Federal Court of Australia
Barnden (liquidator), in the matter of MV Developments (Lane Cove) Pty Ltd (in liq) [2021] FCA 1110
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The remuneration of Mr Andrew James Barnden in his capacity as liquidator of MV Developments (Lane Cove) Pty Ltd (in liquidation) (Company) is approved in the amount of $546,429.30 (excluding GST) for work completed between 31 August 2015 and 29 November 2020.
2. Mr Andrew James Barnden in his capacity as liquidator of the Company is entitled to the payment of further reasonable remuneration for work performed, or to be performed, between 18 August 2021 and the conclusion of the liquidation of the Company, up to an amount of $20,000 (excluding GST).
3. Compliance by Mr Andrew James Barnden, in his capacity as liquidator of the Company, with the requirements of r 9.4 and r 9.4A of the Federal Court (Corporations) Rules 2000 (Cth) (as in force immediately before 1 September 2017) is dispensed with.
4. The costs of this application form part of the costs and expenses of the winding up of the Company.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
DOWNES J:
Introduction
1 Mr Andrew James Barnden (Liquidator), liquidator of MV Developments (Lane Cove) Pty Ltd (in liquidation) (Company), seeks an order:
(a) approving his remuneration in the amount of $546,429.30 (excluding GST) for work completed between 31 August 2015 and 29 November 2020; and
(b) increasing his remuneration by a further amount of $20,000 (excluding GST) for work performed or to be performed between 18 August 2021 until the conclusion of the liquidation (being an additional amount to that approved by creditors of the Company at a meeting of creditors held on 17 December 2020) (December meeting of creditors).
2 As the Liquidator was appointed on 31 August 2015, the application is brought pursuant to s 473(3) and s 473(6) Corporations Act 2001 (Cth) (Act), notwithstanding that s 473 has been repealed and replaced with s 60-10(1) Insolvency Practice Schedule (Corporations) (IPS).
3 The Liquidator also seeks an order that the requirements of r 9.2 Federal Court (Corporations) Rules 2000 (Cth) (FCCR) be dispensed with. However, the now repealed r 9.4 and r 9.4A FCCR continue to apply in relation to the remuneration of a liquidator of a company who was appointed before 1 September 2017: see r 17.1(4) FCCR. I have proceeded on the assumption that the Liquidator’s application relates to r 9.4 and r 9.4A FCCR.
4 For the reasons set out below, the orders sought by the Liquidator will be made with some modifications.
Background
5 On 28 July 2011, the Company was incorporated as a special purpose vehicle to manage the day-to-day operations of a property development comprised of 56 lots located at 3 – 9 Finlayson Street, Lane Cove, New South Wales.
6 In around April 2015, the property development was complete upon the registration of lots 1 to 56 in strata plan 85782.
7 On 21 May 2015, a creditor of the Company filed winding up applications in the Supreme Court of New South Wales in respect of the Company and its related entity, MV Developments (Aust) Pty Ltd (MV Aust).
8 On 26 June 2015, the Liquidator and Mr Robert Moodie were appointed joint and several voluntary administrators of the Company in accordance with s 436A of the Act. As at this date, the Company remained the registered proprietor of 28 lots (the Lots).
9 Each of the Lots was secured by a first ranking mortgage to Westpac Banking Corporation Ltd (Westpac) and secondary mortgages to Win Mezz No. 75 Pty Ltd (Win Mezz) and Win Senior No. 123 Pty Ltd (Win Senior), both of which were investment vehicles controlled by the Wingate Group.
10 Between 10 July 2015 and 25 September 2015, ten of the Lots were sold. A total of $4,145,385.79 from the net proceeds of the sales was distributed to Westpac, which facilitated the full repayment of its secured debt. The remaining net proceeds, totalling $5,604,794.45, were distributed to Win Mezz and Win Senior.
11 On 31 August 2015, the Supreme Court of New South Wales ordered that the Company be wound up in insolvency and that the Liquidator and Mr Moodie be appointed as liquidators.
12 Between 6 October 2015 and 18 February 2016, the Liquidator and Mr Moodie sold a further seven of the Lots. These sales resulted in net proceeds of $4,793,724.55 which were distributed to Win Mezz and Win Senior.
13 Between 20 May 2016 and 29 March 2018, Mr Moodie (prior to his resignation on 27 July 2017) and the Liquidator caused the sale of the remainder of the Lots.
14 The net proceeds from those sales, which were not subject to registered mortgages, totalled $4,111,856.11 which was retained by the Company (after accounting for sale costs).
Relevant Legislation
15 The Liquidator was appointed on 31 August 2015. As this appointment was prior to 1 September 2017, the repealed and replaced former s 473 of the Act continues to govern the Liquidator’s remuneration: s 1581(1) of the Act; reg 10.25.01(1) Corporations Regulations 2001 (Cth); Morgan, in the matter of Brighton Hall Securities Pty Ltd [2018] FCA 2029, [7] – [12] (Morgan); White, in the matter of Macro Realty Developments Pty Ltd and Macro Realty Pty Ltd [2019] FCA 1377, [10] (White).
16 Pursuant to s 473(3)(b)(ii) of the Act, where there is no committee of inspection (as in this case) and no resolution of the creditors is passed, a liquidator is entitled to receive remuneration by way of percentage or otherwise as is determined by the Court. That subsection relates to the part of the application relating to the Liquidator’s remuneration for the work performed between 31 August 2015 and 29 November 2020.
17 Further, s 473(6) of the Act enables a liquidator to apply to increase the remuneration which had been determined by resolution of the creditors. That subsection relates to the part of the application relating to the Liquidator’s remuneration for the further work needed to be done to finalise the liquidation.
18 Section 473(10) of the Act provides:
(10) In exercising its powers under subsection (3), (5) or (6), the Court must have regard to whether the remuneration is reasonable, taking into account any or all of the following matters:
(a) the extent to which the work performed by the liquidator was reasonably necessary;
(b) the extent to which the work likely to be performed by the liquidator is likely to be reasonably necessary;
(c) the period during which the work was, or is likely to be, performed by the liquidator;
(d) the quality of the work performed, or likely to be performed, by the liquidator;
(e) the complexity (or otherwise) of the work performed, or likely to be performed, by the liquidator;
(f) the extent (if any) to which the liquidator was, or is likely to be, required to deal with extraordinary issues;
(g) the extent (if any) to which the liquidator was, or is likely to be, required to accept a higher level of risk or responsibility than is usually the case;
(h) the value and nature of any property dealt with, or likely to be dealt with, by the liquidator;
(i) whether the liquidator was, or is likely to be, required to deal with:
(i) one or more receivers; or
(ii) one or more receivers and managers;
(j) the number, attributes and behaviour, or the likely number, attributes and behaviour, of the company’s creditors;
(k) if the remuneration is ascertained, in whole or in part, on a time basis:
(i) the time properly taken, or likely to be properly taken, by the liquidator in performing the work; and
(ii) whether the total remuneration payable to the liquidator is capped;
(l) and other relevant matters.
Relevant Principles
19 The onus is on the liquidator to establish that the claimed remuneration is reasonable and the Court’s function is to determine the remuneration by considering the material provided and bringing an independent mind to bear on the relevant issues: Morgan, [17]; White, [36], Re Mossgreen Pty Ltd (in liq) (ACN 163 353 053) (2019) 140 ACSR 331, 333 [9]; [2019] FCA 1771, [9] (Re Mossgreen); Sanderson v Sakr (2017) 93 NSWLR 459, [54]; [2017] NSWCA 38, [54] (Sanderson).
20 In Re Sakr Nominees Pty Ltd [2017] NSWSC 668 (Sakr Nominees), which was cited with approval in Re Mossgreen at [10], Black J summarised the principles relevant to remuneration determinations under s 473 as follows:
23 … A liquidator is entitled to reasonable remuneration for his or her services and the liquidator bears the onus of establishing that the amount of remuneration they seek is fair and reasonable and, in determining a liquidator’s reasonable remuneration, the Court will have regard to the factors specified in s 473(10) of the Corporations Act, to which I refer further below. The Court must bring an independent mind to bear on the question whether the remuneration sought by a liquidator is fair and reasonable; the liquidator must lead evidence in sufficient detail that the Court can determine that question; and the Court will generally need to be provided with an account in itemised form, setting out at least the details of the work done; the persons who did the work; the time taken to perform the work; the remuneration claimed; and, to the extent relevant, the expenses incurred by the liquidator: ... Proportionality is an important matter in considering the question of whether remuneration is reasonable, and the “value” of a liquidator’s work can include the benefit of resolving the position of creditors and beneficiaries; the benefit to the community of not permitting assets to remain unproductively in the hands of a defunct company for a long period; and can include work that was required to be done, although it did not result in a return to creditors: …
24 Most decisions in both State Supreme Courts and in the Federal Court of Australia have applied time costing as at least the starting point for a calculation of remuneration, although those decisions also emphasise the need for proportionality between the cost of the work done and the value of the services provided: ... There has been a degree of concern as to time-based remuneration, over a considerable period, although it must be accepted that remuneration on that basis is now more common. ... Several recent decisions, of which the previous decision of Brereton J in this case was one, have emphasised the significance of the percentage that a liquidator’s remuneration bears to the level of asset realisations achieved, and applied percentages of recoveries where time-based calculations would have led to unreasonable results: … A percentage of realisations can also be used as a test of whether remuneration claims brought by a liquidator on a time costing basis are reasonable: ...
(citations omitted)
21 In Re Mossgreen at [11], Perram J observed that the principles under the IPS are materially the same as s 473 of the former Act: see also Re Custometal Engineering Pty Ltd (in liq) [2018] VSC 726, [18]. His Honour considered that the matters as summarised in Sanderson and Sakr Nominees and prescribed by the IPS may be distilled into three categories as follows:
(1) The necessary and proper connection between the work performed and the external administration;
(2) The proportionality between the complexity of the external administration and the costs incurred; and
(3) The reasonableness of the billing method of the administrator.
Claim for Past Remuneration
Necessary and proper connection between the work performed and the external administration
22 There were four categories of work performed by the Liquidator which are the subject of the claim for the past remuneration over a period spanning more than five years between 2015 and 2020, namely:
(a) “Assets”, being tasks connected with the sale of the Lots, being the primary assets of the Company;
(b) “Creditors”, being tasks connected with dealing with creditor inquiries, proofs of debt and reporting to creditors;
(c) “Investigations” which includes conducting investigations, reporting to the Australian Securities and Investments Commission (ASIC) and litigation (being litigation in connection with the assets of the Company, in particular);
(d) “Administration” which encompassed tasks such as bank account administration.
Assets
23 The work performed by the Liquidator and his staff in connection with the sale of the Lots is set out in detail in the affidavit of the Liquidator. It included the following:
(a) reviewing, considering and monitoring sale proposals and sale campaigns prepared by a real estate agent;
(b) advising and liaising with a real estate agent regarding advertising, various repairs, consideration of offers and organising inspections;
(c) liaising with a builder and the strata manager about damage to a number of the Lots including water damage, car park damage, and superficial surface damage;
(d) preparing and reviewing an application for a private ruling from the Australian Taxation Office (ATO);
(e) preparing sale contracts which included instructing solicitors to prepare sale contracts, reviewing and amending sale contracts, considering offers and negotiating sale terms, liaising with the respective mortgagees and caveators, and attending to settlement;
(f) responding to various disputes concerning the Lots including engaging lawyers and attending a mediation;
(g) attending to various tasks associated with secured creditors including drafting written communications, engaging in telephone attendances and in person conferences with the representatives of the secured creditors;
(h) attending to various tasks relating to tax issues including liaising with the ATO in respect to overpaid GST liabilities and the significant GST refunds owed to the Company.
24 There is a necessary and proper connection between this work, being the gathering in and realisation of the Company’s assets by the Liquidator, and the liquidation of the Company. Such work is fundamental to the liquidation of the Company in this case especially as it maximises the sale price of the Lots, facilitates their sale and enables the proceeds of the realisation of the sales of the Lots to be distributed to the creditors.
25 The amount claimed by the Liquidator for the work associated with the sale of the Lots, which includes the tasks summarised above and further tasks which are detailed in the affidavit of the Liquidator, is $230,184.50.
Creditors
26 Between 31 August 2015 and 29 November 2020, the Liquidator and his staff performed work associated with creditors of the Company which included attending to general creditor inquiries; reviewing and amending reports to the Wingate Group; reviewing and preparing individual correspondence to creditors and their representatives via facsimile, email and post; preparing reports and circulars to creditors and the associated documents; various tasks associated with convening a meeting of the creditors on 17 December 2020; and receipting and filing proofs of debt.
27 There were 42 proofs of debt submitted over the course of the liquidation. Further, there were complicating factors involved with dealing with a number of these proof of debts, including:
(a) claims arising from cross collateralised debts of the Companies;
(b) creditors relying on unexecuted copies of loan agreements;
(c) claims calculated based upon a default interest rate, and subsequently rolled over to a new loan agreement.
28 There is a necessary and proper connection between this work, being the identification of creditors of the Company and reporting to creditors, and the liquidation of the Company. Such work is the kind of work which a liquidator would ordinarily be expected to perform or is required to perform as part of his role.
29 The amount claimed by the Liquidator for the work associated with creditors of the Company, which includes the tasks summarised above as well as further tasks which are detailed in the affidavit of the Liquidator, is $70,694.
Investigations
30 Between 31 August 2015 and 29 November 2020, the Liquidator and his staff:
(a) engaged in a review of various legal and contractual issues;
(b) reviewed proofs of debt and supporting documents for investors and secured creditors;
(c) conducted certain investigations such as investigations into intercompany loan accounts, potential voidable transactions and insolvent trading, and taxation debts;
(d) prepared a solvency report;
(e) undertook tasks associated with preparing and lodging statutory investigation reports pursuant to s 533 of the Act.
31 There is a necessary and proper connection between this work, which includes the assessment of proofs of debt and the investigation of the Company’s affairs, and the liquidation of the Company. Such work is the kind of work which a liquidator would ordinarily be expected to perform or is required to perform as part of his role.
32 In addition, the Liquidator and his staff undertook tasks associated with litigation in which the Company and the Liquidator were involved, which litigation is described in further detail in the affidavit of the Liquidator.
33 This included proceedings in which the purchasers of Lots 49 and 50 commenced proceedings in the Supreme Court of New South Wales seeking an extension of the caveats which they had lodged, and specific performance against the Company of their respective sale contracts. Ultimately, there were five cross-claims filed by various lenders and purchasers. Three of the cross-claims were later settled resulting in a deed of settlement and release being executed on 14 November 2017. The remaining two cross-claims were the subject of orders made on 8 March 2018: see Lum v MV Developments (Lane Cove) Pty Ltd (in liquidation) [2018] NSWSC 247.
34 There is a necessary and proper connection between this work, which relates to the realisation of the assets of the Company, and the liquidation of the Company.
35 The amount claimed by the Liquidator for this category of work, which includes the tasks summarised above and further tasks which are detailed in the affidavit of the Liquidator, is $172,344.00.
Administration
36 This category of work which was performed by the Liquidator and his staff between 31 August 2015 and 29 November 2020 relates to planning and review of various documents, bank account administration and the preparation and lodgement of statutory forms with the ASIC and the ATO.
37 There is a necessary and proper connection between this work and the liquidation of the Company. Such work is the kind of work which a liquidator would ordinarily be expected to perform or is required to perform as part of his role.
38 The amount claimed by the Liquidator for this category of work, which includes the tasks summarised above and further tasks which are detailed in the affidavit of the Liquidator, is $73,206.80.
Conclusion
39 For these reasons, I am satisfied there is a necessary and proper connection between the work performed by the Liquidator and the liquidation of the Company. Further, for the same reasons, I am satisfied that the work performed by the Liquidator was reasonably necessary: see s 473(10)(a).
Proportionality of the work performed to the remuneration claimed
40 In Templeton v Australian Securities and Investments Commission (2015) 108 ACSR 545; [2015] FCAFC 137 (Templeton), the Court observed (in relation to a remuneration determination sought by receivers) at [31] – [34] that:
The question of proportionality is a well recognised factor in considering the question of reasonableness. As the analogue of s 425(8) and like provisions expressly state, in having “regard to whether the remuneration is reasonable”, the Court can take into account, inter alia, the quality and complexity of the work and the value and nature of any property dealt with as well as the question of time reasonably spent…
The question of proportionality in terms of the work done as compared with the size of the property or activity the subject of the insolvency administration or the benefit or gain to be obtained from the work is an important consideration in determining overall reasonableness…
Generally, in looking at proportionality, the value of the services rendered must be considered. We would endorse the observations of McLure JA in Conlan as liquidator of Rowena Nominees Pty Ltd (in liquidation) v Adams (2008) 65 ACSR 521 at [47] where her Honour observed:
As to the performance of a task reasonably embarked upon, the work done must be proportionate to the difficulty or importance of the task in the context in which it needs to be performed. This is what is encompassed in assessing the value of the services rendered. Using an example from the law, the time spent by an appropriately qualified and experienced practitioner in drafting a statement of claim should be proportionate to the amount in issue.
Finally, even if one was not to address proportionality as an express factor, nevertheless its absence may have forensic significance in determining reasonableness. Another way to look at proportionality can be to conclude from a lack of proportionality between the cost of the work done relative to the value of the services provided that there has been overcharging or excessive remuneration claimed (see Thackray v Gunns Plantations Ltd (2011) 85 ACSR 144 at [64] per Davies J).
41 Counsel for the Plaintiffs relied upon the following passage from Templeton at [52], where the Court stated:
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.
42 For the following reasons, I am satisfied that the amount claimed is proportional to the work performed.
43 First, while the overall amount claimed for past remuneration is a large sum on its face, it relates to work performed over a period of more than five years. Further, the total amount has been broken down into components, and the amount claimed for each component is proportionate to the nature and quality of the tasks performed by the Liquidator for that component (having regard to the detailed evidence of the Liquidator), the nature of the assets of the Company, the importance of the tasks performed by the Liquidator to enable the assets of the Company to be realised and the period of time over which the work was performed: see s 473(10)(c) and 473(10)(d). Those components are:
Task | Unapproved hours | Unapproved amount (excluding GST) |
Time period | 31 August 2015 to 29 November 2020 | |
Assets | 444.9 | $230,184.50 |
Creditors | 160.2 | $70,694.00 |
Investigation | 331.2 | $172,344.00 |
Administration | 188.9 | $73,206.80 |
TOTAL | 1,125.2 | |
44 Second, the work performed by the Liquidator resulted in the realisation of the assets owned by the Company for significant sums in excess of (at least) $8,000,000, resulting in substantial returns to secured creditors: see s 473(10)(h).
45 Third, the liquidation was complicated by what appears to be difficult and protracted litigation, which added to the time required to be spent on, and increased the complexity of, the tasks in the liquidation: see s 473(10)(e).
46 Fourth, the liquidation was also complicated by other factors such as needing to rectify damage to a number of the Lots to enable them to be sold, seeking a private ruling from the ATO, responding to various disputes, and dealing with secured creditors. These matters added to the complexity of the issues in the liquidation, which also supports the proportionality of the remuneration sought: see s 473(10)(e).
Reasonableness of the billing method of the Liquidator
47 For the following reasons, the billing method used by the Liquidator was reasonable in this case.
48 First, the evidence before the Court includes a guide to the hourly rates charged by the Liquidator and his staff (rates schedule). The Liquidator deposes that the rates in the rates schedule are consistent with general industry standard and that he has applied the original year 2016 rates throughout the entire period of his appointment. I accept this evidence.
49 Second, the Liquidator considered that it was appropriate, given the nature of his appointment, to calculate his remuneration on a time-charged basis. That is, he determined that it was appropriate to calculate his (and his staff’s) remuneration by reference to the hourly unit rates (as set out in the rates schedule) which is then applied to the time spent. Such an approach enabled the Liquidator to record with particularity the tasks which were undertaken and the time spent by himself and his staff on each task. Experience shows that this is the usual approach taken by liquidators, particularly in significant liquidations like the one in this case. I agree that it was appropriate to calculate the remuneration on a time-charged basis for the reasons given by the Liquidator.
Other matters
50 The following relevant matters also support a finding that the remuneration claimed by the Liquidator is reasonable: see s 473(10)(l).
51 First, tasks were generally distributed amongst the Liquidator’s staff by the Liquidator according to their position (which reflected the person’s experience and rate) and the level of difficulty or complexity of, and the corresponding level of skill required for, the relevant task. This tells against a finding that the remuneration claimed is excessive.
52 Second, the Liquidator and his staff utilised certain software to record the tasks they had undertaken and the time taken to perform those tasks and other relevant data. This is an efficient and appropriate means of creating a contemporaneous record of the work being performed, which record is more likely to be accurate.
53 Third, the Liquidator made adjustments to the amounts contained in the time-sheet data including writing off amounts which appeared to him to be duplicates or in relation to time which appeared to him to have been incurred in an “inefficient fashion” (such as where senior staff had performed tasks which could have been performed by a more junior staff member). This tells against a finding that the remuneration claimed is excessive.
54 Fourth, the Liquidator reviewed a schedule containing the time-sheet data for the purposes of this application and deposed that he was satisfied that the time recorded accurately reflected work that was proper and necessary for the conduct of the liquidation of the Company and that he did not, aside from the adjustments made by him as referred to above, identify any work that was unreasonable to perform, was performed by an inappropriate person, or which appeared to him to have taken an unreasonable period of time. I accept this evidence.
Conclusion
55 For these reasons, I am satisfied that the remuneration sought by the Liquidator for the period of 31 August 2015 to 29 November 2020 in the amount of $546,429.30 (excluding GST) is fair and reasonable and ought to be allowed.
Claim for Future Remuneration
56 A resolution that the future remuneration of the Liquidator from 30 November 2020 to the conclusion of the liquidation up to a capped amount of $50,000 (exclusive of GST) was approved at the December meeting of creditors, “subject to the right of the Liquidator to seek further fee approval should the need arise”.
57 The Liquidator’s remuneration for the period from 30 November 2020 to 12 August 2021 totals $47,922.50 (excluding GST), which was calculated on a time-charged basis at the original year 2016 rates. Again, the Liquidator has conducted a review of his own and his staff’s time and identified a number of entries in the time-sheet data that may have been duplicates or that appeared to be time that may have been incurred in an inefficient fashion, which resulted in a write off of $8,308.50. This leaves $2,077.50 of the approved amount of $50,000 and necessitates approval of a further amount, having regard to the work required to be performed by the Liquidator as referred to below.
58 The Liquidator’s view is that the work required to be carried out from 18 August 2021 onwards, in order to give effect to the distribution of surplus and other ancillary matters to conclude the liquidation of the Company, includes the following tasks:
(a) work associated with this application;
(b) disbursement of the residual funds (net of priority costs of liquidation);
(c) reviewing amounts due to various secured creditors/caveators;
(d) maintaining creditor enquiry details;
(e) reviewing and preparing correspondence to creditors and their representatives;
(f) liaising with creditors regarding outstanding debts and the liquidation process;
(g) paying outstanding costs of the liquidation;
(h) performing bank reconciliations;
(i) preparation of receipt and payment forms;
(j) preparing and lodging Business Activity Statements with the ATO;
(k) closing the bank account;
(l) cancelling the Company’s registration with the ATO;
(m) preparing and lodging ASIC forms 5603, 578, 505 and potentially 5602;
(n) completing finalisation checklists and job checklists; and
(o) transferring job files to storage.
59 The Liquidator deposes that, based upon his experience (as set out in his affidavit), he considers the above work to be necessary to complete the winding up process of the Company. He also considers that the amount up to $20,000 excluding GST would represent reasonable remuneration in respect of the above work on the assumption that there are no intervening and unforeseen issues.
60 The Liquidator has also deposed that, in the event there are any remaining funds at the conclusion of the liquidation, he proposes to remit that surplus to an identified creditor.
61 Having regard to the evidence of the Liquidator set out above, I am satisfied that the work which has been or will be performed after 18 August 2021 until the conclusion of the liquidation was reasonably necessary or is likely to be reasonably necessary: see s 473(10)(a) and (b).
62 Further, I accept the evidence of the Liquidator’s opinion, which is based on his experience as set out in his affidavit, that an amount up to $20,000 excluding GST would represent reasonable remuneration in respect of this work.
63 I am therefore satisfied that the amount of remuneration approved by the creditors at the December meeting of creditors ought to be increased by a further amount of up to $20,000 excluding GST.
Whether Compliance with Federal COurt (Corporations) rules Should be Dispensed with
64 The evidence discloses that the Liquidator has sought the creditors’ approval of his claimed remuneration for the period of 31 August 2015 to 29 November 2020 on two prior occasions and, on each occasion, he has put the creditors on notice that an application to the Court would be made for approval of the remuneration amount if their approval was not obtained. The creditors included Mr Victor Fong, the sole shareholder of the Company.
65 Prior to the December meeting of creditors, the creditors were sent a remuneration report dated 30 November 2020, which attached the receipts and payments for the period of 31 August 2015 to 29 November 2020, and which identified the amount of remuneration sought.
66 At the December meeting of creditors, only three creditors voted, and, of those, only one voted against approval of the remuneration amount then being claimed by the Liquidator (being $547,453.80) for the period of 31 August 2015 to 29 November 2020. The resolution was not carried.
67 As recorded in the minutes of the December meeting of creditors, which were filed with ASIC, the Liquidator stated at that meeting that an application to the Court would be brought by him seeking approval of the remuneration claimed for the period of 31 August 2015 to 29 November 2020 together with legal costs of the application.
68 In a report to creditors dated 17 May 2021, which attached a remuneration report of that date, the Liquidator advised that he would be seeking the creditors’ approval of his remuneration for the period of 31 August 2015 to 29 November 2020 in the sum of $546,429.30 exclusive of GST, taking into account that an amount of $1,024.50 had been written off.
69 This report contained an underlined paragraph which advised of the Liquidator’s intention to bring an application to the Court to seek approval of the remuneration for the period of 31 August 2015 to 29 November 2020 if the resolution was not approved by the creditors.
70 At the meeting of creditors held on 4 June 2021 (June meeting of creditors), the only creditor which had voted against approval of the remuneration at the December meeting of creditors voted in favour of the resolution that the remuneration of the Liquidator be approved.
71 However, at the June meeting of creditors, eight creditors voted against approval of the remuneration. None of these creditors had attended the December meeting of creditors. Three of these creditors attended the June meeting of creditors in person, and one of those held the proxies of the other creditors who voted against the resolution and who did not attend the meeting in person.
72 As recorded in the minutes of the June meeting of creditors, the Liquidator advised the meeting that an application to the Court would be brought by him seeking approval of the remuneration claimed for the period of 31 August 2015 to 29 November 2020 together with legal costs of the application.
73 Ms Wang, who is a senior manager employed by the Liquidator’s firm, affirmed an affidavit on 7 September 2021 which has the same content as the draft which was before the Court at the hearing on 6 September 2021.
74 In summary, the affidavit sets out the work which Ms Wang performed to update the postal and/or electronic addresses for each of the known (purported) creditors of the Company as at 18 August 2021, and to provide the creditors with notification of this proceeding and documents relating to this proceeding.
75 In particular, Ms Wang’s affidavit contains a table of creditors and their respective (updated) postal and email addresses, where available.
76 The details of four individuals (including Mr Fong) who claim to be creditors are not included in the table because mail which was posted to them had been returned and they had not provided an updated postal or electronic address to the Liquidator.
77 Each creditor of the Company who had provided an electronic address to the Liquidator was sent an email by Ms Wang on 19 August 2021 which contained a copy of the Originating Process (commencing this proceeding), a copy of the body of the affidavit of the Liquidator, a DropBox hyperlink to the exhibits to that affidavit and a circular to creditors advising that the recipient can email Ms Wang to be advised of the hearing date of the application. Only ten creditors in the table had not supplied an email address.
78 On 19 August 2021, the same documents as referred to in the previous paragraph of these reasons were printed and posted to the creditors of the Company listed in the table who had provided a postal address. This included the ten creditors who had not supplied an email address.
79 Importantly, the eight creditors who voted against the remuneration resolution at the June meeting of creditors were either sent these documents by post and email (Moral Success Development Pty Ltd, Hui Zhong Xu, Ning Ji Fu, George Wu, Qi Hua Shen and Tom Hui Zhong Yu) or by post (Peixin Wang and Yang Wen Rong aka Yang Wang Rong).
80 On 19 August 2021, the ATO was also provided with a copy of the circular to creditors.
81 The hearing date of the application was 6 September 2021, which was more than two weeks after the date on which the documents were emailed and posted by Ms Wang.
82 No creditor sought to appear at the hearing to oppose the orders sought by the Liquidator.
83 Rules 9.4 and 9.4A FCCR include a process whereby certain documents (including affidavit material) are required to be served on a limited subset of creditors of the company as well as members of the company which hold a prescribed level of shareholding. In the case of r 9.4, the creditor or contributory so served may then serve a notice of objection. In the case of r 9.4A, the creditor or contributory so served may then serve a notice of intention to appear at the application. If a relevant notice is served by a creditor or contributory, then that person must be served with a copy of the application which seeks a remuneration determination (in the case of r 9.4) or a review of the amount of the remuneration (in the case of r 9.4A). The liquidator is also required to file an affidavit which includes certain information.
84 It is self-evident that the processes under r 9.4 and r 9.4A FCCR have not been followed in this case.
85 Rather and to the extent practicable, the Liquidator has served a copy of the application and a copy of his affidavit upon all purported creditors, which exceeds the requirements of r 9.4 and r 9.4A.
86 Further, the creditors (of which one was the sole shareholder of the Company) were informed that an application for approval of the remuneration for the period of 31 August 2015 to 29 November 2020 would be brought by the Liquidator. They were so informed at the December meeting of creditors and June meeting of creditors, as well as in the report to creditors dated 17 May 2021.
87 This means that those persons with an interest in the question of the Liquidator’s remuneration in connection with the liquidation of the Company were put on notice that the Court would be making a determination with respect to that issue and could have taken steps to be heard on the application, but elected not to do so.
88 Pursuant to r 1.32 Federal Court Rules 2011 (Cth), the Court may make any order that the Court considers is appropriate in the interests of justice, and such an order can include an order that compliance with the requirements of the FCCR be dispensed with: see Deputy Commissioner of Taxation v Starpicket Pty Ltd (No 2) [2013] FCA 699 at [11] – [13].
89 Having regard to the finding in paragraph 87 of these reasons, it is appropriate in the interests of justice that I make an order that compliance by the Liquidator with the requirements of r 9.4 and r 9.4A of the FCCR be dispensed with.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Downes. |
Associate:
