Buckle (1998) 192 CLR 226 (Buckle) at 246. In Buckle, Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ stated at 245-246:

In Worrall v Harford, Lord Eldon LC said:

“It is in the nature of the office of a trustee, whether expressed in the instrument, or not, that the trust property shall reimburse him all the charges and expences [sic] incurred in the execution of the trust.”

The entitlement of a trustee who has borrowed moneys for application to trust purposes has been described as follows:

“Where the trustee acting within his powers makes a contract with a third person in the course of the administration of the trust, although the trustee is ordinarily personally liable to the third person on the contract, he is entitled to indemnity out of the trust estate. If he has discharged the liability out of his individual property, he is entitled to reimbursement; if he has not discharged it, he is entitled to apply the trust property in discharging it, that is, he is entitled to exoneration.”

…

The entitlement to reimbursement and exoneration was identified by Lindley LJ as “the price paid by cestuis que trust for the gratuitous and onerous services of trustees”. The right of the trustee has been described as a first charge upon the assets vested in the trustee, as one upon the “trust assets”, and as conferring upon the trustee an “interest in the trust property [which] amounts to a proprietary interest”.

(Citations omitted.)

63    Reference can also be made to Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth [2019] HCA 20; 368 ALR 390, per Kiefel CJ, Keane and Edelman JJ at [29]-[30].

64    In Jones (Liquidator) v Matrix Partners Pty Ltd, in the matter of Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40; 260 FCR 310, Allsop CJ stated at [48]:

The right of the trustee to reach into the trust assets is not a personal right devoid of connection with the purposes and working of the trust; it inheres in, and arises out of, the trust relationship that exists for a purpose – to pay the creditors and thus to exonerate the trustee. It is without doubt a right of the trustee (and in that sense personal), but one that is constrained in its content by its purpose – the payment of trust creditors.

65    Chief Justice Allsop also stated at [79]:

The right of exoneration and the lien in its support are property of the company which is the trustee. One need go no further than [Octavo Investments Pty Ltd v Knight [1979] HCA 61; 144 CLR 360] for that proposition. The creditors are not beneficiaries of a trust in which the right of exoneration is held on trust for them. It is the property of the trustee. But that does not mean that it is a proprietary interest unattended by inhering equitable obligation. Its nature and character are that it is exercisable only to pay trust creditors.

66    A trustee’s right of indemnity continues to exist even after the company has been removed from its role as trustee: Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677 at [18]-[27] per Gordon J; and Pleash, in the matter of Suncoast Restoration Pty Ltd (in liq) [2013] FCA 355; 211 FCR 203 at [27(c)].

67    It is well-established that a “receiver and manager can be appointed over trust property to secure the trustee’s right of indemnity out of the assets of the trust”: SMP Consolidated Pty Ltd (in liquidation) v Posmot Pty Limited [2014] FCA 1382 at [7] and the authorities cited there.

68    This Court has exercised its power under s 57(1) of the Federal Court of Australia Act 1976 (Cth) for the purpose of appointing a liquidator of a former trustee company as receiver and manager of the trust, for example, in QBE Insurance and in Kite v Mooney, in the matter of Mooney’s Contractors Pty Ltd (in liq) [2016] FCA 886. In this respect, in Carrello, in the matter of Gembrook Investments Pty Ltd (in liq) [2019] FCA 1143, Colvin J stated at [21]:

… recent decisions by judges of this court [have been] to the effect that the appropriate course for a liquidator to take when seeking to sell assets of a trust in the exercise of the trustee’s right to indemnity is for the liquidator to apply to be appointed as a receiver to realise the assets of a trust in the exercise of a lien or charge securing a trustee’s right of indemnity: Matrix Partners at [44] (Allsop CJ, Farrell J agreeing); Amirbeaggi, in the matter of Simpkiss Pty Ltd (in liq) [2018] FCA 2121 (Markovic J); Taylor (Liquidator) v CJ & KL Bond Super Pty Ltd (Trustee), in the matter of CJ & KL Bond Pty Ltd (in liq) [2018] FCA 1430 (White J); Cremin, in the matter of Brimson Pty Ltd (in liq) (Moshinsky J); and Deputy Commissioner of Taxation, in the matter of The Mai Family Pty Ltd (in liq) v The Mai Family Pty Ltd (in liq) [2019] FCA 865 (Besanko J).

69    As to the role of a liquidator, in Commissioner of Taxation v Iannuzzi (No 2) [2019] FCA 1818, Stewart J stated at [201]:

The liquidator’s essential functions are to identify, take possession of and realise the company’s assets, to investigate and determine the claims against the company and to apply the assets to the satisfaction of those claims in accordance with the statutory scheme of priority: Australian Securities and Investment Commission v Edge [2007] VSC 170; 211 FLR 137 at [40] per Dodds-Streeton J; Macks v Viscariello [2017] SASCFC 172; 353 ALR 201 at [771]-[772] per Lovell J, Corboy and Slattery AJJ.

Relevant facts

70    Having regard to those principles, the following factual matters should be referred to.

71    The parties tendered a number of affidavits in this proceeding. However, there was no cross-examination of any of the deponents of the affidavits or at all. As a consequence, the Court was not in a position to make findings on many of the contested factual issues which arose in the affidavit material.

72    I make the following findings in respect of the relevant matters set out in the parties’ affidavits.

73    On 11 May 2012, the Company was incorporated. Ms Guerin was appointed, and remains, the Company’s sole director and secretary. Ms Guerin is also the sole shareholder, holding 1,200 ordinary shares.

74    On or about 2 July 2012, the Trust was established. It is a discretionary trust. The Company was appointed as trustee of the Trust. Clause 6 of the Trust Deed states that, subject to certain exceptions, “the Trustee is entitled to be fully indemnified out of the Trust Fund for all liabilities it incurs as trustee of the Trust”.

75    On 19 December 2019, it at least appears that the Company was removed as the trustee of the Trust and the defendant was appointed as trustee of the Trust. There is a dispute between the parties as to the validity of that appointment. Resolving that dispute is currently not part of this proceeding. The Variation Deed dated 19 December 2019 purported to appoint the defendant as trustee of the Trust in place of the Company. That deed was between the Company (being the “Ceasing Trustee”) and the defendant (being the “New Trustee”). Recital D of that deed states that “[t]he parties wish to implement a change of trustee whereby the Ceasing Trustee ceases to be a trustee of the Fund and the New Trustee becomes trustee of the Fund”.

76    Mr Stephen Dixon and Mr Richard Rohrt were appointed as joint and several administrators of the Company on 19 December 2019 pursuant to s 436C of the Corporations Act. Funditwas the secured creditor that appointed the administrators.

77    On 28 January 2020, one of the then administrators sent a report to the creditors of the Company.

78    On 5 February 2020, the administrators convened a meeting of the creditors of the Company pursuant to s 439A of the Corporations Act. On that day, the creditors resolved that the Company should be wound up, and Mr Dixon and Mr Rohrt were appointed joint and several liquidators.

79    It is apparent that Ms Guerin has personally taken steps to seek to resolve or pay certain claims made against the Company by creditors or purported creditors. It is also apparent that Ms Guerin does not accept that some purported creditors’ claims against the Company have a proper basis or will be able to be established.

80    It seems to be agreed between the parties that, at a minimum, the ATO and Ms Guerin are creditors of the Company.

81    There are various disputes between Ms Guerin and the liquidators as to the persons who could or might be legitimately categorised as creditors of the Company. It is apparent that Ms Guerin has taken various steps to seek to repay creditors that Ms Guerin accepts are owed money by the Company, but those creditors are a subset of the list of persons who have lodged proofs of debt with the liquidators.

82    It is apparent that Mr Rohrt does not have a full account of the books and records of the Trust. This is because, while the liquidators have retrieved certain “MYOB” accounting records from the Company, they have not retrieved certain “Xero Accounting Records”. Mr Rohrt deposes that this set of accounting records is the third version of accounting software used by the Company and the Trust. During the execution of the Warrant, Ms Helen Forster of the liquidators’ office identified correspondence titled “Acknowledgement and Release – Transfer of Xero Practice” between the Company and Xero. This correspondence was dated 5 November 2019, being six weeks before the appointment of the administrators to the Company. Mr Rohrt also deposes in the fourth Rohrt affidavit that, during the execution of the Warrant and the downloading of information at the premises conducted by an IT expert, a “Xero accounting file” was located which seemed to contain records relevant to the Company. Ms Guerin and her colleague, Mr Sai Waran, confirmed that they had moved to a cloud-based Xero system and were no longer using the MYOB software. The liquidators do not have these Xero accounting records.

Application to the facts of this case

83    Having regard to those principles and facts, I have concluded that the liquidators should be appointed as receiver and manager of the property, assets and undertaking of the Trust. This is so for the following reasons.

84    The liquidators have been appointed as liquidators of the Company. There has been no application to bring the winding up to a halt because it was unnecessary or because the Company was, in fact, solvent. To the contrary, Ms Guerin’s affidavits establish and identify that there are outstanding debts that are owed by the Company and have been owed for some time.

85    The liquidators’ obligation is to wind up the Company for the benefit of all creditors, and that includes Ms Guerin. It is not for Ms Guerin to be the arbiter of which creditors’ claims are legitimate and should be paid. As the liquidators submitted, it is the liquidators, not Ms Guerin, that have been appointed liquidators of the Company and have statutory obligations to, among other things, investigate the operations of the Company, call in all assets, and ascertain and pay all creditors. The liquidators are not absolved of their statutory obligations by reason of Ms Guerin making payments to those that Ms Guerin believes to be legitimate creditors of the Company. In addition, even if Ms Guerin resolves all relevant creditors’ claims, Ms Guerin has not said she would not prove in the Company’s liquidation in respect of any amounts that she has paid or might pay on behalf of the Company.

86    One of the liquidators’ essential functions is to identify, take possession of and realise the Company’s assets. It is well-established that the Company has a right to be indemnified from the Trust’s assets for liabilities the Company incurred in its role as trustee of the Trust. It is also well-established that the liquidators could be appointed receiver and manager of the Trust’s property to secure the Company’s right of indemnity out of the assets of the Trust.

87    I have concluded that the liquidators should be appointed as receiver and manager of the assets and undertakings of the Trust for four reasons.

88    First, it is apparent that one of the main assets of the Trust was the income generated by the Business.

89    Second, it is apparent that the liquidators do not know the current state of the Business. While the liquidators have been provided with a good deal of data relating to the Company, I accept that there is a set of “Xero accounting records” concerning the Trust or the Business which have not been provided to the liquidators. In any event, I accept Mr Rohrt’s evidence that the liquidators are not currently in a position to accurately assess the extent of the assets of the Trust or the Business, or to secure the Company’s right of indemnification out of the Trust assets. In this respect, being appointed as a receiver and manager will enable the liquidators to obtain relevant information from third parties in order to assess these matters.

90    Third, it is apparent that the defendant has continued to act as trustee of the Trust and, in that capacity, carry on the Business. In those circumstances, it is possible for the defendant to dissipate the assets of the Business and, in doing so, imperil the Company’s right to be indemnified out of the assets of the Trust.

91    Finally, I am not satisfied that any disqualifying conflict of interest on the part of the liquidators has been established. First, there is no disqualifying conflict in the fact that the liquidators, as a receiver and manager, will, at least in part, be seeking to recover funds in order to pay the outstanding costs of the liquidation and the winding up. If there were such a conflict, then liquidators would rarely be appointed as receivers and managers of the assets and undertakings of a trust. Second, while there is some apparent disharmony between one of the liquidators, Mr Rohrt, and the director of the Company, Ms Guerin, neither Mr Rohrt nor Ms Guerin was cross-examined about those matters. As a consequence, it is not possible to make a finding either way as to whether the disharmony ensures that the liquidators should not be appointed as receiver and manager of the property, assets and undertaking of the Trust.

92    In these circumstances, it is appropriate that the liquidators be appointed receiver and manager over the property, assets and undertaking of the Trust to secure the Company’s right to be indemnified out of the assets of the Trust.

THE LIQUIDATORS’ FEES

93    However, notwithstanding that the liquidators will be appointed as receiver and manager of the property, assets and undertaking of the Trust, there remains an issue concerning the liquidators’ fees. In appointing the liquidators as receiver and manager of the assets and undertakings of the Trust, I will make an order regarding the liquidators’ fees for the following reasons.

94    Section 57(1) of the Federal Court of Australia Act 1976 (Cth) provides that the “Court may, at any stage of a proceeding on such terms and conditions as the Court thinks fit, appoint a receiver …” (emphasis added). In addition, cl 90-15(1) of Schedule 2 to the Corporations Act, being the Insolvency Practice Schedule (Corporations), provides that “[t]he Court may make such orders as it thinks fit in relation to the external administration of a company”. Clause 90-15(2)(a) provides that “[t]he Court may exercise the power under [cl 90-15(1)] … on its own initiative, during proceedings before the Court”. Clauses 90-15(3)(d) and (f) provide that, without limiting cl 90-15(1), orders under cl 90-15(1) “may include any one or more of” “an order in relation to the costs of an action (including court action) taken by the external administrator of the company” and “an order in relation to remuneration”.

95    In Lewis (liquidator), in the matter of Concrete Supply Pty Ltd (in liq) [2020] FCA 841; 145 ACSR 459, White J stated at [30]-[31]:

The principles applied by the courts in the exercise of the power under cl 90-15 are, in effect, the same as those which were applied in the exercise of the power under the former s 479(3) (in the case a court-ordered winding up) or under s 511 (in the case of a voluntary winding up) of the Act … In In the matter of Hawden Property Group Pty Ltd (in liq) (ACN 003 528 345) [2018] NSWSC 481, Gleeson JA noted at [8], that the power under cl 90-15 to “make such orders as it thinks fit in relation to the external administration of a company” (cl 90-15(1)), including “an order determining any question arising in the external administration of the company” (cl 90-15(3)(a)), is wider than s 479(3) and accommodates the determination of substantive rights. His Honour noted that the Court would not make a determination of substantive rights without affording potentially affected parties an opportunity to be heard …

The established principles indicate:

    …

(b)    the power is available to give a liquidator advice as to the proper course of action to be taken in the liquidation: [Re Bell Group Ltd (in liq); Ex parte Woodings as liquidator of The Bell Group Ltd (in liq) [2009] WASC 235] at [47]; Re MF Global Australia Ltd (in liq) [2012] NSWSC 994 at [7];

(c)    the Court may give directions that provide guidance on matters of law and the reasonableness of a contemplated exercise of discretion but will usually not do so when the subject of the directions sought relates to the making and implementation of a business or commercial decision and when there is no particular legal issue raised and no attack on the proprietary or reasonableness of the decision: Re MF Global at [7];

(d)    the Court does not interfere with or seek to second guess the liquidator’s judgment unless there is evidence of a lack of good faith, an error of law or principle, or real and substantial grounds for doubting the prudence of the liquidator’s conduct or when the Court considers that the liquidator’s decision is not a proper and reasonable one: [Re One.Tel Ltd [2014] NSWSC 457] at [36]; Re Bell at [31], [47] and [50]; [Re Octaviar Administration Pty Ltd (in liq) [2017] NSWSC 1556] at [10] …

96    In the context of an application by certain receivers for approval of remuneration, costs and expenses, in Templeton v Australian Securities and Investments Commission [2015] FCAFC 137 (Templeton), the Full Court (Besanko, Middleton and Beach JJ) stated that proportionality can be “considered in order to assess the question of reasonable remuneration”: Templeton, [30]. Their Honours stated at [30]-[34]:

… Indeed, the question of proportionality is an anterior question to consider in order to determine whether time was reasonably spent. If the relevant work plan underpinning the actual time spent and the allocation of personnel at the requisite level of seniority was disproportionate to the nature, importance and complexity of the task and the benefit to be achieved from the task, then it might be said that the time spent on the task was not time reasonably spent.

The question of proportionality is a well recognised factor in considering the question of reasonableness. As the analogue of s 425(8) and like provisions expressly state, in having “regard to whether the remuneration is reasonable”, the Court can take into account, inter alia, the quality and complexity of the work and the value and nature of any property dealt with as well as the question of time reasonably spent. Generally, an amalgam of the factors in s 425(8)(d), (e), (g) and (h) have as their unifying theme the concept of proportionality.

The question of proportionality in terms of the work done as compared with the size of the property or activity the subject of the insolvency administration or the benefit or gain to be obtained from the work is an important consideration in determining overall reasonableness …

Generally, in looking at proportionality, the value of the services rendered must be considered. We would endorse the observations of McLure JA in Conlan as liquidator of Rowena Nominees Pty Ltd (in liquidation) v Adams (2008) 65 ACSR 521 at [47] where her Honour observed:

As to the performance of a task reasonably embarked upon, the work done must be proportionate to the difficulty or importance of the task in the context in which it needs to be performed. This is what is encompassed in assessing the value of the services rendered. Using an example from the law, the time spent by an appropriately qualified and experienced practitioner in drafting a statement of claim should be proportionate to the amount in issue.

Finally, even if one was not to address proportionality as an express factor, nevertheless its absence may have forensic significance in determining reasonableness. Another way to look at proportionality can be to conclude from a lack of proportionality between the cost of the work done relative to the value of the services provided that there has been overcharging or excessive remuneration claimed (see Thackray v Gunns Plantations Ltd (2011) 85 ACSR 144 at [64] per Davies J).

(Emphasis in the original.)

97    Having regard to those matters, it should be noted that, in the fourth Guerin affidavit, Ms Guerin deposes that, on 25 November 2020, Ms Guerin’s solicitors requested the costs and disbursements incurred to date by the liquidators. The liquidators’ solicitors responded and stated that, as at 3 December 2020, the professional costs and liquidators’ costs were $540,583.04, plus an uplift fee of 25% for professional legal costs that is $52,430.97. The costs of Mills Oakley, the previous solicitor of the liquidators, had also not been rendered at that time.

98    Having reviewed that evidence, I had serious concerns about the scale of those costs. They did not appear to be proportionate to the complexity of this matter, or the amount of work that has been completed to date by the liquidators.

99    At the hearing of this proceeding, I had an exchange with counsel for the liquidators, Mr Black, which is recorded on the transcript as follows:

HIS HONOUR: …What was the amount that was owing to the secured creditor [that appointed the liquidators]?

MR BLACK: It’s in the order of 300 something thousand dollars, I think.

HIS HONOUR: And how much has your client now spent in professional fees and disbursements?

MR BLACK: It’s an amount, I think, in excess of $300,000.

HIS HONOUR: It’s in excess of 550,000, as I understand.

MR BLACK: Sorry. That’s including disbursements, your Honour.

HIS HONOUR: That’s what I said.

MR BLACK: I’m sorry, your Honour. I missed that. Yes.

HIS HONOUR: 550,000.

MR BLACK: Yes, your Honour.

HIS HONOUR: So a secured creditor, 300,000. Your client has come along and spent 550,000 in excess of that on professional fees and expenses.

MR BLACK: Yes, your Honour.

…

MR BLACK: I’m sorry, your Honour. But there’s no correlation between the amount that is owed to a secured creditor at the time of the appointment of a liquidator and then the conduct of the winding up …

HIS HONOUR: This is a very straightforward case. It beg[gars] belief that your client could have spent that amount of money.

…

MR BLACK: [The liquidators] haven’t admitted [a certain] proof and they haven’t adjudicated on any of the proofs. It was only an admission for voting purposes.

…

HIS HONOUR: So your client [has] spent $550,000 and not even adjudicated on what debts it will admit in the liquidation?

MR BLACK: No, your Honour, because we don’t have the information sufficient to be able to allow us to do that. [T]hat is the problem.

100    I note also that, at the hearing of this matter, I enquired of the liquidators’ counsel, Mr Black, as to whether I could require that the liquidators are to not charge for services unless those charges are approved by the Court. Mr Black of counsel confirmed that, if the Court was minded to make that type of order, the liquidators would have no difficulty with that course.

101    In these circumstances, I have concerns that the amount of the fees incurred to date by the liquidators is totally disproportionate to the complexity of this proceeding and the scope of work that has been completed. As a consequence, it is appropriate that there be an order that, without approval by court order, the liquidators are not to charge any fees in relation to the liquidation or administration of the Company or in relation to the liquidators’ appointment as receiver and manager over the property, assets and undertaking of the Trust.

DISPOSITION

102    For the reasons given, I will make the following orders:

(1)    Pursuant to s 57(1) of the Federal Court of Australia Act 1976 (Cth), the plaintiffs be appointed as receiver and manager over the property, assets and undertaking of The Rose Guerin and Partners Trust.

(2)    Without approval by court order, the plaintiffs are not to charge any fees in relation to the liquidation or administration of Rose Guerin and Partners Pty Ltd (in liquidation) or in relation to the plaintiffs’ appointment as receiver and manager over the property, assets and undertaking of The Rose Guerin and Partners Trust.

(3)    The defendant will pay the plaintiffs’ costs of the application, to be taxed if not agreed.

(4)    There is liberty to apply.

Associate:

Dated:    24 May 2021