Federal Court of Australia
Porter, in the matter of Slater (No 3) [2021] FCA 688
ORDERS
First Applicant RICHARD MORETTI Second Applicant | ||
AND: | ||
DATE OF ORDER: |
THE COURT DECLARES THAT:
1. Pursuant to s 6 of the Cross Border Insolvency Act 2008 (Cth) (CBI Act) and Art 21(1)(g) of the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law (Model Law), the applicants are entitled to be paid from funds under their control as local representatives of Julie Palmer as trustee of the estate of David Ross Slater (Trustee), a bankrupt, the sum of $128,221.44 in payment of the costs, charges and expenses of the administration of their appointment, such sum to be paid as a priority payment in accordance with s 109 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) as if the funds recovered by the applicants were assets of a regulated debtor’s estate under the Bankruptcy Act.
2. Pursuant to s 6 of the CBI Act and Art 21(1)(g) of the Model Law, the applicants are justified in paying to Michael Wilson & Partners, Limited (MWP) the sum of $18,815 as a priority payment in accordance with s 109(10) of the Bankruptcy Act as if the funds recovered by the applicants were assets of a regulated debtor’s estate under the Bankruptcy Act.
THE COURT ORDERS THAT:
3. The costs payable by MWP to the applicants pursuant to Order 3 of the Orders made on 16 October 2020 are payable on a lump sum basis in the amount of $9,125 excluding GST.
4. MWP pay the applicants’ costs of this proceeding on a lump sum basis from 7 May 2020 onwards in the amount of $39,568.05 excluding GST.
5. The amount payable by the applicants to MWP pursuant to Order 2 above be set off against the costs awarded on a lump sum basis in favour of the applicants pursuant to Orders 3 and 4 above.
6. The applicants be discharged from their appointment as the local representatives of the Trustee.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MARKOVIC J
1 On 16 August 2016 this Court made orders pursuant to s 6 of the Cross Border Insolvency Act 2008 (Cth) (CBI Act), Art 17(1) of the Model Law on Cross Border Insolvency of the United Nations Commission on International Trade Law (Model Law) and r 14.03 of the Federal Court (Bankruptcy) Rules 2005 (Cth) recognising the administration of the bankrupt estate of David Ross Slater by Julie Palmer as trustee (Trustee) pursuant to proceeding 0215 of 2015 in the Croydon County Court in the United Kingdom (UK) as a foreign proceeding within the meaning of Art 2(a) of the Model Law within Australia and as a foreign main proceeding within the meaning of Art 2(c) and an order pursuant to s 6 of the CBI Act and Art 21(1)(e) of the Model Law entrusting the administration and realisation of all of Mr Slater’s assets located in Australia to the applicants in this proceeding, Jason Lloyd Porter and Richard Moretti who at the time were both members of the firm known as SV Partners, as the local representatives (Australian Representatives) of the Trustee.
2 Mr Moretti is no longer a member of SV Partners but continues to be one of the Australian Representatives so as to avoid the time and costs associated with his removal or replacement. He is now a member of the firm known as Revive Financial. However, because Mr Moretti has remained a joint appointee, Mr Porter has kept him informed of developments and Messrs Porter and Moretti have together made decisions.
3 By amended application filed on 13 August 2020 the Australian Representatives seek orders:
(1) pursuant to s 6 of the CBI Act and Art 21(1)(g) of the Model Law or, alternatively, the general law, that they are:
(a) entitled to payment of $128,221.44 from the funds under their control as Australian Representatives for their costs, charges and expenses of the administration of their appointment and that such amount be paid as a priority payment in accordance with s 109 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) as if the funds recovered by them were assets of a regulated debtor’s estate under that Act; and
(b) justified in paying to Michael Wilson & Partners, Limited (MWP) $18,815 as a priority payment in accordance with s 109(10) of the Bankruptcy Act as if the funds were assets of a regulated debtor’s estate under that Act;
(2) that they be discharged from their appointment;
(3) in relation to their costs of this application; and
(4) for their release and discharge from all liability in respect of any act and/or default made by them in the administration of the trusteeship of Mr Slater’s bankrupt estate.
History of the Proceeding
4 This proceeding has a somewhat lengthy history.
5 It was commenced on 15 April 2020 by the filing of an originating application and an affidavit sworn by Mr Porter on 8 April 2020 (First Porter Affidavit). On 7 May 2020, when it first came before me for case management, Effective Funds Management Pty Ltd (EFM) and MWP each sought, and were granted, leave pursuant to s 2.03 of the Federal Court (Bankruptcy) Rules 2016 (Cth) (Bankruptcy Rules) to be heard in the proceeding.
6 Since that time MWP, which is a creditor of Mr Slater’s estate and was the petitioning creditor in the proceeding before the County Court at Croydon, has been represented in the proceeding by Michael Earl Wilson, a solicitor of the Supreme Courts of New South Wales and Victoria and of the Supreme Court of England and Wales and a director and head of MWP’s branch located in Almaty, Kazakhstan and of its representative office located in Baku, Azerbaijan. Mr Wilson gives evidence of his career as a solicitor, commencing in 1982. It is not necessary to set it out here.
7 At the case management hearing on 7 May 2020 orders were made including orders that each of EFM and MWP file and serve any interlocutory applications setting out the relief they seek and any affidavits in support of any such application or in response to the relief sought by the Australian Representatives by 28 May 2020, for the exchange of submissions and listing the proceeding for hearing on 21 July 2020.
8 EFM subsequently informed the Court that it did not intend to participate in the proceeding.
9 On 20 July 2020 MWP filed an application in the proceeding (MWP Application) in which it sought the following relief (as written):
1.2 that the Local Representative, and the Trustee, must forthwith reimburse and pay back to MWP, with interest, all monies advanced by MWP and all fees, costs and expenses howsoever, suffered, incurred, paid and/or financed by MWP, whether directly or indirectly, as to both the Property in particular, and the Estate in general, and howsoever arising in relation to this bankruptcy, in accordance with the prior agreements, arrangements and understandings reached and in place between MWP, the Trustee and the Local Representatives, and all others involved;
1.3 that, acting in conjunction with MWP as the principal creditor, the Local Representatives and the Trustee must promptly take steps to deal with EFM, and seek to make them liable for all delays, fees and costs, suffered and incurred, including in damages for the reduced sale value of, and resulting net proceeds realised from the Property;
1.4 that, acting in conjunction with MWP as the principal creditor, the Local Representatives and the Trustee must exercise, use and apply their statutory powers so as to identify, locate, secure, gather and bring in, and trace into all of the other assets of the Estate, and promptly take steps to obtain ownership, possession, custody and control of the same, realise and bring all such to account and to cash;
1.5 that, acting in conjunction with MWP as the principal creditor, the Local Representatives and the Trustee will co-operate with MWP in support of its appeal before the Court of Appeal of the NSW Supreme Court, comprising Appeal Nos. 2019/103863 & 2019/170998, and also in the related substantive proceedings No. 2016/34380, when the appeal is successful, and also in relation to the first set of proceedings out of which the US$14m judgment debts arose;
1.6 the Local Representative, together with the Trustee must adjudicate upon and certify all of MWP's judgment debts, including the costs relating to the reciprocal recognition and bankruptcy in England and Australia, whether presently certified and uncertified;
1.7 the Local Representatives, together with the Trustee must promptly disclose and provide to MWP copies of all correspondence and documents passing between them and the Bankrupt, Ms D. M. Lighezollo, EFM, Effective Recoveries, Rothwells, Ms Rothwell, Mr McKay, Mr Emmott and/or others on their behalf, and whether directly or indirectly;
1.8 the Local Representatives, together with the Trustee must promptly disclose and provide to MWP copies of all engagement letters, invoices, fee notes, contracts and related correspondence with the various consultants and agents they have used as to their agreed terms and conditions giving rise to their fees and costs, including those of Mr Golledge, and which are not fully and properly disclosed in JLP-1;
1.9 the fees and costs of the Local Representatives in seeking to and registering a Caveat over the Property, in seeking to register title in their own name, in wrongly causing the entire freezing order of MWP to be entirely cancelled and lifted, and in subsequently rectifying such errors, shall be disallowed as costs of the Estate;
1.10 the assesment and taxation of all of the fees and costs of the Local Representatives, as well as those also of MWP itself, in accordance with Division 40.2 of the Federal Court Rules 2011; and
1.11 that the Local Representatives, together with the Trustee, should not be discharged and released, but instead must continue in office and fulfil all of their duties, liabilities and obligations.
MWP also filed an affidavit sworn by Mr Wilson on 14 July 2020 (First Wilson Affidavit) which it intended to rely on in support of the MWP Application and in response to the relief sought by the Australian Representatives.
10 A number of things arose when the matter was listed for hearing on 21 July 2020.
11 First, MWP sought an adjournment of the hearing to permit it to address the Australian Representatives’ submissions in reply and a second affidavit sworn by one of the Australian Representatives, Mr Porter, on 20 July 2020 (Second Porter Affidavit).
12 Secondly, the Australian Representatives opposed MWP’s reliance on the MWP Application, given its form and the nature of the relief sought. After hearing argument, I refused MWP’s application to adjourn the hearing and refused MWP leave to rely on the MWP Application in the form in which it had been filed. As to the latter I accepted that, in order to preserve the rights of MWP to bring any application in the nature of the MWP Application, any ruling on the Australian Representatives’ application to be released would have to be deferred to another day or, subject to submissions made, that prayer for relief would have to be refused: see Porter, in the matter of Slater [2020] FCA 1133 (Porter (No 1)).
13 Thirdly, after those applications were determined, MWP successfully applied to cross-examine Mr Porter over the opposition of the Australian Representatives. That necessitated an adjournment of the hearing to 25 August 2020 to enable the cross-examination to proceed and to conclude oral submissions.
14 On 25 August 2020, when the proceeding was next listed for hearing, MWP sought an adjournment because it intended to brief counsel to appear for it but had not, as at that time, been able to do so. Over objection, I allowed the adjournment and noted that, in the event that MWP intended to make any further application for an adjournment, it was to be supported by an affidavit setting out the evidence upon which it relied.
15 The proceeding was next listed for hearing on 16 October 2020. On 15 October 2020 MWP forwarded an affidavit sworn by Mr Wilson on 15 October 2020 (Second Wilson Affidavit) and an interim application to the Court. In the latter MWP sought an order that the proceeding be stayed pending the outcome of a number of proceedings which were at the time before the New South Wales Court of Appeal (Court of Appeal) and Supreme Court of the Australian Capital Territory (ACT Supreme Court) or, as contended at the hearing, in the alternative that the proceeding be adjourned because counsel retained to appear for it was unavailable on that day (Second MWP Application). The interim application was dismissed and the application for an adjournment refused with MWP to pay the costs of those applications (October Costs Order): see Porter, in the matter of Slater (No 2) [2020] FCA 1547. But, as the day was consumed by the hearing of the Second MWP Application, the continuation of the hearing had to be adjourned to 19 October 2020.
16 On 19 October 2020 the hearing continued with the cross-examination of Mr Porter and was subsequently adjourned for submissions to 26 October 2020.
The Evidence
17 The Australian Representatives relied on the First Porter Affidavit, the Second Porter Affidavit and affidavits sworn by Kirsten Pearl Farmer, the solicitor for the Australian Representatives, on 6 May 2020, 12 August 2020 and 16 October 2020.
18 MWP relied on the First Wilson Affidavit, the Second Wilson Affidavit and an affidavit sworn by Mr Wilson on 25 October 2020 (Third Wilson Affidavit), the exhibits thereto and two “tender bundles”, the first comprising 20 pages and the second comprising 244 pages. The affidavits relied on by MWP were for the most part not in admissible form, included material which could only be taken to be read as a submission, were in parts argumentative and included evidence which was either not relevant or, at best, peripherally relevant to the matters in issue. Objections made by the Australian Representatives to the First Wilson Affidavit were considered and the subject of rulings. However, in the interests of efficiency in the conduct of the hearing, the Australian Representatives did not press specific objections to the Second Wilson Affidavit and the Third Wilson Affidavit. Those affidavits were read and admitted into evidence subject to submissions to be made as to the weight to be afforded to their content.
19 I turn to set out a summary of the facts insofar as they are relevant to the relief sought by the Australian Representatives and the objections raised by MWP.
Proceedings brought by MWP against Mr Slater
20 Mr Wilson gives detailed evidence about the history of proceedings brought by MWP against Mr Slater, Robert Colin Nicholls and a number of companies associated with them initially in proceeding no 50151 of 2006 (NSW SC Proceeding) in the Supreme Court of New South Wales (NSW Supreme Court). That evidence is difficult to follow but the nature of the NSW SC Proceeding is summarised in the reasons of the Court of Appeal in Nicholls v Michael Wilson & Partners Ltd [2012] NSWCA 383. In summary MWP alleged that Messrs Slater and Nicholls were employees of MWP until early 2006. MWP alleged that they had breached their contractual and equitable duties owed to MWP, conspired with another member of MWP, Mr Emmott, to divert clients and business opportunities from MWP to their own companies, induced Mr Emmott to breach his contractual obligations owed to MWP and knowingly assisted Mr Emmott to breach his fiduciary duties owed to MWP.
21 The trial judge dismissed the NSW SC Proceeding against one defendant but upheld MWP’s claims against Messrs Nicholls and Slater and three companies associated with them, granted declaratory relief and made orders that the defendants pay compensation and damages to MWP. The proceedings thereafter had a lengthy history: there was an appeal to the Court of Appeal, an application for special leave to appeal and an appeal to the High Court of Australia (High Court) and, upon remitter by the High Court, a further hearing before the Court of Appeal. Ultimately the Court of Appeal allowed the appeal in part as a result of which the amount determined to be paid as damages by, among others, Mr Slater changed.
Mr Slater’s bankruptcy and recovery of assets in Australia
22 On 22 December 2015, on the application of MWP as petitioning creditor, the County Court at Croydon in the United Kingdom (UK) ordered that Mr Slater be adjudged a bankrupt. By operation of s 306 of the Insolvency Act 1986 (UK) Mr Slater’s property automatically vested in the official receiver. On 9 February 2016 the Trustee was appointed as trustee of Mr Slater’s bankrupt estate. From that time Mr Slater’s property vested in the Trustee.
23 At the time that Mr Slater became a bankrupt he was the registered proprietor of a property situated at 41 Ainslie Crescent, Ainslie in the Australian Capital Territory (ACT Property). The ACT Property was subject to a first registered mortgage in favour of Westpac Banking Corporation (Westpac) registered on 26 July 2005, a caveat lodged by EFM which was registered on 20 July 2012 (EFM caveat) and a “Court Order – Freezing Order Refer Instrument” (MWP Freezing Order) lodged by MWP which was registered on 5 September 2012.
24 The MWP Freezing Order was made in the NSW SC Proceeding on 9 October 2006. As against Mr Slater, the order relevantly prevented Mr Slater from removing from Australia or in any way disposing of, dealing with or diminishing his assets in Australia up to a value of $4,158,625. The MWP Freezing Order was extended and varied by the NSW Supreme Court on 20 October 2006, 27 October 2006, 20 November 2006, 28 May 2008, 10 February 2010 and 25 March 2011.
25 A letter dated 23 March 2016 from the Trustee to MWP included:
I confirm that any funding provided by your firm for remedial works on any properties or investigations expenses will be paid from future asset realisations prior to distributing funds to unsecured creditors.
We will also seek your approval of all costs before agreeing to any expenditure. As you are aware we are currently asking you to fund the following:
1. Our investigation fee of £10,000 plus VAT as agreed prior to us accepting the appointment.
2. Remedial works on [the ACT Property] of $7,833.00 including GST.
26 At the time of the appointment of the Australian Representatives the only real property that they had identified which was held by Mr Slater was the ACT Property.
27 The Australian Representatives lodged a caveat on the title of the ACT Property which, as Mr Porter explained in cross-examination, was a way of giving notice that the Australian Representatives had control of the property and to protect the interests of the bankrupt estate.
28 On 17 March 2017, on the application of MWP, the MWP Freezing Order was varied by the NSW Supreme Court when it made the following orders:
That the operation of the Freezing Orders made on the application of the Plaintiff, granted initially by Palmer J in this Court on 9 October 2006, extended by Einstein J on 28 May 2008, and continued by the Court of Appeal on 31 May 2013, should be varied, discharged or suspended, to the extent, and only to that extent, as is necessary, to enable Julie Anne Palmer of Messrs Begbies Traynor (Central) LLP of 65 St Edmunds, Church Road, Salisbury, SP1 1EF, England, United Kingdom, the Trustee of the Bankrupt Estate (Trustee) of David Ross Slater (Mr Slater):
(a) to be become the registered proprietor of the property owned by Mr Slater located in the Australian Capital Territory (ACT), known by the title particulars of Block 13, Section 97 in the Division of Ainslie, and recorded in Volume 207, Folio 15 of the Land Register for the ACT (Mr Slater's Property), held by the Registrar of Titles for the ACT;
(b) to deal with, including dealing with any interests (including contesting any interests) registered against, Mr Slater's Property; and ·
(c) otherwise dispose of Mr Slater's Property to the extent permitted by and in accordance with her obligations under the Bankruptcy Act 1966 (Commonwealth), and deal with the proceeds of the sale of that property, as permitted by that (Bankruptcy) Act.
29 On 20 March 2017 the Australian Representatives were registered on the title of the ACT Property. Relevantly in that regard:
(1) on 2 September 2016 Mr Wilson sent an email to Mr Hook of Begbies Traynor, the Trustee and Mr Moretti, among others, in which he raised issues about the EFM caveat including:
Confirmation that if we choose to so fund, which we have no obligation to do, you will file the caveat lapsing form and follow and support our strategy, with MWP taking the leading role. Your email omits this threshold issue. The evidence is clearly that EFM is clearly a device enabling Slater to act albeit in bankruptcy, just as with the PJT Group and the FOF Group, and in reality to enable the secret and hidden monies and assets of the partnership to be recycled and used in a disguised form.
(2) Mr Hook responded to Mr Wilson’s email on 5 September 2016 noting in relation to the EFM caveat that the Trustee would review advice to be provided by Boettcher Law and proceed in accordance with that advice, in doing so the Trustee would provide those lawyers with the information provided by MWP and the Trustee would release the advice received provided Boettcher Law consented to that course;
(3) on 6 September 2016 Mr Moretti sent an email to Mr Hook and Sally Nash, who I understand at the time was the solicitor for the Trustee and the Australian Representatives, which included:
Andrew please confirm in relation to the validity of EFM’s claim that the advice sought is actually from Sally Nash rather than Boettcher Law. Boettcher will act in terms of the sale of the property only. In this regard, Boettcher have advised the property can be transmitted to Mr Porter and myself as the representatives. They have provided me with the form to be executed. This will register Mr Porter and myself on title of the property in place of the bankrupt. Please confirm you are happy for us to proceed.
(4) on 12 September 2016 Mr Hook responded to Mr Moretti’s email instructing him to file the form registering the Australian Representatives on title of the ACT Property in place of Mr Slater and requesting a copy of the form;
(5) on 12 September 2016 Mr Moretti responded to Mr Hook’s email noting his comments, providing a copy of the form as requested and informing Mr Hook that he understood that Boettcher Law would file the form on the same day;
(6) on 3 October 2016 Mr Hook sent an email to Mr Moretti, among others, inquiring whether the title to the ACT Property had been changed and, if so, to provide a copy of the revised title documents; and
(7) on 4 October 2016 Mr Moretti informed Mr Hook that Boettcher Law was chasing the mortgagee, Westpac, to release the title documents so that the title could be changed and that, once this had occurred, he would provide a copy of the new title details.
30 In cross-examination it was put to Mr Porter that the Australian Representatives’ real intention in lodging a caveat and going on title of the ACT Property was to secure and increase their fees. Mr Porter denied that this was so. I accept Mr Porter’s evidence. It is clear, based on the evidence, that the caveat was lodged to protect the interest of the bankrupt estate and that the Australian Representatives were registered on the title of the property with the knowledge and consent of the Trustee and as permitted by the orders made in this Court on 16 August 2016.
31 Despite the Trustee’s agreement to the Australian Representatives being registered on the title of the ACT Property, she sought to have the register rectified by removing the Australian Representatives from the title of the ACT Property and having the property registered in her name. The Trustee wrote to the Registrar of Land Titles in the ACT (Registrar) requesting the change and sought to have the Australian Representatives write a letter to the Registrar to the same effect, which they refused to do as they did not agree with the contents of the draft letter provided to them for that purpose. In cross-examination Mr Porter explained that they informed the Trustee that, given the operation of the CBI Act, the ACT Property could not be sold by her.
32 On 11 October 2017 the Trustee commenced a proceeding in the ACT Supreme Court seeking an order under s 161 of the Land Titles Act 1925 (ACT) requiring and directing the Registrar-General of Land Titles to remove the Australian Representatives as the registered proprietors of the ACT Property (ACT SC Proceeding). The Australian Representatives, who were named as the second and third defendant, filed a submitting appearance. On 22 December 2017 the ACT Supreme Court dismissed the ACT SC Proceeding. In reasons for decision delivered on that day at [37]-[39] and [42] Mossop J said:
[37] In summary, a foreign bankruptcy may be given effect in relation to immovable property within Australia by a Court making orders vesting the property in the foreign trustee or assignee, appointing the foreign trustee or assignee (or someone else) as receiver of those properties for the purposes of their sale or by methods such as those adopted in Re Greenway and Re Fogarty.
[38] Therefore in the present case, the position is that Australian law does not automatically recognise the title of the plaintiff to the real property of the bankrupt within Australia. That is notwithstanding that under the Insolvency Act 1986 (UK) property vests automatically without any requirement for registration: Insolvency Act, s 306 and extends to property outside the jurisdiction: Insolvency Act, s 436; Singh v Offıcial Receiver [1997] BPIR 530 at 531. As a consequence, in the absence of orders of the Court under s 29 of the Bankruptcy Act or, as here, orders made under the CBI Act, the plaintiff, as foreign trustee, has no immediate entitlement to have the property registered in her name or capacity to take control of it for the purposes of the bankruptcy. Section 132 of the Land Titles Act operates (and its predecessors referred to at [14] have operated) within the context of the rules of private international law and hence does not compel her registration as a proprietor.
[39] The submissions of the plaintiff proceeded on the basis that the recognition, under the CBI Act, of the foreign proceedings gave rise to an entitlement on the plaintiff’s part to be registered as the proprietor of the Ainslie property. The provisions of the Model Law are inconsistent with the submission made on behalf of the plaintiff. Some of the provisions of the Model Law give powers directly to the foreign representative that are not the consequence of a specific Court order. Others are only expressed to arise when the Federal Court has so ordered. The effect of the CBI Act and Model Law is to give to the foreign representative the powers expressly contemplated by the Act. The scheme of the CBI Act and Model Law is not such as to give expressly, or to imply, any general power of administration of assets within Australia. Rather, the specific consequences of recognition of foreign proceedings are spelt out. Those consequences vary as between main proceedings and non-main proceedings. They are a mixture of consequences which arise automatically and consequences which only arise upon the making of orders by the Federal Court. I do not accept the plaintiff’s submission that the combined operation of ss 6, 8 and 11 of the CBI Act is “to cloak [the plaintiff] with all the rights that a trustee would have who has been appointed under the act Bankruptcy Act, to administer the bankrupt estate in Australia”. Rather, except where stated to arise automatically as a result of recognition of the foreign main proceeding, the powers of the foreign representative are those which are granted under Art 21 or those that arise in accordance with the principles of private international law.
…
[42] As a consequence I accept the submission made on behalf of the Registrar-General that as a result of the terms of O 3 made by Gleeson J, the “administration and realisation” of the assets of Mr Slater in Australia was entrusted to the Mr Porter and Mr Moretti. This was expressly an order under Art 21(1)(e). That paragraph permits a binary choice, namely to entrust the administration or realisation of the debtor’s assets to either the foreign representative or “another person designated by the Court”. The plaintiff, is not the person referred to in the order. That situation, of course, arises from the fact that those were the terms of the orders that the plaintiff sought from the Federal Court. As a consequence, Gleeson J’s orders did not empower the plaintiff to become the registered proprietor of the Ainslie property. She does not have, by reason of the recognition of the foreign proceedings, any relevant general power under the CBI Act and Model Law that arises in the absence of a Court order. The rules of private international law which provide the context in which the CBI Act and the Land Titles Act operate do not give automatic effect to the law of the United Kingdom so as to permit the plaintiff in the absence of an order under s 29 of the Bankruptcy Act or under the CBI Act to become the registered proprietor of the Ainslie property.
See Palmer v Registrar-General of Land Titles of the Australian Capital Territory (2017) 338 FLR 262 (Palmer v Registrar General).
33 Mr Porter did not accept that by registering the title of the ACT Property in the Australian Representatives’ names, they caused delay and extra cost. Mr Porter noted that the Australian Representatives filed a submitting appearance in the ACT SC Proceeding.
34 It was also put to Mr Porter in cross-examination that, by registering the title of the ACT Property in their names, the Australian Representatives had breached the MWP Freezing Order because they were acting as local representatives of Mr Slater and assisted Mr Slater in a breach of the order. Mr Porter did not accept that there had been any breach of the MWP Freezing Order. That is the case. The MWP Freezing Order was relevantly directed to and prevented Mr Slater from dealing with his assets. The penal notice included in the MWP Freezing Order stated:
IF YOU:
A. REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR
B. DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.
Evidently the MWP Freezing Order insofar as it is directed to Mr Slater notifies him that he will be liable to punishment if he does not comply with it and specifies that any person who knows of the order and does anything which helps or permits Mr Slater to breach its terms may be similarly punished. The Australian Representatives did not, by becoming registered on the title of the ACT Property, help or permit Mr Slater to breach the terms of the MWP Freezing Order. Contrary to Mr Wilson’s suggestion made in the course of cross-examination, the Australian Representatives were not in contempt of those orders. They acted in their capacity as local representatives of the Trustee, not as representatives of Mr Slater, and took steps pursuant to the Orders made on 16 August 2016 to progress the administration and realisation of Mr Slater’s assets located in Australia, a task which had been entrusted to them.
35 The ACT Property was not offered for sale immediately after orders were made in the ACT SC Proceeding because:
(1) Mr Porter formed the opinion that it was too late in the year to commence a marketing campaign for the ACT Property; and
(2) Mr Wilson and Mr Porter disagreed about the approach that should be taken to the EFM caveat. Mr Wilson was of the opinion that it should be lapsed before marketing the ACT Property for sale while Mr Porter thought that it was inappropriate to incur the costs that would be associated with issuing a lapsing notice and any contested application which might then arise. Mr Porter considered that the more cost effective way to proceed was to agree a sale process with the net sale proceeds to then be paid into court so that all interested parties could agitate their claims in one proceeding.
36 On 17 July 2018 Mr Porter wrote to each of Mr Wilson, Westpac and EFM proposing a regime for an orderly sale of the ACT property: the Australian Representatives would instruct real estate agents to market the property by way of public auction; and, after allowing for the costs and expenses of the sale and discharge of Westpac’s mortgage, the net sale proceeds would be paid into the Australian Representatives’ solicitor’s account pending determination of the validity of the EFM caveat.
37 Soon after the proposal was put, EFM agreed in principle with it, subject to clarification of some costs issues. As at 8 January 2019 issues raised by Westpac had resolved and it agreed to proceed with the proposed sale of the ACT Property in accordance with the Australian Representatives’ proposal as amended by subsequent correspondence. However, the same was not the case for MWP which objected to the Australian Representatives’ proposal.
38 There was a considerable amount of correspondence between the Australian Representatives, the Trustee and MWP which continued over a lengthy period in relation to the proposal. The correspondence sent by Mr Wilson on behalf of MWP on this subject was vitriolic. For example:
(1) an email dated 17 July 2018 from Mr Wilson to, among others, Mr Porter included:
No, we do not agree at all.
This letter is entirely inconsistent with the true legal position, and at utterly odds with our discussions, at length and over time, with Jason Cronan, the senior partner in charge of our appointments.
The EFM Caveat is a fraud, a clear contempt of the NSW F&DO’s and must be cleared off, first and as a first step. You are condoning and aiding-and-abetting their on-going fraud on MWP.
(2) an email dated 21 December 2018 from Mr Wilson to, among others, Mr Porter included:
As the petitioning appointing and principal and only funding creditor please now advise and by return what on earth is going on with the Slater Estate and more specifically the houses in Canberra and Mascot that are there to be taken and sold
In our view there can be no cooperation with McKay at EFM and Rothwell as their purported caveat is bogus a fraud and contempt and they are the ongoing funder and partner of Emmott as we have proven
I received a ludicrous email from Hook in reply to our funding offer which is and was unacceptable implying cooperation with our enemies and adversaries which we will not allow and tolerate
Please advise the true position ASAP
(3) an email dated 11 January 2019 from Mr Wilson to, among others, Andrew Hook of Begbies Traynor, the firm of which the Trustee is a member, and copied to Mr Porter included:
EFM is not and cannot be regarded as a "party", other than to the fraud, contempt and breaches of the on-going freezing and disclosure orders, designed to do just what they have achieved against the interests of the Estate, why cannot you and Julie and your Local Reps not accept the blindingly obvious facts before you, which we have set out at great length?
We are not prepared, or willing to co-operate in any manner whatsoever with such fraudsters who are no more than a mere "front" for the Bankrupt and his Partners.
If you continue to remain unwilling to accept and deal with the reality you face, we will do so ourselves. You and your Local Reps have also done nothing to recover any of the other assets.
39 In a letter dated 14 January 2019 Ms Farmer informed MWP that:
ACT Property Sale
On 8 January 2019, Westpac confirmed its agreement to the sale of the ACT Property in accordance with the terms of the attached Proposal (which was set out in the letter from SV Partners to you, Westpac and EFM dated 17 July 2018.) The tracked changes represent changes requested by Westpac and which have been agreed by the Australian Representative and the Trustee.
Having just received Westpac's consent, we are now in a position to begin the process of selling the ACT Property for the benefit of all creditors.
EFM Caveat
In relation to the EFM Caveat, as has been previously stated the Australian Representatives and the Trustee have not accepted that EFM has valid security. EFM has however agreed to remove their caveat for the sale to proceed. Once the ACT Property is sold they will have to prove they have a valid interest in the ACT Property. In that regard, please refer to parts 11, 12 and 13 of the Proposal.
The enclosed Proposal relevantly included:
…
7. Subject to the sale price, Westpac's mortgage will be satisfied in full from the sale of the Property after prior to payment of the Australian Representative's Costs, the Trustee's Costs and the Ancillary Costs.
8. The remaining funds, after payment of the Australian Representative's Costs, The Trustee's Costs, the Ancillary Costs and discharge of the mortgage to Westpac, (Net Sale Proceeds) will be held in the trust account of DWF (Australia) pending a determination of the caveat lodged by EFM (EFM Caveat).
9. Michael Wilson and Partners Ltd gives us and the Trustee explicit consent to sell the Property. Furthermore, Michael Wilson and Partners Ltd agrees that they will not take any steps, including but not limited to applying to Court under the asset freezing order (and bearing Dealing No 1818231) (Freezing Order), or lodging a caveat to prevent the sale of the Property.
10. In the event it is necessary to take steps, including preparing and filing orders with the Court, varying the Freezing Order to allow the sale to proceed, we will instruct Ms Farmer at DWF (Australia) to take the necessary steps and prepare any Court documents. Michael Wilson and Partners Ltd will undertake and agree to execute all documents to give effect to a variation of the Court's orders in a timely manner and prior to any sale, if required. All parties agree that the costs associated with this work will be paid from the sale proceeds as part of the Ancillary Costs.
11. EFM gives us and the Trustee explicit consent to sell the Property with the validity of its caveat on title (and bearing Dealing No 1811292) (Caveat) being determined after the Property sale.
12. On the condition that we will instruct DWF (Australia) to hold the Net Sale Proceeds in trust (in accordance with paragraph 8) and pending the determination of the validity of the EFM Caveat, EFM undertakes and agrees to provide a Withdrawal of Caveat (to be prepared by DWF (Australia)) at least seven days prior to the auction of the Property.
13. If the EFM Caveat is found to be valid, then the Net Sale Proceeds will be used to satisfy the debt owed to EFM with any remaining funds being paid to the Trustee.
(Emphasis in original.)
40 By email dated 16 January 2019 Mr Wilson informed Ms Farmer that, in effect, MWP did not agree to the Australian Representatives’ proposal and it intended to retain its caveat and to proceed with its application which was before the ACT Supreme Court to “seize and sell” the ACT Property. In response by letter dated 23 January 2019 DWF, among other things, informed MWP that:
We are instructed as follows:
1. In light of your intransigent and unreasonable approach to remove your caveat, we will now take steps to approach the Supreme Court of New South Wales for the freezing order to be lifted to enable the sale of the Property to take place;
2. We note you have suggested that you will proceed with an application to the ACT Supreme Court to seize and sell the house. Any application would be futile and will fail. The Court will simply not appoint anyone other than the Australian Representative to sell the Property. There are already orders in place by a superior court to that effect. For the avoidance of any doubt, we will rely on this correspondence and prior correspondence to seek a personal costs order against you should any such steps be taken. Your purported steps are simply counterproductive and involve delay and cost.
…
In relation to the EFM Caveat, as previously stated, the Australian Representatives and the Trustee have not accepted that EFM has valid security. The proposed strategy will simply allow the Property to be realised to save ongoing running costs such as utility supplies and deterioration of the Property, which may adversely affect the eventual sale price. Once the property is sold EFM will have to prove they have a valid interest.
We shall keep you informed of the progress of the Australian Representative's steps to realise the Property which, we advise, is for the benefit of all creditors not just the petitioning creditor.
41 By email sent on 23 January 2019 Mr Wilson once again objected to the Australian Representatives’ proposed course, called for their resignation and indicated that MWP would proceed with its application in the ACT Supreme Court, among other things.
42 In late February or early March 2019, because of Mr Wilson’s reluctance to execute a document which would enable the MWP Freezing Order registered on the title of the ACT Property to be lifted, Mr Porter formed the view that it would be necessary to make an application to the NSW Supreme Court for an order discharging the MWP Freezing Order. Accordingly, on 4 March 2019 the Australian Representatives filed a notice of motion seeking an order to that effect and an order that MWP withdraw dealing no 1818231 Court Order – Freezing Order over the ACT Property. The notice of motion first came before the NSW Supreme Court on 15 March 2019 at which time orders were made for MWP to file and serve its affidavits. The proceeding was stood over to 12 April 2019. When next listed before the court on 12 April 2019 there was no appearance on behalf of MWP. At that time the NSW Supreme Court made orders including an order for discharge of the MWP Freezing Order.
43 It became apparent that order 1 made by the NSW Supreme Court on 12 April 2019, discharging the MWP freezing order, was too wide in its terms. It was not Mr Porter’s intention to have the MWP Freezing Order discharged but, rather, to have it lifted insofar as it affected the ACT Property. That is apparent from the transcript of the hearing of the Australian Representatives’ notice of motion before Hammerschlag J in the NSW Supreme Court. Upon realising that there had been an error, the Australian Representatives arranged for the proceeding to be relisted before the NSW Supreme Court and on 3 May 2019 the relevant order was varied by consent so that orders were made requiring MWP to withdraw its freezing order insofar as it affected the ACT Property and, in the event that it failed to do so within 28 days of service of the orders on it, authorising a registrar of the NSW Supreme Court to sign an application and provide it to the Australian Representatives for the purpose of giving effect to the orders.
44 Despite the orders made by the NSW Supreme Court it was not until October 2019 that the MWP Freezing Order was lifted from the title of the ACT Property. Mr Porter explains why that is so. In summary, the first versions of the application to lift the MWP Freezing Order provided by Mr Wilson were not in a form acceptable to the Australian Capital Territory Land Registry and subsequently there was some delay in the dispatch of a further signed version of the application. In any event for those reasons the settlement of the sale of the ACT Property did not occur until 18 October 2019. Contracts for sale of that property had been exchanged at auction on 31 July 2019.
45 Mr Porter did not take steps to rent out the ACT Property because he did not anticipate that the sale process would take as long as it in fact did take, he did not anticipate that the Trustee would commence the ACT SC Proceeding and because of the uncertainty about when the ACT Property could be sold. Mr Porter was of the opinion that having a tenant in the ACT Property would add to that uncertainty. Mr Porter was extensively cross-examined about why he did not secure a tenant for the ACT Property pending its sale. He explained that the recommendation made to the Australian Representatives by their real estate agent, LJ Hooker, was that it should be sold with vacant possession; the agent had also advised that short-term leases could be problematic, particularly when it came to termination; and his own experience in selling residential real estate is that it is better to offer a property with vacant possession without the need to remove a tenant and, even where an investor might be the purchaser, it may wish to negotiate its own lease terms and retain its preferred managing agent. Mr Porter did not accept that it would have been better for the estate to rent the ACT Property pending its sale.
Proceeds of sale of the ACT Property
46 The ACT Property was sold for $750,000. The following amounts were deducted from the sale proceeds:
ACT Revenue office | $66,102.17 |
Icon Water | $1,725.16 |
Colquhoun Murphy | $2,373.80 |
Westpac | $545,079.14 |
First Corp Property Inspections | $1,190.00 |
47 The net proceeds of sale, $110,660.14, have been paid by the Australian Representatives into an account held with Macquarie Bank Limited.
MWP’s contention that Mr Slater has an interest in other assets
48 Mr Porter has also undertaken investigations in relation to MWP’s belief that Mr Slater has an interest in property located in Australia, other than the ACT Property, and has reached the following conclusions about those matters:
(1) in relation to the property situated at 51 Bannerman Crescent, Rosebery, NSW (Rosebery Property), MWP asserts that Mr Slater has been in a de facto relationship with Alexandra Neovius since 2003/4 and that as a result under Australian law Mr Slater has a 50% interest in her assets, including the Rosebery Property which has vested in his bankrupt estate, and that a caveat can be lodged on title and investigations undertaken. Mr Porter observes that the Rosebery Property is registered in the names of Ms Neovius and her mother. He is unaware of any basis for MWP’s assertion that under Australian law a de facto spouse may, by reason of that status, claim 50% of the other partner’s assets. Mr Porter is also unaware of any basis on which he, as one of the Australian Representatives of Mr Slater’s UK trustee in bankruptcy, could have lodged a caveat on the title of the Rosebery Property;
(2) MWP contends that the Rosebery Property was at least partially funded by Mr Slater and the Temujin Partnership and other nominated entities located in a number of jurisdictions including the United Arab Emirates and the Bahamas but all of which, it is said, carry on business, bank in and hold assets in Australia. Mr Porter notes that he has not been provided with any evidence which supports the existence of any interest of Mr Slater in any of these assets and has not been requested by the Trustee to pursue any claim. Mr Porter says that without funding he is unable to carry out any investigation or to initiate any legal proceedings and that at no time has MWP offered to provide funding to cover any of the costs that might be involved in further investigation; and
(3) the only instructions that the Trustee has given to Mr Porter to investigate other assets of Mr Slater’s estate are in relation to artworks which were held at Grace Storage. Upon undertaking investigations, Mr Porter found that the artworks were no longer at Grace Storage and had been removed by a woman called Deborah who paid the outstanding storage fees and claimed to have purchased the artworks. Mr Porter had an independent valuation undertaken of the artworks, based on photographs of them, and provided that valuation to the Trustee. That valuation was much lower than the estimated $30,000 given by Mr Slater of the value of the artworks. The Trustee decided no further action should be taken in relation to them. Accordingly, the investigations into those assets are complete.
49 Mr Porter was cross-examined about the Rosebery Property. He explained that he has no instructions from the Trustee to investigate that property and that the Trustee has investigated it herself and taken her own legal advice, which differs from the view held by MWP about it.
50 MWP put into evidence a number of documents about various companies registered in Australia and elsewhere. One of those companies is Sandwood Pty Ltd (Sandwood), in relation to which MWP put into evidence the following documents:
(1) a historical company extract extracted from the Australian Securities and Investments Commission’s database on 31 August 2009, showing that its registered office and principal place of business were located in Surrey Hills, Victoria, its directors were Gary Ernest Randall and Lisbeth Randall, its secretary was Mr Randall and that its shareholders were Mr and Mrs Randall who held one share each;
(2) an email dated 22 February 2008 from Mr Slater to Brian Garvey with the subject line “Payment of deposit under Sale and Purchase Agreement” which provided:
Baverstock shareholders have agreed to direct the deposit payment under the agreement to Sandwood Pty Ltd.
I will provide bank account details in this regard today.
What else is required from your end to make this payment.
(3) a sale and purchase agreement dated 17 August 2007 between Roxi Petroleum plc as purchaser and Baverstock GmbH as seller for the sale of 59% of the of the issued share capital of Eragon Petroleum plc which included a definition of “Deposit” as USD1.5 million; and
(4) trust account statements for law firm Henry Davis York in relation to Mr Slater for the period commencing 1 October 2006 showing a receipt from Sandwood on 12 July 2007 of $230,467.85.
51 Mr Porter was taken to the documents referred to in the preceding paragraph in cross-examination and was asked why he did not investigate Sandwood. Mr Porter explained that the information was provided to the Trustee who was conducting that investigation and that she did not instruct the Australian Representatives to undertake any investigations in relation to Sandwood. Mr Porter said that Ms Palmer is the Trustee and that she is conducting the investigation, whether it be in Australia or elsewhere and he is there to assist her on her instructions. He said that the Trustee had not provided instructions to investigate any matters in relation to Sandwood.
52 It is not otherwise necessary to set out in any detail the material about those other entities put into evidence by MWP. To the extent necessary it is addressed below.
53 MWP says that the Trustee is a party to proceeding 82 of 2015 before the ACT Supreme Court and that, through her, the Australian Representatives are also a party to and remain involved in that proceeding in which MWP seeks, among other things, costs orders. He says that, in light of that proceeding, this proceeding is premature. Mr Porter’s evidence is that, contrary to Mr Wilson’s evidence, the Australian Representatives are not a party to that proceeding. I accept Mr Porter’s evidence. It is apparent from the copy of the application in proceeding 82 of 2015 filed by MWP as judgment creditor that the Australian Representatives are not parties to that proceeding.
The Australian Representatives’ remuneration and expenses
54 According to Mr Porter, since their appointment the Australian Representatives have incurred fees and expenses as set out at [55] and [57] below.
55 Mr Porter gives evidence of the following fees incurred:
(1) SV Partners fees as at 29 January 2020 $54,911.67
(2) SV Partners’ disbursements as at 29 January 2020 $11,871.08
(3) Revive Financial’s fees and disbursements as at 29 January 2020 $13,150.65
(4) Legal fees:
(a) O’Neill Partners $18,942.84
(b) DWF Lawyers $25,203.20
(c) KPF Law $14,161.95
(d) S Golledge SC $5,280.00
56 Despite the higher amount expended, the Australian Representatives only seek the lesser amount of $128,221.44 by way of remuneration in their amended application. This is because they no longer seek any costs associated with the work done to vary the MWP Freezing Order in April 2019.
57 Mr Porter sets out the amount claimed by MWP as a priority payment as follows:
Amount paid to, or at the request of, the UK Trustee, by Michael Wilson | |
O’Neill Partners | $10,000.00 |
Begbies Traynor | £10,000.00 |
LJ Hooker/ADDA Appliance | $792.00 (dishwasher) |
LJ Hooker | $8,023.00 |
Total | £10,000.00 and $18,815.00 |
Mr Porter notes that, in relation to the amounts claimed by MWP, the amount of $10,000 was paid to O’Neill Partners in connection with that firm acting for the Trustee on the application to appoint the Australian Representatives; £10,000 was paid to Begbies Traynor for the Trustee’s fees associated with making that application; and the balance, $8,815, were funds remitted to the Australian Representatives for costs, including maintenance fees, associated with the ACT Property.
58 In Mr Porter’s opinion the most appropriate method for charging for work done by the Australian Representatives is time-based charging as it ensures that creditors are only charged for work that is performed. He notes that both SV Partners and Revive Financial maintain a time recording system that can produce a detailed analysis of time spent on each task by each individual staff member working on the administration which provides full accountability in the method of calculation. Mr Porter also says that time-based remuneration factors in the performance of tasks which do not directly relate to the realisation of assets, for example statutory reporting requirements.
59 SV Partners uses a form of MYOB AE software to record individual time entries by all staff for time recording purposes for an insolvency appointment. Mr Porter and his staff used this software to record individual time entries for work performed in connection with the appointment of the Australian Representatives. This software provides a breakdown by individual staff member of the date on which a particular task is performed, the time spent performing the task, the applicable hourly rate, the amount charged for the particular task, the task code for the work performed and a brief narrative of the nature of the work performed.
60 Revive Financial uses Insolvency Practitioners System Core (IPSC) to record individual time entries by its staff. Like the MYOB AE Software, IPSC provides a breakdown by individual staff member of the date on which a particular task was performed, the time spent performing the task, the applicable hourly rate, the amount charged for the task, the task code for the work performed and a narrative describing the nature of the work performed.
61 In support of the claim by the Australian Representatives for their costs and disbursements Mr Porter provides the following:
(1) a summary of SV Partners’ unbilled work in progress and disbursements as well as a print out of the detailed time entries and hourly rates of SV Partners’ employees who worked on the matter showing all attendances including those which have been written off. Mr Porter explains that the tasks that were written off related to general administration work rather than issues concerning the ACT Property;
(2) a spreadsheet provided by Mr Moretti of his unbilled work in progress and disbursements. Mr Porter has reviewed that schedule and cross checked it against SV Partners’ records to consider whether the work carried out by Mr Moretti was reasonable and necessary. Mr Porter notes that Mr Moretti has also written off some of his work in progress and that, at Mr Porter’s request, he reviewed his work in progress and reduced it for reasonableness; and
(3) copies of invoices from law firms TressCox dated 2 February 2018 and 30 November 2017, both of which have been paid by SV Partners, Boettcher Law dated 5 October 2016, 13 January 2017 and 13 February 2017, all of which have been paid by SV Partners, DWF (Australia) and KPF Law. Mr Porter explains that over the course of the administration he has retained Ms Farmer as his solicitor and, during that time, she has been a partner of TressCox Lawyers, DWF (Australia) and KPF Law and that Boettcher Law is a Canberra firm which was retained to lodge a caveat over, and to assist the Australian Representatives to register their interest on the title of, the ACT Property.
62 More generally in relation to SV Partners’ unbilled work in progress Mr Porter says that it was appropriate that he was the person who communicated with Mr Wilson as he is a senior legal practitioner and the tenor of some of his communications required a senior practitioner to respond. Mr Porter determined that other work undertaken should be allocated according to the necessary qualifications of the person performing it and that work undertaken by him or senior managers was not suitable for administrative staff. Mr Porter also ensured there was no duplication.
63 Mr Porter has also reviewed the invoices for legal work undertaken and considers, based on his experience and regular use of legal services during his 23 years of practice, that they are reasonable, proportionate and proper in the circumstances. Relevantly he notes that the fees incurred have been more substantial than they may have been because of the commencement of the ACT SC Proceeding by the Trustee, the objections raised by Mr Wilson to the MWP Freezing Order and the extensive correspondence engaged in with Mr Wilson.
64 Mr Wilson gives the following evidence about the remuneration and other fees claimed by the Australian Representatives:
(1) the fees claimed are clearly excessive;
(2) no fees and costs of Revive Financial should be included because when Mr Moretti left SV partners he should have been removed as one of the Australian Representatives and the additional cost avoided;
(3) the fees of Colquhoun Murphy have been incorrectly excluded from the list of legal fees incurred;
(4) GST is not separately itemised as it should be;
(5) MWP, not Mr Wilson personally, seeks repayment of the monies set out at [57] and payment of interest at the statutory rate under the Bankruptcy Act;
(6) the legal fees incurred and payable to TressCox, DWF, KPF Law and Mills Oakley should be assessed or taxed because they are clearly excessive. Mr Wilson disagrees with Mr Porter’s assessment that the legal fees are reasonable;
(7) strikingly no discounts have been negotiated or agreed or allowed by the Australian Representatives or the legal firms;
(8) Mr Porter only gives evidence of fees incurred up to 29 January 2020 and thus the evidence is not up to date; and
(9) Mr Porter fails to mention or to take account and have regard to fees and costs of MWP and Mr Wilson as a NSW and Victorian solicitor in relation to the substantive work carried out by MWP in relation to Mr Slater’s bankrupt estate in bankrupting Mr Slater, getting the Trustee appointed, having the bankruptcy recognised in Australia, identifying the ACT Property and other assets in Australia and elsewhere, obtaining permission of the NSW Supreme Court to register the Trustee on the title of the ACT Property, assisting the Australian Representatives to vary the MWP Freezing Order and working with LJ Hooker in dealing with Mr Slater, Kate Gosnell and EFM, all of which Mr Wilson says are properly costs of the estate.
Other interested parties
65 The Australian Representatives’ application was served on the Trustee, EFM and Ms Gosnell, as well as MWP. Their amended application was subsequently served on the Trustee. Although EFM originally sought to be heard as an interested party on the application, it subsequently informed the Court that it would not participate in the proceeding, the Trustee informed the Court that she consented to the orders sought by the Australian Representatives and the solicitor for Ms Gosnell informed Ms Farmer that Ms Gosnell did not intend to participate in this proceeding or to proceed with any claim in relation to the proceeds of the sale of the ACT Property.
mwp’s submissions
66 MWP submitted that this case was the result of what it described as a “massive fraud” and “fraudulent conspiracy to injure” MWP by, among others, Mr Slater which commenced in August 2005 and which it had established through judgments and orders of the NSW Supreme Court, which were upheld by the High Court which, in turn, remitted the matter for hearing on limited issues to the Court of Appeal with final orders being made on 31 May 2013. MWP observed that the judgment debts were certified by the trustees of the bankrupt estate of Mr Nicholls at $14 million, were secured by the grant of the MWP Freezing Order, initially made in October 2006 and extended to include other entities of which Mr Slater is the shareholder, and were supported by a further worldwide freezing order made by the UK High Court. MWP described this case of “massive fraud by three New South Wales solicitors” as unique in Australia.
67 MWP submitted that Messrs Nicholls and Slater resisted its applications made in the Federal Circuit Court of Australia (Federal Circuit Court) seeking to bankrupt each of them and ultimately that court only made orders in relation to Mr Nicholls and declined to make orders in relation to Mr Slater despite his ownership of an investment property in Australia, namely the ACT Property, him being a solicitor of the NSW Supreme Court and that he was domiciled in Australia. MWP submitted that as a result it was forced, through no fault of its own, to commence bankruptcy proceedings in the UK against Mr Slater where it faced the same arguments. It said that eventually Mr Slater was brought to account and made a bankrupt by order of the Croydon County Court, that it funded the entire process at great cost and that, on appointment of the Trustee as trustee of Mr Slater’s bankrupt estate, it funded her.
68 MWP said that in August 2016 “in pursuit of justice and … of recovery from the terrible fraud inflicted by three Australian solicitors” which was “deliberate” and “premeditated” and a “fraudulent conspiracy to injure” it caused the recognition of Mr Slater’s bankruptcy under the CBI Act and the Model Law, again arranged and funded by it. MWP says that it chose to give this mandate to SV Partners because it had previously worked with that firm in relation to Mr Nicholls’ bankrupt estate.
69 MWP submitted that it had identified the ACT Property in 2005 which was secured by the MWP Freezing Order. It said that it had the right and could have chosen to realise the ACT Property itself and that the involvement of the Australian Representatives and the Trustee has been “most regrettable and unfortunate”. MWP submitted that the reason for involving them and for expending funds was to further the recovery of $14 million of certified judgment debts and that Mr Slater’s assets are very significant.
70 MWP submitted that “fraudsters hide assets” and that the job of a trustee is not simply to sell a house and do nothing else. MWP contended that the Australian Representatives have done nothing else, have not taken any steps to investigate Mr Slater’s assets, save for some artworks at Mr Wilson’s insistence, have done nothing to investigate the shares in the Temujin entities despite Mr Slater’s evidence that he is the sole shareholder of Temujin International Ltd, he admits he owns shares in Temujin Services Ltd and is a shareholder in Temujin Holdings Ltd and have not investigated Temujin International FZE. As to the latter MWP says Temujin International FZE is a UAE entity and is indirectly owned by Mr Slater because the NSW Supreme Court found that it is held on trust for Temujin International Ltd, a company of which Mr Slater is the sole shareholder.
71 MWP submitted that the Australian Representatives have done nothing in relation to any of the Australian assets either and, despite those assets being in their “backyard”, they could not be bothered to write a letter or issue a notice to produce. They did nothing. MWP referred to the following entities which it submitted were associated with or controlled by Mr Slater and in relation to which no steps had been taken by the Australian Representatives:
(1) the PJT Group which it described as a New South Wales entity comprising two companies, PJT International Pty Limited and PJT Corporate Services Pty Limited (collectively PJT Companies), both of which bank with St George Bank. MWP contended that these companies were formed to circumvent the MWP Freezing Order;
(2) FOF International Pty Limited and FOF Consulting Pty Limited (collectively FOF Companies) which MWP contended were also formed to circumvent the MWP Freezing Order and which continue to trade; and
(3) Fencourt Foundation, an entity established in Panama, which was used to hide shares acquired in a company known as Roxi Petroleum plc.
MWP submitted that these assets are managed by Ms Lighezzolo, a New South Wales resident, for Mr Slater and that the Australian Representatives should investigate them because they are assets of Mr Slater who is domiciled in Australia and is a New South Wales solicitor.
72 MWP submitted that there was an injustice to it in that, despite Mr Slater being domiciled in New South Wales, being a New South Wales solicitor, carrying on an investment business in Australia through the ACT Property and filing tax returns in Australia, MWP was forced to go to the UK to bankrupt him and then have the bankruptcy recognised in Australia. MWP submitted that, despite the fact that Mr Slater was made a bankrupt by the Croydon County Court in the UK because the Federal Circuit Court found that he was not ordinarily resident in Australia, the recognition of the bankruptcy under the CBI Act and the Model Law changed the position and Mr Slater’s bankruptcy was recognised in Australia.
73 MWP also submitted that the Australian Representatives have done nothing about Mr Slater’s claim in his preliminary information questionnaire provided to the Trustee that he has a claim against Mr Emmott in the amount of £400,000. It observes that Mr Emmott is a New South Wales solicitor who is domiciled in New South Wales.
74 MWP submitted that it has established that Mr Slater has been in a de facto relationship with Ms Neovius since 2005 but the Australian Representatives have taken no steps to inquire into the assets of Ms Neovius in which Mr Slater may have an interest. This is so despite MWP providing evidence about the Rosebery Property and the evidence of Mr Slater providing funding to Ms Neovius from his own accounts held with Westpac and accounts held by Temujin Holdings Ltd and PJT.
75 MWP also submitted that the Australian Representatives took no steps in relation to Mr Slater’s artworks or household effects which Mr Slater estimated to be valued at $30,000-$50,000 and $20,000 respectively.
76 In relation to the ACT Property MWP submitted that the Australian Representatives:
(1) could not be bothered renting it out in the period from their appointment until its sale;
(2) in the knowledge that beneficial ownership of the ACT Property vested in the Trustee, unnecessarily lodged a caveat on its title without realising that to do so was a breach of the MWP Freezing Order and did so in order to “get the asset on the balance sheet of SV Partners” to secure their fees and “take it for themselves”;
(3) lodged that caveat without the Trustee’s prior approval which made her “so angry” that she commenced the ACT SC Proceeding to rectify the title; and
(4) contrary to the instructions of the Trustee and the legal advice obtained by her, refused to lodge a lapsing notice for the EFM caveat.
77 In relation to the Australian Representatives’ claim for remuneration MWP submitted that there was no justification for the involvement of senior counsel or more than one junior solicitor, the costs are disproportionate and the Australian Representatives are asking the Court to prefer their costs over those of the Trustee and those funded by MWP, both of which are also priority costs. MWP contended that the Australian Representatives’ costs related to their going on title, registering their caveat, which it said was a wasted cost, and lifting the MWP Freezing Order should not be allowed.
78 MWP submitted that the Australian Representatives’ application is flawed and they should not be discharged as they have not begun to do their job properly, their costs should be taxed and any orders in relation to costs should be for representation generally and include the costs of the Trustee and not just those of the Australian Representatives.
legislative scheme and legal principles
79 The Trustees apply for orders pursuant to s 6 of the CBI Act, and Art 21(1)(g) of the Model Law. Section 6 of the CBI Act gives force to the Model Law as modified in Australia. Article 21(1)(g) of the Model Law relevantly provides that upon recognition of a foreign proceeding, whether main or non-main, where necessary to protect the assets of the debtor or the interests of the creditors the court may, at the request of the foreign representatives, grant any appropriate relief including by granting any additional relief that may be available to a trustee in bankruptcy under the laws of this State.
80 By the orders made in this Court on 16 August 2016 the administration and realisation of Mr Slater’s assets located in Australia was entrusted to the Australian Representatives and all powers normally available to a trustee in bankruptcy appointed under the Bankruptcy Act were made available to the Australian Representatives. No orders were made at that time in relation to the remuneration of the Australian Representatives.
81 Section 109 of the Bankruptcy Act sets out the priority payments to be made out of the proceeds of the property of the bankrupt before making any other payments and relevantly provides that the trustee must first apply the proceeds in the order prescribed by the regulations in payment of the taxed costs of the petitioning creditor and the costs, charges and expenses of the administration of the bankruptcy including the remuneration and expenses of the trustee.
82 Section 60-5 of the Insolvency Practice Schedule (Bankruptcy) (IPS) which is Sch 2 to the Bankruptcy Act provides that a trustee of a regulated debtor’s estate is entitled to receive remuneration for necessary work properly performed by him or her in relation to the administration of the regulated debtor’s estate, in accordance with remuneration determinations (if any) for the trustee. There are no relevant remuneration determinations.
83 Section 90-15 of the IPS empowers the Court, on an application under s 90-20, to make such orders as it thinks fit in relation to the administration of a regulated debtor’s estate. A person with a financial interest in the debtor’s estate can make an application under s 90-20 of the IPS. A trustee is a person with a financial interest in the administration of a regulated debtor’s estate: see s 5-30 of the IPS. It follows, given their appointment and the order made under Art 21(1)(g) of the Model Law, that the Australian Representatives would also be persons with a financial interest in Mr Slater’s estate for the purposes of s 90-20 of the IPS. Section 90-15(3)(f) of the IPS provides that the orders that the Court may make pursuant to s 90-15(1) include relevantly orders in relation to remuneration.
84 In In the matter of Aberdeen All Farm Pty Ltd (In Liq) 2020 NSWSC 770 at [33]-[36] Black J set out the principles which apply in determining an application by a liquidator for approval of his or her remuneration under s 60-5 of the Insolvency Practice Schedule (Corporations), which is relevantly in the same terms as s 60-5 of the IPS, as follows:
33. Next, the Liquidator seeks approval of his remuneration under s 60-5 of the Insolvency Practice Schedule (Corporations) (“IPSC”). Mr Golledge refers to s 60-12 of the IPSC which sets out matters to which the Court must have regard in making a remuneration determination. He also refers to observations of the Court of Appeal in Sanderson, as liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr [2017] NSWCA 38; (2017) 118 ACSR 333, referring to the relevance of “proportionality” in fixing a practitioner’s remuneration, and to the recognition by the Full Court of Federal Court in Templeton v ASIC [2015] FCAFC 137; (2015) 108 ACSR 545 that proportionality is to be judged having regard to the complexity of the issues with which an insolvency practitioner had to deal. The Full Court there observed at [52] that:
“More generally, in considering the question of proportionality one also has to bear in mind two other points that may be overlooked. First, in performing some work, it may not be entirely clear ex ante what the precise benefit might be. A situation where work was being performed to preserve property of known value is quite different to the situation where work was being performed to achieve a return to creditors that was unclear. In the latter case, it might be inappropriate to use a hindsight analysis of known returns after the event to assess whether the work performed was proportional to the task; in such a situation one would look at the expected realistic return at the time the work was performed rather than actual outcomes. Second, some work may be sufficiently complex and labour intensive such as to justify a cost/benefit ratio of 6/10. After all, if the duty of the Receivers is to maximise returns and it is necessary to spend $0.60 to achieve $1.00, then proportionality is satisfied even if the ratio might be high.”
34. In Re Banksia Securities Ltd (in liq) (recs and mgrs apptd) [2017] NSWSC 540, Gleeson JA, in dealing with a receiver’s claim for remuneration, noted that common bases for calculation of remuneration included time-based charging and a commission based on percentage of recoveries, and that the approach to be adopted is directed to securing reasonable remuneration in the circumstances. Gleeson JA there also referred to the Court of Appeal’s decision in Sanderson, as liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr above and summarised the principles which arose from Bathurst CJ’s judgment in that case (at [44]-[46]) as follows:
“First, the onus is on the special purpose receivers to establish that the remuneration claimed is reasonable. It is the function of the Court … to determine the remuneration by considering the material provided and bringing an independent mind to bear on the relevant issues: Sakr at [54].
Second, many of the factors in s 425(8), in particular, pars (d)-(e) and (g)-(h) can be seen to have as their unifying theme the concept of proportionality. The question of proportionality in terms of work done as compared with the size of the property the subject of the insolvency administration or the benefit to be obtained from the work, is an important consideration in determining reasonableness: Templeton v Australian Securities and Investments Commission (2015) 108 ACSR 545; (2015) FCAFC 137. The work done must be proportionate to the difficulty and 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: Sakr at [55].
Third, the mere fact that the work performed does not lead to augmentation of the funds available for distribution does not mean that the special purpose receivers are not entitled to be remunerated for it. In the present case, the Trustee fee application and the time spent consulting with the committee of creditors on various issues, including obtaining approval of the special purpose receivers’ remuneration will not result in the augmentation of the funds available for distribution. Provided it was reasonable to carry out the work and the amount charged is reasonable, there is no reason a liquidator should not recover remuneration for undertaking the work: Sakr at [57]–[58].
35. Mr Golledge also refers to my decision in Re Sakr Nominees Pty Ltd [2017] NSWSC 668 at [23]-[25], where I referred to the position as it had developed following the Court of Appeal's decision in Sanderson, as Liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr above. I there noted the relevance of proportionality in an application of this kind, and also noted that the majority of decisions had accepted that, at least in some circumstances, time costing may be an appropriate starting point for a calculation of remuneration, although the assessment of proportionality is important in testing the reasonableness of time-based remuneration. I noted that several cases had recognised the significance of the percentage that a liquidator's remuneration bears to the level of asset realisations achieved, but that is less relevant in a provisional liquidation, where the provisional liquidator would not be expected to, and indeed generally does not have power to, realise the company's assets. I also noted the recognition in the case law that work may be necessary, including in order to comply with a liquidator's or provisional liquidator's obligations, although it does not in fact generate any positive return to creditors.
36. In Re Idylic Solutions Pty Ltd as trustee for Super Save Superannuation Fund [2016] NSWSC 1292 at [58], I also observed that it is not the Court’s role, as constituted by a judge, to undertake a line by line review of the relevant narratives in an insolvency practitioner’s billing record, but I there reviewed the relevant narratives in a broad way in order to satisfy myself that they supported the other evidence led in respect of the claimed remuneration. Gleeson JA adopted the same approach in Banksia above at [48] and I also adopted that approach in Re Banksia Securities Limited (in liq) (recs and mgrs apptd) [2018] NSWSC 229. I have also taken that approach in this application.
85 The question to be resolved in an application such as the one now before me is whether the remuneration sought by the Australian Representatives is reasonable. Considering whether it is and fixing reasonable remuneration requires the Court to apply and take into account a broad range of evaluative factors. Proportionality is a factor in considering the question of reasonableness: see Templeton v ASIC [2015] FCAFC 137; (2015) 108 ACSR 545 at [23], [31].
86 In Re Idylic Solutions Pty Ltd as trustee for Super Save Superannuation Fund [2016] NSWSC 1292; (2016) 115 ACSR 581 at [38] Black J observed that a number of decisions in the State Supreme Courts and this Court had applied time costing as at least the starting point to calculate remuneration, although in each case the need for proportionality between the cost of the work done and the value of the services provided had been emphasised.
consideration
Australian Representatives’ Remuneration
87 As the principles set out above establish it is necessary for me to consider whether the remuneration sought by the Australian Representatives is reasonable. In that regard two observations can be made at the outset. First, what may have apparently seemed to be a straightforward assignment at the outset clearly, as the evidence demonstrates, became more complex and drawn out. Secondly, the Australian Representatives’ claim for remuneration based on time costing is in fact less than the actual costs incurred.
88 Before turning to address the quantum of remuneration claimed, and whether it is reasonable having regard to the relevant factors, it is necessary to address MWP’s submissions going to other issues. They fall into three broad categories or subject areas.
89 The first category concerned the historical dealings between MWP and relevantly Mr Slater: the relationship between MWP and Mr Slater; the events which led to the commencement of the proceeding in the NSW Supreme Court against, among others, Mr Slater for breach of various duties; and the course of that proceeding. As I understand it, it was ultimately the judgment obtained in the NSW SC Proceeding that was registered as a judgment in the High Court of Justice in the UK and based on which the County Court made an order bankrupting Mr Slater. But those matters are no more than background and have no role to play in determining whether the remuneration claimed by the Australian Representatives is reasonable or whether they should be discharged from their appointment, an issue which is considered below.
90 The second category of submissions concerned the steps that MWP said ought to have, but have not, been taken as part of the investigation into Mr Slater’s affairs. But, this application does not concern whether the Trustee has fulfilled her obligations or the steps that have or should have been taken by the Trustee or, indeed, the Australian Representatives at her request.
91 In any event, it is apparent that the matters raised by MWP could not be the subject of investigation by the Australian Representatives. For example, MWP complained about the failure to investigate:
(1) the PJT Companies and the FOF Companies which are registered in Australia. However, the evidence relied on by MWP demonstrates that Mr Slater is neither an officer nor shareholder of either of the PJT Companies or the FOF Companies;
(2) shares acquired in Roxi Petroleum plc, which is not an Australian company; and
(3) ownership and control of the Fencourt Foundation which, based on the evidence relied on by MWP, is a Panamanian entity.
These may be matters to raise with the Trustee. However, they are not matters for the Australian Representatives who were entrusted with the administration and realisation of Mr Slater’s assets in Australia.
92 Putting to one side the ACT Property, the only other asset identified in Australia and which the Trustee asked the Australian Representatives to investigate was Mr Slater’s artworks. I accept Mr Porter’s evidence that he did so, that he reported his findings to the Trustee and that she thereafter did not instruct the Australian Representatives to take any further steps (see [48](3) above).
93 MWP claims that the Australian Representatives ought to have inquired into the Rosebery Property, which it says Mr Slater has an interest in by reason of his de facto relationship with Ms Neovius. But, the mere existence of a marital or de facto relationship does not give rise to interests in property. Absent circumstances of the kind recognised in cases such as Muschinski v Dodds (1985) 160 CLR 583, proprietary interests in the context of such a relationship depend upon contributions to the purchase price of assets or the operation of a constructive trust or proprietary estoppel. MWP has not established any of those matters and, accordingly, its contention that the Rosebery Property forms part of Mr Slater’s assets in Australia cannot be sustained.
94 The third category of submissions concerned the ACT Property and the steps which MWP said should have been, but were not, taken in relation to that property or steps which were allegedly improperly taken. To an extent these submissions also go to whether the costs incurred and claimed by the Australian Representatives are reasonable.
95 MWP’s complaints are that:
(1) the Australian Representatives improperly had themselves registered on the title of the ACT Property;
(2) there was delay in the sale process for the ACT Property;
(3) the Australian Representatives did not remove the EFM caveat from the title of the ACT Property;
(4) the ACT Property was not rented out pending sale; and
(5) the Australian Representatives improperly varied the MWP Freezing Order.
96 Insofar as MWP complains about the registration of the Australian Representatives on the title to the ACT Property, it ignores the outcome of the ACT SC Proceeding. An extract from Palmer v Registrar General is set out at [32] above. In effect, as explained by Mossop J, the appointment of the Trustee did not have the effect of vesting title in Australian immovable property in her. As a result of the orders made in this Court on 16 August 2016, the Australian Representatives were given the duty of realising local assets and the power to do so. Given the system of land registration in the ACT the Australian Representatives were required to become registered on title to enable them to deal with that asset. The Trustee was not in a position, merely because she was the trustee of Mr Slater’s bankrupt estate, to become the registered owner of the ACT Property. The alteration of the MWP Freezing Order in 2017 could not overcome that lack of status. That is a complete answer to the complaint raised by MWP.
97 I turn then to the EFM caveat. In the First Wilson Affidavit Mr Wilson claims that EFM never had a valid caveatable interest including because it had no valid and registered mortgage or charge. However the document relied on MWP, being a certificate under s 155 and s 156 of the Evidence Act 2011 (ACT) given by the Deputy Registrar of Land Titles under s 7 of the Land Titles Act 1925 (ACT) does not state, let alone establish, that EFM’s caveat was invalid or improper. It simply notes that the title does not record EFM as holding “an interest recorded by a mortgage on” the ACT Property, a fact which is evident given the terms of the caveat itself which described the nature of the estate or interest claimed by EFM to be “An Equitable Estate in Fee Simple arising out of a Loan Agreement creating a chargeable interest”.
98 As Mr Porter explains, the Australian Representatives sought to address the EFM caveat and any claim by EFM by proposing a regime whereby the validity of any interest claimed by EFM could be addressed after completion of the sale of the ACT Property. This regime would avoid any delay in the sale process and would not require the Australian Representatives to expend funds on a dispute with EFM. The Australian Representatives’ proposal was put forward as an alternative to lodgement of a lapsing notice which could have led to the commencement of a proceeding. All parties accepted the proposal other than MWP. No criticism can be levelled at the Australian Representatives for proposing this course and refusing to take a more aggressive approach.
99 Any delay in the sale of the ACT Property is explained by Mr Porter’s evidence. The steps taken first by the Trustee in commencing the ACT SC Proceeding and then by MWP in refusing to agree to the proposal put forward by the Australian Representatives to address the EFM caveat were both matters which led to a significant delay in the instigation of a sale process for the ACT Property. Added to that was the need to then remove the MWP Freezing Order from the title of the ACT Property, another matter which the Australian Representatives had to address. The evidence clearly establishes that any delay was not occasioned by any conduct of the Australian Representatives.
100 As to rental of the ACT Property, Mr Porter’s evidence, which I accept, is that he did not anticipate that the sale process would take as long as it did. Further, Mr Porter had been advised that it was better to sell the property with vacant possession. In any event there is no evidence relied on by MWP that the ACT Property could have been leased on terms which would have produced rental income which could, in turn, have met the costs accruing on it and avoided the issues which were advised to the Australian Representatives in relation to termination of a tenancy.
101 Finally, MWP complains about the way in which the MWP Freezing Order was removed from the title of the ACT Property. I make the following observations. First, it seems that it was because of MWP’s refusal to withdraw the MWP Freezing Order from the title of that property, which I infer was caused by MWP’s incorrect view about the entitlement of the Trustee to become registered on title that the Australian Representatives had to approach the NSW Supreme Court to have it varied. That was an expense that could have been avoided had MWP agreed to take steps voluntarily to remove notice of that order from the title. Secondly, when first made the orders of the NSW Supreme Court extended beyond the title to the ACT Property. I accept that that was not the Australian Representatives’ intention. Thirdly, once the Australian Representatives became aware of the issue steps were immediately taken to have the position corrected. Further orders were made by the NSW Supreme Court in early May 2019 limiting the variation of the MWP Freezing Order to removal from the title of the ACT Property. Critically, the costs incurred in dealing with this latter issue are no longer claimed by the Australian Representatives as part of this application.
102 I turn then to consider the claim for remuneration including disbursements made by the Australian Representatives. Mr Porter has given evidence in relation to the quantum of the claim and how it is calculated and, in support, has provided comprehensive reports detailing the time spent by him and Mr Moretti and their staff as well tax invoices issued by their solicitors. The total remuneration, comprising fees and where applicable disbursements, has been calculated on a time basis. There is evidence of the applicable rates for each person, the time spent on a particular task and the total charge for each task.
103 As I have already observed, one might have anticipated, at the time of their appointment, that the assignment given to the Australian Representatives would be straightforward. But that has not turned out to be the case. As is clear from the evidence before me there were a number of complications, and indeed roadblocks, put in the way of the Australian Representatives which made the task of realising the ACT Property a protracted and complex one. This added to the overall cost of the administration by the Australian Representatives. The events which caused the delay and increased complexity, and therefore cost, were occasioned by the conduct of the Trustee and MWP. Further, as Mr Porter explains, the correspondence dispatched by Mr Wilson on behalf of MWP, the nature of the issues it raised and its tone made it necessary for Mr Porter to have a more hands on role in the matter than might otherwise have been the case, another factor which added to the cost.
104 As to proportionality (in the sense described at [84] above) in my view, despite the limited net recoveries following sale of the ACT Property, the remuneration claimed is reasonable and proportionate when regard is had to the complexity of the work required to be undertaken, the need to undertake that work and the context or circumstances in which it had to be performed. That context includes the Trustee taking action to become registered on the title of the ACT Property, despite having agreed at a prior time to the Australian Representatives becoming registered on title, and what might be regarded as obstructive behaviour by a creditor, MWP.
105 In summary, having regard to the amount of work undertaken, the complexity of the work and the various additional steps required to be taken, I am satisfied that the amount claimed by way of remuneration by the Australian Representatives is reasonable. In coming to that view I have undertaken a broad review of the material relied on by the Australian Representatives in support of their claim, noting that they have critically considered the time spent, written off work in progress where required and no longer claim the costs incurred in relation to the steps taken to vary the MWP Freezing Order. I note that the total value of time spent on this administration is likely to exceed the amount claimed by them on this application and that, in any event, given the amount that seems to be available for distribution it is unlikely that the Australian Representatives will receive the total amount of the remuneration claimed in their amended application.
106 In coming to my conclusion I have also considered the various matters raised by MWP. In particular:
(1) insofar as Mr Porter has only provided figures up to 29 January 2020, clearly the Australian Representatives do not seek their remuneration beyond that date. They seek a fixed amount as set out in their amended application, which is the amount that I have considered in coming to my view;
(2) as I have already said I am not satisfied that the remuneration claimed is excessive given the nature of the tasks that the Australian Representatives were required to undertake;
(3) MWP does not explain on what basis it says that a breakdown of GST should have been provided and how this impacts on the Australian Representatives’ claim for their remuneration. In my view it does not;
(4) the question of whether the fees claimed by various lawyers should be taxed is a matter for the Australian Representatives who are relevantly the clients of those firms. Mr Porter’s evidence is that, having reviewed the accounts and given his experience and regular use of legal services, he was satisfied that the legal fees and disbursements incurred were reasonable, proportionate and proper in the circumstances;
(5) the question of whether the Australian Representatives have negotiated or agreed any discounts with service providers is not relevant. As I have already observed, it is apparent that the Australian Representatives have reduced their fees by writing off work in progress and otherwise by not claiming any fees incurred in relation to the variation of the MWP Freezing Order; and
(6) MWP is a creditor of Mr Slater’s estate. It was not retained to act as lawyers for the Australian Representatives or in any other capacity. It is not entitled to any payment of its fees.
107 For those reasons I will approve the remuneration sought by the Australian Representatives in the amount claimed, namely $128,221.44.
Other orders sought by the Australian Representatives
108 The Australian Representatives also seek an order that they would be justified in paying MWP $18,815 as a priority payment in accordance with s 109(10) of the Bankruptcy Act as if the funds covered by them were assets of a regulated debtor under that Act; an order that they be released and discharged from all liability in respect of any acts done or default by them in the administration of the trusteeship of Mr Slater’s bankrupt estate; and an order that they be discharged from their appointment. I address each below.
109 Section 109(10) of the Bankruptcy Act provides:
Where in any bankruptcy:
(a) property has been recovered, realized or preserved under an indemnity for costs of litigation given by a creditor or creditors; or
(b) expenses in relation to which a creditor has, or creditors have, indemnified a trustee have been recovered;
the Court may, upon the application of the trustee or a creditor, make such orders as it thinks just and equitable with respect to the distribution of that property and the amount of those expenses so recovered with a view to giving the indemnifying creditor or creditors, as the case may be, an advantage over others in consideration of the risk assumed by creditor or creditors.
110 The policy behind s 109(10) is to encourage creditors to indemnify trustees in bankruptcy who wish to pursue claims and to reward creditors who take the burden and risks of litigation: see Re the Estate of Connell (dec’d) [2001] FCA 51 at [24]. In Green v Official Trustee in Bankruptcy (2003) 128 FCR 383 at [22] Moore J relevantly said:
111 The difficulty the applicant confronts is that s 109(10)(a) operates, in terms, in circumstances where property has been recovered under an indemnity for costs given by a creditor. While par (a) does not refer to an indemnity given to a trustee (unlike par (b)), it is fairly clear, in my opinion, that is what is intended by the provision. That is, a creditor who indemnifies a trustee for costs in litigation that results in property being recovered, realised or preserved can benefit (by way of being given an advantage) from an order of the Court concerning the distribution of the property. …The evidence before me establishes that MWP paid the sum of $18,815 to the Trustee, made up of $10,000 in relation to the application for the appointment of the Australian Representatives and $8,815 for improvements to the ACT Property. The sum of $10,000 can, by analogy, be taken to be a sum provided by a creditor to enable the recovery of an asset of the bankrupt estate by bringing the proceeding to appoint the Australian Representatives which, in turn, enabled the sale of the ACT Property. The sum of $8,815 was for expenses indemnified by MWP being for the maintenance of the ACT Property. I am satisfied that it is just and equitable that the order sought by the Australian Representatives in favour of MWP should be made and that they would be justified in paying MWP that sum as a priority payment in accordance with s 109(10) of the Bankruptcy Act.
112 It is next necessary to consider whether an order releasing the Australian Representatives from all liability in respect of any acts done or default by them in the administration should be made. As set out at [12] above, on 21 July 2020 I refused leave to MWP to rely on the MWP Application. At the time the Australian Representatives submitted that, in order to preserve the rights of MWP to bring a claim for the relief that was foreshadowed in that application, any ruling on an order of this nature would have to be deferred or, subject to submissions made, be refused. In that way it would be open to MWP to apply for the relief it sought in the MWP Application in the future in a proceeding properly constituted: see Porter (No 1) at [14]-[15].
113 Despite the passing of time, the circumstances have not changed. MWP may wish to bring an application against the Trustee and/or the Australian Representatives in relation to the administration of Mr Slater’s estate. It should not be precluded from doing so by the making of the orders sought by the Australian Representatives in this proceeding. While I acknowledge and understand the Australian Representatives’ desire for such an order I do not intend to accede to it.
114 The Australian Representatives also seek an order that they be discharged from their appointment. The evidence discloses that the Australian Representatives have realised the only asset identified in this jurisdiction, that there are no extant instructions form the Trustee and that the Trustee consents to the making of the orders sought by the Australian Representatives. Accordingly, I am satisfied that I should make the order sought by the Australian Representatives for discharge from their appointment.
costs
115 In their amended application the Australian Representatives seek an order that MWP pay their costs on a lump sum basis from 7 May 2020 in a fixed amount of $39,568.05 and an order that the amount payable by them to MWP of $18,815 (see [111] above) be set off against the costs awarded on a lump sum basis in their favour. In the alternative, the Australian Representatives seek an order that their costs of the application be paid as a priority payment in accordance with s 109(1) of the Bankruptcy Act as if the funds recovered by them were assets of a regulated debtor’s estate under that Act.
116 Latterly the Australian Representatives also sought an order that the October Costs Order be paid in a lump sum.
Costs of the proceeding
117 The Australian Representatives claim their costs on a party/party basis pursuant to r 40.02 of the Federal Court Rules 2011 (Cth) (FCA Rules).
118 In support of their application for a lump sum costs order for their costs of the proceeding the Australian Representatives rely on an affidavit affirmed by Ms Farmer, their solicitor, on 12 August 2020 in which Ms Farmer provides a costs summary which she has prepared in accordance with the Court’s Costs Practice Note (GPN-Costs) (Costs Practice Note).
119 Ms Farmer explains that the lump sum amount of $39,568.05 has been calculated by adopting the following method:
(1) adding Mills Oakley’s professional fees (exclusive of disbursements and GST) to ascertain the Australian Representatives’ solicitor/client costs from 7 May 2020, being the date on which the Court first made orders for MWP to participate in the proceeding, to date;
(2) discounting that amount to account for the Australian Representatives’ estimated party/party costs, resulting in claimable professional fees of $15,698.90;
(3) no additional amount has been added to account for “skill, care and responsibility” despite the experience of the lawyers working on the matter;
(4) adding to that sum counsel’s fees with the 20% reduction applied to account for party/party costs, which equates to $10,080;
(5) adding to that sum other claimable disbursements incurred by the Australian Representatives, being for transcript, which are fully recoverable and amount to $1,789.15; and
(6) adding to that sum the costs of preparing the application for lump sum costs, $2,000, and an additional sum of $10,000 as an estimate for the costs of the hearing on 25 August 2020, based upon the hearing lasting one day and including a hearing of the costs application.
120 Ms Farmer sets out the categories of work that have been fairly and reasonably undertaken in the conduct of the litigation and an estimate, expressed in percentage terms, of the proportion that each category of work constitutes to the total costs claimed and a summary of each person who has performed work on the matter showing their respective hourly rates, total hours worked and an estimate, in percentage terms, of the proportion of the total sum claimed attributable to that person. Details of the disbursements and of counsel’s fees have also been provided by Ms Farmer who notes that counsel’s hourly and daily rates are below those specified in this Court’s National Guide to Counsel Fees (National Guide).
121 The total costs incurred by the Australian Representatives exceeds $48,800 but that amount has been adjusted in the way explained above to $39,568.05.
122 MWP’s evidence in relation to the Australian Representatives’ application for its costs of the proceeding and its application that the October Costs Order be paid in a lump sum is set out in the Second Wilson Affidavit and the Third Wilson Affidavit.
123 In the Second Wilson Affidavit, Mr Wilson objects to the cost summary provided by Ms Farmer and “an order for costs being sought against MWP as the Judgment Creditor, Petition Creditor and funding party, without whom there would be no estate, no trusteeship, no local representatives, no lawyers for the local representatives, no work for them to do and no fees and costs for them to incur and to seek payment of”. Mr Wilson says that there is no basis for such an application or an order for costs against MWP and that the amount sought is “grossly excessive and clearly not fair and reasonable or proportionate”.
124 Mr Wilson says that an excessive number of fee earners have been involved. He says that most law firms in Sydney do not charge clients and do not look to and expect to receive their headline and undiscounted hourly rates and that there was clearly much duplication and much unnecessary work. Mr Wilson says that a 30% discount is not enough as the number of fee earners and rates are clearly excessive and there is no mention of or regard to the principle of proportionality. Mr Wilson also says that there can be no justification for involving senior counsel at his rate and that it is appropriate, in a matter of this nature, to retain junior counsel. Indeed, he says, it is questionable if counsel is needed at all given the seniority and experience of Ms Farmer. Mr Wilson also says there was no need to obtain a transcript of the hearing, that no disclosure is given of the National Guide and no evidence is included proving what is stated in it.
125 Mr Wilson says the costs are clearly grossly excessive and cannot be justified. He says all costs should be taxed and assessed by an independent and professional taxation master and/or assessor.
126 In the Third Wilson Affidavit, Mr Wilson says that upon meeting with Mr Porter in 2019 to discuss Mr Slater’s estate he was informed by Mr Porter that the lawyers acting in the matter were “entirely contingent in all of their involvement and work in relation to this matter, and that none of their fees and costs have ever been, or will ever be paid by Messrs SV Partners itself”. Mr Wilson said that Mr Porter informed him that it had been agreed and understood that those lawyers would only be paid to the extent there were any surplus net assets of Mr Slater’s estate. Mr Wilson relies on a narrative included in a tax invoice issued by DWF on 31 October 2019 which states among other things that senior counsel “confirmed prepared to act on basis taht (sic) he gets paid form (sic) net sale proceeds” and senior counsel’s costs agreement dated 21 February 2019, although of a copy of the latter document was not in evidence before me.
127 Mr Wilson says that in his professional opinion each of the lawyers has been acting in breach of the indemnity principle as set out in Re: Eastwood (deceased) 1975 Chancery 112 and related cases which are also part of the law of Australia.
128 Mr Wilson’s particular complaints about the costs sought in relation to the October Costs Order are summarised at [145] below.
Statutory framework and legal principles
129 Section 43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) confers a wide discretion on the Court to award costs which is not to be read down otherwise then by judicial principle conformable with its amplitude: see DSE (Holdings) Pty Limited v InterTAN Inc [2004] FCA 1251; (2004) 51 ACSR 555 at [14]. Without limiting the Court’s discretion, the Court may, among other things, award a party costs in a specified sum: see s 43(3) of the FCA Act and r 40.02 of the FCA Rules.
130 As noted at [5] above, MWP was granted leave to be heard on this application pursuant to r 2.03 of the Bankruptcy Rules. Rule 2.03(3) provides that the Court may order the person to pay costs if the granting of leave to the person causes additional costs to a party to the proceeding and the Court considers that the costs should be paid by the person.
131 In Kelly (Liquidator), in the matter of Halifax Investment Services Pty Ltd (in liquidation) v Loo [2021] FCA 531 at [384]-[385] I said the following about the Court’s power to award costs in a lump sum:
384 … As observed by a Full Court of this Court (Logan, Kerr and Farrell JJ) in Coshott v Prentice (No 2) [2018] FCAFC 221 (Coshott) at [4] the purpose of the provisions conferring power on the Court to award costs in a lump sum is to avoid the expense, delay and aggravation of protracted litigation arising out of the taxation process. That that is so is also reflected in the Court’s costs practice note (GPN-COSTS) (Cost Practice Note) in which it is recognised that the procedure to determine the quantum of costs for a successful party at final hearing should not be delayed, should be as inexpensive and efficient as possible and, where costs are unable to be resolved by negotiation and require the involvement of the Court, the Court’s preference is to avoid, where possible, the making of costs orders that lead to potentially expensive and lengthy taxation hearings: at paras 3.1 and 3.3.
385 At [5] of Coshott the Full Court observed:
However, a lump sum costs order is not mandated in all cases. Rather, it is a matter for the Court to exercises its discretion as appropriate: Paciocco v Australia and New Zealand Banking Group Limited (No 2) [2017] FCAFC 146; 253 FCR 403 (Paciocco) at [19] citing Hudson v Sigalla (No 2) [2017] FCA 339 at [18]-[19]. In Paciocco, the Full Court (Allsop CJ, Besanko and Middleton JJ) noted (at [20]):
There is no particular characteristic that a case must possess for it to be suitable for the making of a lump sum costs order. Particular circumstances that may make a lump sum order especially appropriate include where in a large and complex commercial matter it would save the time, trouble, expense and aggravation of a taxation; where a taxation would require the parties to consume additional time and incur additional expenditure prolonging already protracted litigation; and generally to avoid an ongoing, counter-productive dispute as to costs, in the interests of achieving finality.
Consideration
132 The first question that arises is whether the Australian Representatives are entitled to a costs order as against MWP. In that regard, there can be no dispute that MWP’s involvement added considerably to the length of the hearing and thus to the costs of the Australian Representatives. This proceeding concerned an application for directions as to the distribution of funds under the Australian Representatives’ control, including in favour of MWP, and approval of the Australian Representatives’ remuneration. Such an application can ordinarily be disposed of in a short time frame. In this case that did not occur. The sole reason for that was MWP’s intervention.
133 The history of the proceeding is set out in detail at [5]-[16] above. First, having sought and been granted leave to be heard MWP first sought to broaden the proceeding to an action for damages against the Australian Representatives and the Trustee, who is not a party. MWP was refused leave to rely on the MWP Application; secondly, MWP failed to comply with Court timetables; thirdly, MWP sought and was granted an adjournment in order to retain legal counsel. But, on the next occasion that the matter was before the Court MWP did not appear by counsel or a solicitor. Mr Wilson continued to appear for MWP; fourthly, on that occasion MWP once again sought a stay of the proceeding or in the alternative an adjournment. Both applications were refused; and fifthly MWP was granted leave to cross-examine Mr Porter over the course of four hours, after which, on the fourth day of hearing, the matter concluded.
134 MWP was entitled and was granted leave to appear as an interested party and to make submissions in relation to the relief sought by the Australian Representatives. However, much of the material it relied on was irrelevant to the matters in issue and, as I have already observed, argumentative and indeed inflammatory. In his cross-examination of Mr Porter, Mr Wilson traversed matters that had little relevance to the matters in issue. Combined with that was MWP’s failure to comply with orders made by the Court and its applications for adjournment. A combination of those factors meant that there were undoubtedly additional costs incurred by the Australian Representatives. In the circumstances, those costs should be borne by MWP.
135 MWP argues that the indemnity principle applies such that the Australian Representatives are not entitled to their costs. That principle was considered in Wentworth v Rogers (2006) 66 NSWLR 474 where commencing at [45] Santow JA said:
The indemnity principle is long-established at general law. It is however not to be applied rigidly, or uninfluenced by statute or by practice recognised by statute, such as in relation to conditional fee agreements. I do not agree with the amicus’ submissions that the principle has ceased to exist. Certainly there have been inroads to it brought about by the Act and by analogical reasoning from recognised exceptions. Where a party to an action has an agreement with their legal adviser that they do not have to pay any costs, then the general law principle states that that party cannot recover party and party costs against their adversary: McCullum v Ifield [1969] 2 NSWR 329 at 330 per Taylor J citing Gundry v Sainsbury [1910] 1 KB 645.
See too at [102] (per Basten JA).
136 At [50]-[51] Santow JA provided the following guidance on the applicable principles:
50 First, the indemnity principle is not immutable, and should be applied flexibly rather than made into a rigid rule, as the examples given by Basten JA demonstrate. This was said as long ago as 1902 by Walker J in New Pinnacle Group Silver Mining Co v Luhrig Coal and Ore Dressing Appliances Co (1902) 2 SR (NSW) 50; 19 WN (NSW) 9. It has been frequently affirmed since, most recently by the Court of Appeal in Dyktynski v BHP Titanium Minerals Pty Ltd (2004) 60 NSWLR 203. There, by analogy with the nominal party cases, a party who successfully conducted litigation for the benefit of his solicitor was not denied recovery from the other party by the indemnity principle. There was in reality no bonus to the successful party, nor punishment of the unsuccessful one, invoking the rationale for the rule articulated 150 years ago by Bramwell B in Harold v (1860) 5 H & N 381 at 385; 157 ER 1229 at 1231.
51 Second, the Act now recognises conditional costs agreements of the kind where payment of the barrister’s or solicitor’s costs “is contingent on the successful outcome of the matter”; s 186. No distinction is drawn between such a contingency expressed as a condition precedent or subsequent. I am inclined to the view that the application of the indemnity principle should not depend on that distinction either, though that is not necessary to decide. The costs agreement, to comply with the Act, must “set out the circumstances constituting the successful outcome of the matter”. I consider that the indemnity principle must at least accommodate the kind of conditional costs agreement recognised by s186. Otherwise, it will operate as a powerful disincentive from using the now statutorily recognised conditional costs agreement, facilitating access to justice, if the lawyer concerned will not recover costs from the other party where successful against that other party.
137 The only evidence of the nature of the costs agreement as between the Australian Representatives and his lawyers is that given by Mr Wilson, on which, putting to one side its form, I place no weight. In any event even on Mr Wilson’s evidence the agreement does not amount to one where the lawyers will not be paid any costs for acting. The evidence of the arrangement with senior counsel is of the existence of a conditional costs agreement, that is that he will be paid from net sales proceeds. That type of agreement does not offend the indemnity principle.
138 Accordingly, I am satisfied that an order should be made requiring MWP to pay the Australian Representatives’ costs from the date of its participation in this proceeding, 7 May 2020.
139 The second question is whether the Australian Representatives’ costs should be paid by MWP in a lump sum and if so the amount that should be paid.
140 It is appropriate to make a lump sum costs order in this case. This is for a number of reasons. First, the amount of costs claimed by the Australian Representatives is not high. Secondly, given that, they should not be put to the expense and inconvenience of the taxation process. Thirdly, MWP is a non-resident company, and despite the use of technology since the onset of the COVID-19 pandemic to facilitate hearings in this Court, that will likely add to the complexity and cost of any taxation process. Finally, the application for a lump sum costs order needs to be viewed in context. This is an administration where there are limited assets available and where those assets which are available in the jurisdiction have been consumed by costs, given the actions taken by various parties including MWP.
141 I turn then to the quantum claimed by the Australian Representatives. Ms Farmer has prepared a costs summary in accordance with the requirements of the Costs Practice Note setting out the costs incurred by the Australian Representatives and the amount sought. MWP raises a number of matters in relation to the costs summary and the quantum claimed that do not rise beyond mere assertion. MWP does not rely on any admissible evidence, for example from a costs assessor or similarly qualified person, in relation to the percentage discount applied to estimate an amount equating to party/party costs that would likely be recovered, the hourly rates of the solicitors working on the matter or the tasks undertaken. MWP’s reliance on the absence of evidence proving the contents of the National Guide is also misplaced. The National Guide is a publicly available document. It is not necessary for the Australian Representatives to put it into evidence.
142 Ms Farmer’s estimate includes an additional $10,000 for the costs of the hearing on 25 August 2020. However, the matter did not complete on that day and was again listed for hearing on 16 October 2020, the day on which the Second MWP Application was heard and determined, the costs of which are the subject of the October Costs Order in favour of the Australian Representatives, and 19 and 26 October 2020. In those circumstances Ms Farmer’s estimate of costs for the balance of the hearing is conservative and there is no risk of double recovery, having regard to the costs claimed pursuant to the October Costs Order considered below.
143 I am satisfied that an order should be made that MWP pay the Australian Representatives’ costs in a lump sum in the amount of $39,568.05 (plus GST).
The October Costs Order
144 The Australian Representatives seek an order that the October Costs Order, which is for their costs of the Second MWP Application, be paid in a lump sum in the amount of $9,125 plus GST.
145 The Australian Representatives rely on an affidavit affirmed by Ms Farmer on 16 October 2020 which sets out a summary of the costs claimed. Ms Farmer sets out the hourly rates of the lawyers who worked on the matter as well as the daily rate for senior counsel retained to act in the matter. She notes that the total work in progress incurred in preparing for the hearing was $6,739.50 plus GST of which $4,125 was attributable to work undertaken by her. Including senior counsel’s fees, the Australian Representatives’ total costs of the hearing of the Second MWP Application were $13,739.50. However, they seek a lump sum costs orders in a lower amount of $9,125 plus GST, made up of $4,125 for Mills Oakley’s time and $5,000 for senior counsel’s time.
146 MWP responds to the costs claimed in the Third Wilson Affidavit. In summary, Mr Wilson complains that no supporting documents have been provided to substantiate the amounts claimed in the costs summary, that the matter has been “deliberately over-staffed” and that excessive fees and costs have been incurred. Further Mr Wilson says that there is no evidence of any payments having actually been made by SV Partners, no agreed scope of work, no agreed budgets, discounts or fixed fees. He says there is no proper basis for a lump sum costs order, that all costs should be subject to taxation and assessment and, the costs claimed are “excessive, absurd, represent gouging and are disproportionate”.
147 For the reasons already given (see [140] above) I am satisfied that it is appropriate to make an order that the Australian Representative’s costs incurred and payable pursuant to the October Costs Order be paid in a lump sum. I am also satisfied that the amount sought by the Australian Representatives by way of a lump sum as set out in Ms Farmer’s affidavit affirmed on 16 October 2020 is appropriate. Once again MWP does not provide any proper basis to challenge the summary of costs provided or the level of discount applied, which I note is again approximately 30%. Accordingly, I am satisfied that an order should be made that MWP pay the October Costs Order in a lump sum in the amount of $9,125 plus GST.
Set-off
148 The Australian Representatives seek an order that the sum of $18,815 payable by them to MWP (see [111] above) be set-off against the costs of the proceeding awarded on a lump sum basis in their favour (see [143] and [144] above).
149 In the Second Wilson Affidavit Mr Wilson says that there is no right of set-off and no such set-off can be granted or allowed including because of “the prior ranking KHI security rights and interests”. He says that “[t]he errors, negligence and extravagant conduct are those of the [Australian Representatives] and their lawyers” and that the contention that the Australian Representatives are entitled to a set off bears little resemblance to reality and reflects the “on going quest to take all available cash” for the benefit of the Australian Representatives and their lawyers, leaving nothing for MWP and other creditors.
150 The Court has power to order a set-off of costs orders when it is equitable to do so as an incidence of “the Court’s inherent jurisdiction over its suitors’, and it is consistent with the Court’s broader discretion with regard to costs under section 43 of the Federal Court of Australia Act. The power includes the power to set off a costs order against a judgment sum”: see Huang v Deputy Commissioner of Taxation [2020] FCAFC 160 (Huang) at [15].
151 In Miller v Director of Public Prosecution (No 2) [2004] NSWCA 249 Beazley JA recognised that the Court had a discretion to make an order setting off costs orders made in favour of the appellant, Mr Miller, against costs orders made against him in earlier proceedings between the parties relating to the same subject matter. In exercising that discretion at [13]-[17] her Honour said:
[13] The discretion with which the Court is invested is a broad one. Under it the Court is entitled to have regard to a variety of factors including the public interest, the efficient administration of justice, and the conduct of the parties.
[14] In this case, the result of proceedings in the Court is that each party has costs orders in his and its favour. Each party is entitled to have the costs taxed and registered as a judgment in the Court. If the other party fails to pay the costs, the party in whose favour the order is made is entitled to take enforcement proceedings.
[15] Given the existence of the two sets of costs and the legal right to setoff, the sensible and most efficient approach for the parties to take is for them to agree as to the costs each owes the other or if there is no agreement, to have the costs taxed and then the party in debit to pay the difference between the two sets of costs to the other. However, litigation is not always conducive to reason and one party may refuse to agree to a setoff. In that case, each party will be obliged to undertake the various steps involved in formally seeking the recovery of costs under the quasi-litigious processes of preparing a bill of costs and having the bill assessed. Enforcement proceedings will then be necessary if the other party does not pay as specified by the Supreme Court Rules.
[16] It would be hoped, and even assumed, that the Director, as the holder of a public office, would not refuse or fail to pay the costs ordered against him. The same assumption cannot be made in respect of Mr Miller. He may pay immediately. He may not. The Court simply does not know. If he does not pay, the Director will be required to take enforcement action. Any such enforcement action could be protracted. The history of proceedings between these parties would suggest that that is a possibility. Enforcement actions may or may not result in the recovery of the costs. The Court knows from the record of the proceedings that Mr Miller spent in excess of $200,000.00 on his legal costs; at one stage applied for legal aid although with an unknown result; has health problems; and has appeared for himself both in the Local Court and before this Court. These matters would suggest that he may not be able to pay an order for costs, or that payment may not be readily forthcoming.
[17] In my opinion, such a scenario is not desirable and the Court should not facilitate its potentiality. This potentiality would, in my opinion, contribute more to inefficiency in the administration of justice than does any delay by the Director in not seeking to pursue his costs order at an earlier point of time. I should add that I do not attach the same negative significance to the Director’s delay as do Sheller JA and Young CJ in Eq. Given what is known about Mr Miller’s financial circumstances, it would have been reasonable for the Director to hold his hand in relation to costs and not expend legal time, which is costly in itself, and money to pursue a potentially worthless claim.
152 In this case the costs orders in favour of the Australian Representatives are to be paid in a lump sum and have been quantified. While there is no costs order in favour of MWP, there is an order that it be paid an amount from the proceeds of sale of the ACT Property pursuant to s 109(10) of the Bankruptcy Act. As recognised in Huang, the Court has the power to set off a costs order against a judgment sum. The amount to be paid pursuant to s 109(10) of the Bankruptcy Act is analogous to a judgment sum.
153 The discretion to be exercised is a broad one to be informed by the facts of each particular case. Here, I am satisfied that the discretion should be exercised in favour of making the order sought by the Australian Representatives. While it is hoped that MWP would not refuse or fail to pay the costs ordered against it, it is resident outside the jurisdiction with no known assets in the jurisdiction. Given that and the fact that, as I have found, the Australian Representatives have incurred additional costs in the proceeding by reason of MWP’s conduct, it is just that the order should be made. While the Australian Representatives may need to incur further costs in taking enforcement action to recover the balance of their costs if they are not paid by MWP, they should at least have their costs satisfied to the extent possible by reason of an order for set-off.
conclusion
154 One final issue to address is that the amount approved for the Australian Representatives’ remuneration combined with the amount which I have found the Australian Representatives are justified in paying to MWP as a priority payment pursuant to s 109(10) of the Bankruptcy Act is likely greater than the net proceeds of sale of the ACT Property. Accordingly, an order should be made, as sought by the Australian Representatives, that those amounts are to rank pari passu.
155 I will make orders in accordance with these reasons.
I certify that the preceding one hundred and fifty-five (155) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Markovic. |
Associate:
