Federal Court of Australia

Heenan, in the matter of Ruby Apartments Pty Ltd (in liq) v Ralan Paradise No. 1 Pty Ltd (in liq) (No 2) [2021] FCA 1314

ORDERS

In these Orders, “Trust Account” means the Trust Account as defined in paragraph 6.1(a) of the affidavit of Timothy Joseph Heenan filed 1 June 2020.

THE COURT ORDERS THAT:

1.    Pursuant to s 424(1) Corporations Act 2001 (Cth), the Court directs that the plaintiff would be justified:

(a)    in entering into the compromise reached with the 6th, 7th, 8th, 9th, 12th, 14th, 15th, 16th, 20th, 21st, 22nd, 29th, 33rd, 36th, 37th, 41st, 42nd, 43rd, 44th, 49th, 50th, 51st, 56th, 57th, 58th, 59th, 60th, 67th, 69th, 71st, 82nd, 86th, 89th, 90th, 96th, 97th, 98th, 99th, 100th, 101st, 102nd, 106th, 107th, 108th, 116th, 118th, 119th, 122nd, 125th, 126th, 129th, 132nd, 133rd, 136th, 138th, 139th, 145th, 146th, 148th, 154th, 169th, 171st, 193rd, 198th and 199th defendants at and following the mediation conducted before Judicial Registrar Schmidt as mediator and giving effect to its terms (and in causing the third defendant to do so); and

(b)    distributing the fund held in the Trust Account in the way proposed in Schedule 2.

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

REASONS FOR JUDGMENT

DOWNES J:

Introduction

1    On 1 August 2019, Mr Timothy Joseph Heenan, Mr Jason Mark Tracy and Mr Salvatore Algeri (receivers) were privately appointed by Win Mezz No. 196 Pty Ltd (Win 196) as the receivers and managers of property of the third defendant, Ruby Apartments Pty Ltd (receivers and managers appointed) (in liquidation) (Ruby Apartments).

2    This proceeding was commenced by an Originating Process filed on 1 June 2020 pursuant to which the receivers applied for judicial advice under s 424 Corporations Act 2001 (Cth) (Act) in relation to the proposed distribution of funds held in a trust account as defined in paragraph 6.1(a) of the affidavit of Timothy Joseph Heenan filed 1 June 2020 (trust account).

3    After the proceeding was commenced, some of the potential claimants on the funds held in the trust account opposed the proposed manner of distribution. Following a mediation held before a Judicial Registrar of this Court in July 2021, the receivers entered into a compromise with those claimants (Compromise). The Compromise is subject to the Court giving judicial advice to the receivers that they would be justified in entering into it and giving effect to its terms (and in causing Ruby Apartments to do so).

4    The Compromise includes agreement as to the manner of distribution of the funds in the trust account. Three different versions of a table which set out a proposed list of recipients and amounts to be paid to those recipients from the trust account were provided on 21 October 2021 and are contained in exhibit 2. A key difference between the versions turned on whether the second defendant, Ruby Collection Management Pty Ltd (in liquidation) (RCM), receives a distribution.

5    For the reasons below, the orders sought by the receivers will be made by reference to one of the versions contained in exhibit 2, being the version which includes a distribution to RCM.

Relevant Facts

Commencement of these proceedings

6    Prior to 1 August 2019, when the receivers were appointed, Ruby Apartments carried on business as a letting agent engaged in letting 242 residential apartments in a high-rise block in Surfers Paradise, called the Ruby One Tower (Business). The primary asset of the Business was the management rights of the apartments which rights were derived from certain written agreements. Certain fees were payable to Ruby Apartments pursuant to these agreements.

7    The receivers caused Ruby Apartments to trade the Business as a going concern with a view to selling it to a third party purchaser. The Business was sold to the fourth defendant, Ruby Management Surfers Paradise Pty Ltd (RMSP) in late 2019, and that sale completed on 21 January 2020.

8    The receivers have control over $1.8 million in the trust account as a result of having taken control of that account on appointment and then traded on the Business to 30 September 2019 using the trust account (the fund).

9    These proceedings were commenced because there was disagreement as to whether, and the manner in which, the fund should be distributed to:

(a)    the receivers;

(b)    apartment owners in the Ruby One Tower (the 1st and 5th to 200th defendants);

(c)    service providers (RMSP and RCM);

(d)    some former guests (the 201st to 235th defendants); and

(e)    some former tenants of apartments who are entitled to receive bond refunds (the 236th to 240th defendants).

10    As the defendants have interests (or claims to an interest) in the fund held by the receivers, they were joined as defendants. As regards service of the defendants:

(a)    the 1st to 5th, 35th, 149th and 184th defendants agreed to accept service under r 10.28 Federal Court Rules 2011 (Cth);

(b)    the 6th, 7th, 8th, 9th, 12th, 14th, 15th, 16th, 20th, 21st, 22nd, 29th, 33rd, 36th, 37th, 41st, 42nd, 43rd, 44th, 49th, 50th, 51st, 56th, 57th, 58th, 59th, 60th, 67th, 69th, 71st, 82nd, 86th, 89th, 90th, 96th, 97th, 98th, 99th, 100th, 101st, 102nd, 106th, 107th, 108th, 116th, 118th, 119th, 122nd, 125th, 126th, 129th, 132nd, 133rd, 136th, 138th, 139th, 145th, 146th, 148th, 154th, 169th, 171st, 193rd, 198th and 199th defendants appeared, by their solicitors, William Roberts Lawyers (Represented Defendants);

(c)    by the time of the hearing on 7 October 2021, the 34th, 52nd, 81st, 88th, 117th and 135th defendants were also represented by William Roberts Lawyers;

(d)    the remaining defendants are deemed to have been served pursuant to the Orders made by Justice Reeves on 24 December 2020: see Heenan v Ralan Paradise No 1 Pty Ltd (recs and mgrs apptd) (in liq) (2020) 149 ACSR 205; [2020] FCA 1878.

11    Other than the Represented Defendants, no defendant appeared at the hearing on 7 October 2021.

The Compromise

12    On 22 July 2021, Judicial Registrar Schmidt mediated the dispute between the receivers and the Represented Defendants. The mediation was not finalised on 22 July 2021 and negotiations continued. On 13 September 2021, the Compromise was reached between the receivers and the Represented Defendants.

13    The terms of the Compromise provided:

(1)     Distributions are to be made in accordance with the agreed revised schedules, noting the following revisions to the original proposed distributions:

(A)     “August and September Management Fees” are to be reduced from $376,930.73 to $362,575.99;

(B)     the represented defendant’s legal costs (up to $210,000) are to be treated as “Administration and Distribution Expenses”, to be incurred proportionally by other distributions;

(C)     the plaintiffs will limit their own “Administration and Distribution Expenses” to $395,973.76 (as per the originating application);

(D)     the plaintiffs will forgo their entitlement to the “July Management Fees”, and this sum is to be paid proportionally to all apartment owners (including Ralan Paradise No. 1) based on their performance undertakings (or in the case of Ralan Paradise No. 1 a comparable rate) without any deduction for Administration and Distribution Expenses;

(E)     the plaintiffs will forgo their entitlement to the “August and September Sundries” (as calculated in the attached TJH58), and this sum is to be paid proportionally to all apartment owners (including Ralan Paradise No. 1) based on their performance undertakings (or in the case of Ralan Paradise No. 1 a comparable rate).

(2)     Prior to the final hearing, the represented defendants will file an affidavit confirming the total amount of the represented defendants’ legal costs.

(3)     Prior to the final hearing, the plaintiffs will file a proposed draft final order which includes a revised schedule identifying the distributions to be made to each defendant. In this schedule, the proposed distribution to the represented defendants will appear as a single entry which shows the total figure payable to the represented defendants. This sum is to be paid into an account specified by the represented defendants.

(4)     “July Sundries” ($115,256.15 after the deduction of Administration and Distribution Expenses)

(A)     “July Sundries” are to be distributed to either Ruby Collection Management or proportionally to the apartment owners (other than Ralan Paradise No. 1) based on their performance undertakings, including potentially by making up the shortfall in the performance undertaking distribution in July 2019 of $112,013.96 (as set out in the attached document titled “July payments – TJH46 updated”), with the balance to be distributed proportionally to the apartment owners (other than Ralan Paradise No.1). The Represented Defendants will seek that the distribution be to the apartment owners (other than Ralan Paradise No.1).

(B)     The plaintiffs will make the following submission to the Court with respect to the July Sundries: The evidence which has been filed by the plaintiffs to date does not establish that there was any formal agreement between Ruby Apartments and Ruby Collection Management, whereby the amounts which were received for the payment of Sundries belonged to or were the property of Ruby Collection Management.

(C)     The plaintiffs will adopt a neutral position with respect to the July Sundries. Should Grant Thornton appear and/or make a claim to the July Sundries, the plaintiffs will not support or object to Grant Thornton’s claim.

(D)     If the Court determines that the plaintiffs are entitled to this sum, the plaintiffs will agree to distribute this sum proportionally amongst all apartment owners (other than Ralan Paradise No. 1) with reference to their performance undertakings.

(E)    The plaintiffs will inform MinterEllison, the solicitors for Grant Thornton, of these settlement terms.

(5)     The Represented Defendants will advise the Court that they support the proposed distribution plan (one that is in accordance with these settlement terms) and if necessary, will advise the Court that they do not wish to make any submissions (other than on the claim for the July Sundries). Naturally, this will not in any way affect or restrict:

(A)     the Represented Defendants’ reserved rights under paragraph 6 below;

(B)     the Represented Defendants’ ability to seek or claim the “July Sundries”; or

(C)     the Represented Defendants’ legal practitioners’ duty to assist the Court if called upon by the Court to do so.

(6)     The settlement is subject to the Court giving judicial advice to the plaintiffs that they would be justified in: (a) entering into it; and (b) giving effect, and causing Ruby Apartments to give effect, to its terms. If such judicial advice is not given, then there will be no settlement.

14    For the purposes of deciding this application, it is appropriate to provide brief reasons which address the issues which were in dispute and how they have been resolved by the Compromise.

July Management Fees

15    The first defendant (Ralan Paradise No 1) owned 48 of the 243 residential apartments in the Ruby One Tower. The letting pool was comprised of those 48 apartments plus 194 apartments which had been sold to investors. One further apartment was owner-occupied.

16    For each of the residential apartments in the letting pool, there was a letting agreement (a Form 6 Agreement). They each contained similar terms to the effect that for 24 months:

(a)    the investors/owners of the apartments would be paid a fixed monthly payment (the Performance Undertaking), the amount of which was stated in the Form 6 Agreement, irrespective of the actual letting income collected by Ruby Apartments for a month; and

(b)    for Ruby Apartments to keep, as a management fee, any amount received from the letting of an investor’s apartment in a month which was in excess of the amount of the Performance Undertaking.

17    No Performance Undertaking was payable under the Form 6 Agreements between Ruby Apartments and Ralan Paradise No 1.

18    In July 2019, Ruby Apartments let some apartments extensively, generating management fees of $87,575.99 (July Management Fees), whereas other apartments were not let at all or very much. It was not controversial that this conduct was in breach of the Form 6 Agreements.

19    The Represented Defendants contended that, in addition to its contractual obligations, Ruby Apartments was also subject to a fiduciary duty to act fairly in letting the apartments in the letting pool. Their argument was that the fiduciary duty had been breached, such that a constructive trust should be imposed over the July Management Fees to benefit the owners who would not receive the amount of their Performance Undertaking for July.

20    The receivers, while not admitting the existence of the fiduciary duty, contended that, if the duty did exist, such that the July Management Fees could be regarded as being available to be the subject of a constructive trust, the result was a competition between the beneficiaries of a constructive trust on the one hand, and the security interest of Win 196 on the other.

21    Under the Compromise, the July Management Fees will be paid to apartment owners in accordance with Schedule 2.

August and September Management Fees and Charges

22    After the receivers were appointed, they traded on the letting business using the trust account for two months, August and September, before they started using new software to run the business, with a different trust account, on 1 October 2019. The receivers’ expenses of carrying on the letting business in August and September were $734,108.00 (August and September Management Fees and Charges).

23    Their management of the letting pool during August and September benefitted both the apartment owners and Win 196 (the former by generating rent; the latter by preserving the value of the Business to be sold and apartments owned by Ralan Paradise No 1 over which Win 196 held security).

24    Under the Compromise, the amount for the August and September Management Fees and Charges to be paid to the receivers has been reduced to $362,575.99, being slightly less than half of the $734,108.00 in expenses incurred by the receivers (who were funded by Win 196) in trading on the Business in August and September.

Administration and Distribution Expenses

25    The trust account which the receivers took over when they were appointed had not been properly kept. The software which Ruby Apartments used to conduct its letting business, being the Amadeus Software System, recorded the total sum received each day from the letting of apartments, but did not identify the amount received for each individual owner or the type of income (which could be a deposit, letting income or sundries income), with the result that there was no record kept of the letting income held in the trust account for each owner. The Amadeus Software System was replaced with a new software system on 1 October 2019. At the same time, the former trust account was quarantined.

26    When this proceeding was commenced, the receivers estimated that their remuneration and expenses for reconciling the trust account so as to ascertain the respective interests of each defendant, and for obtaining judicial advice that they would be justified in distributing the fund as they proposed, would be approximately $395,973.69 (Administration and Distribution Expenses).

27    However, the Administration and Distribution Expenses have grown to be considerably more than $395,937.69 as a result of unanticipated expenses with respect to service of the defendants in this proceeding, the opposition of the Represented Defendants to the relief sought by the receivers and unforeseen delays. As at 6 July 2021, the receivers’ revised estimate of the Administration and Distribution Expenses was $644,453.50.

28    To permit the fund to be distributed, it was necessary for the receivers to work out the respective entitlements of the defendants to that fund and to do so having regard to the actual lettings and other activities which produced the fund. The work was carried out by the receivers because the non-compliant way in which Ruby Apartments had kept the trust account did not allow those respective entitlements of the defendants to be identified.

29    For the reasons set out below, this proceeding was also necessary. The receivers cannot have been expected to distribute the fund without having the protection of judicial advice that they were justified in distributing it in a particular way.

30    Under the Compromise, the receivers have agreed to limit their claim for Administration and Distribution Expenses to $395,973.69 but also pay the legal costs of the Represented Defendants of and incidental to this proceeding up to an amount of $210,000.00, which costs the receivers have agreed to treat as further Administration and Distribution Expenses.

The July Letting Balance

31    The gross lettings balance for July 2019 was $747,593.62 (July Letting Balance).

32    With the Administration and Distribution Expenses of $605,973.69 (including the $210,000.00 payable to the Represented Defendants for their costs) applied pro rata to the various distributions to be made, the agreement reached under the Compromise is that the July Letting Balance is reduced to $432,632.95, to be paid to apartment owners in accordance with Schedule 2.

The July Sundries Payment Balance

33    The amount of $175,832.46 was received from guests into the trust account for sundries in July 2019 (July Sundries). RCM provided the sundries to Ruby Apartments which were then used and consumed by guests; for example, food, beverages and room service. Payments made by guests for sundries were received into the trust account by Ruby Apartments and mixed with other receipts – usually by way of a single receipt for both letting income and sundries.

34    The evidence before the Court did not establish that there was any formal agreement between Ruby Apartments and RCM that amounts received into the trust account from guests for sundries in July belonged to, or were the property of, RCM. There was evidence, however, of a course of conduct whereby RCM supplied certain goods and services to Ruby Apartments, and Ruby Apartments would make regular payments to RCM from the trust account for the provision of sundries.

35    On 1 October 2021, RCM’s liquidators caused their solicitors to write a letter to the receivers’ solicitors (MinterEllison Letter). The MinterEllison Letter, which is in evidence, states that RCM is entitled to the July Sundries. It is stated that the sundries constituted non-trust money within the meaning of s 18(2) Agents Financial Administration Act 2014 (Qld) (AFA Act).

36    There was no dispute that the AFA Act applied in relation to the trust account. However, to understand the argument, one must have regard to earlier sections of the AFA Act.

37    Section 15(1)(a) AFA Act relevantly provides that s 16 applies if an amount is received by an agent for a transaction. In this case, various amounts were received from guests by way of payment for rent and sundries, such as food.

38    Section 16 AFA Act relevantly provides that an agent must pay the amount to the agent’s general trust account.

39    Section 18(1) of the AFA Act relevantly provides that an agent must not pay to a trust account an amount other than an amount that must be paid to the account under s 16.

40    Section 18(2) of the AFA Act relevantly provides that:

… if the agent receives an amount consisting of trust money and other money (the non-trust money) that can not (sic) be divided, the agent must –

(a)    pay the whole amount to the agent’s general trust account; and

(b)    draw the non-trust money from the account within 14 days after the money becomes available for drawing.

Example of amount consisting of trust money and non-trust money –

A property agent receives a single cheque for rent and services provided by the property agent, including, for example, television rental.

Maximum penalty—200 penalty units or 1 year’s imprisonment.

41    “Trust money” is defined in Schedule 1 to the AFA Act as including “an amount that was, or ought, under this Act, to have been, deposited in a trust account by an agent”.

42    The example given in s 18(2) AFA Act itself is apposite. That is, it gives an example of an agent receiving an amount which represents rent (trust money) and services (non-trust money).

43    By analogy, an amount which represents payment for food, beverages and room service would be an amount for services which constitutes non-trust money within the meaning of s 18(2) AFA Act. Further, s 18(2) not only permits the payment out of the trust account of the non-trust money, it mandates it and there are penalties for non-compliance.

44    By contrast, there is insufficient evidence to enable the Court to characterise the July Sundries as trust money within the meaning of Schedule 1 to the AFA Act such that it should be distributed to the apartment owners. There is no evidence that the payments for sundries were required to be paid into the trust account such that these payments “ought” to have been deposited into the trust account or that the apartment owners had any lawful entitlement to them.

45    As stated in the MinterEllison Letter:

Not only is the assertion by the represented lot owners that such payments ‘were made and received for the benefit of the Owners’ without legal or factual basis, it defies commercial reality. It makes no commercial sense that [RCM or Ruby Apartments] would agree to:

(a)    supply to guests of the hotel an undefined and unlimited amount of food, beverages and supermarket goods; and

(b)    hold all revenue (not just profit) for the benefit of lot owners,

in circumstances where lot owners have no obligation to make payment for the cost of supply of such goods.

46    The better view on the available evidence is that the July Sundries constitutes non-trust money within the meaning of s 18(2) AFA Act with the consequence that the amount of the July Sundries should not remain in the trust account and should not be included in the fund for distribution to apartment owners. Instead, it should be paid to RCM (after deducting a pro rata amount in payment of the Administration and Distribution Expenses). This payment is reflected in Schedule 2.

August and September Sundries Balance

47    The receivers, funded by Win 196, paid for and supplied sundries to guests during August and September, for which guests paid Ruby Apartments the amount of $119,585.38 which was received into the trust account.

48    Under the Compromise, the sum of $119,585.38 is reduced by $41,198.61 for a pro rata share of the Administration and Distribution Expenses, leaving the balance of $78,386.77 to be paid to the apartment owners in accordance with Schedule 2.

Analysis

Whether directions are available under s 424 of the Act to approve the Compromise

49    Section 424(1) of the Act provides that:

424     Controller may apply to Court

(1)     A controller of property of a corporation may apply to the Court for directions in relation to any matter arising in connection with the performance or exercise of any of the controller’s functions and powers as controller.

(2)     In the case of a receiver of property of a corporation, subsection (1) applies only if the receiver was appointed under a power contained in an instrument.

50    In Korda and Another v Silkchime Pty Ltd and Others (2010) 243 FLR 269; [2010] WASC 155, [30]-[32] (Korda), Le Miere J stated the following general principles applicable to s 424 of the Act:

…The power to make directions under s 424 is a broad one, intended to facilitate the work of receivers: Re Odessa Promotions Pty Ltd; Pescod v Harrison [1979] CLC 32,103 (40-523). …

Section 424 enables a receiver to apply for a direction whether or not he or she may lawfully take a particular proposed course of action: Re One Tel Networks Holdings Pty Ltd at [43]…

The role of s 424 is to provide a procedure for a receiver to obtain some guidance from the court in conducting the receivership and so as to give protection against a claim for breach of duty or allegations that he or she has acted improperly or unreasonably: see Sanderson v Classic Car Insurances Pty Ltd (1985) 10 ACLR 115; Re Southern Cross Airlines Holdings Ltd (in liq) [2000] 1 Qd R 84; (1998) 145 FLR 386.

51    A direction under s 424 does not bind third parties in relation to substantive issues: Korda, [35]; Re Mirabela Nickel Ltd (Recs and Mgrs Apptd) (In Liq); Ex Parte Madden [2018] WASC 335, [90] (Mirabela Nickel). That is even the case where the third party is joined as a defendant: White v Huxtable; Re Lake Federation Pty Ltd (2006) 232 ALR 388; [2006] FCA 559, [21]; Mirabela Nickel, [90].

52    Whilst the power given to the Court by s 424 should be construed liberally, the power to give directions is not unlimited. In particular, the section will not be invoked by the Court to judge the commercial prudence of a transaction entered into by a receiver appointed privately: Kirk, in the matter of Primebroker Securities Ltd (Receivers and Managers Appointed) (In Liq) [2011] FCA 86, [17] (Kirk) citing Re One.Tel Networks Holdings Pty Ltd (Hall As Rec And Mgr) and Others (2001) 40 ACSR 83; [2001] NSWSC 1065, [27] – [31] (Re One.Tel).

53    In Re One.Tel at [30], Austin J stated that:

…it has been held that s 424 cannot be resorted to for the purpose of seeking the intervention of the court to make a commercial decision for the controller. In the Best & Less case, Lockhart J quoted (at 247) from the judgment of Street CJ in Eq in Re Mineral Securities Australia Ltd (in liq) [1973] 2 NSWLR 207 at 232, where Street CJ remarked that “when the Court is required to pronounce upon the commercial prudence of a transaction, it enters upon a slippery and uncertain field”. Lockhart J declined on this ground to make the direction sought by the applicant, observing (at 249) that although the applicant appeared to have conducted his receivership with considerable skill, drive and ability, “he must make his decision according to the exigencies of the situation and make his own assessment of what is commercially sensible and feasible for him to do”, as he was a receiver and manager appointed privately, not by the court.

54    In Kirk at [21] – [22], North J stated that the following principles stated in Re Ansett Australia Ltd (No 3) (2002) 115 FCR 409; [2002] FCA 90, [65] – [66] are equally applicable to s 424 of the Act:

This review of the authorities satisfies me that the prevailing principle adopted by the courts, when asked by liquidators and administrators to give directions, is to refrain from doing so where the direction sought relates to the making and implementation of a business or commercial decision, either committed specifically to the liquidator or administrator or well within his or her discretion, in circumstances where there is no particular legal issue raised for consideration or attack on the propriety or reasonableness of the decision in respect of which the directions are sought. There must be something more than the making of a business or commercial decision before a court will give directions in relation to, or approving of, the decision. It may be a legal issue of substance or procedure, it may be an issue of power, propriety or reasonableness, but some issue of this nature is required to be raised. It is insufficient to attract an order giving directions that the liquidator or administrator has a feeling of apprehension or unease about the business decision made and wants reassurance. There must be some issue which arises in relation to the decision. A court should not give its imprimatur to a business decision simply to alleviate a liquidator’s or administrator’s unease. There must be an issue calling for the exercise of legal judgment.

The administrators may be correct in their submission that there is no rule of law and no fixed principle that a consideration of commercial issues is precluded, as the jurisdiction of the Court to give directions under provisions such as ss 447D and 479(3) of the Act is discretionary. The exercise of that discretion will vary depending upon the nature and novelty of the matters and issues which are brought before the Court. From time to time, the Court is necessarily drawn into a consideration of commercial issues where there is a matter giving rise not only to the need to make a business or commercial decision, but also to issues of propriety, power, reasonableness of conduct, contested issues of legal principle or procedure or challenges to the decision made by the liquidator or administrator. Such a situation arose, for example, in Re Codisco Pty Ltd; Sanderson v Classic Car Insurances Pty Ltd, and Re Addstone Pty Ltd (In liq). Nevertheless, there is the well-established principle to which I have referred, namely that a court will not give directions approving of a commercial or business decision made by a liquidator or administrator where the decision is within the power of the liquidator or administrator, and there is no challenge to it or other issue arising in relation to it such as propriety or reasonableness, or calling for the exercise of legal judgment.

55    In Kirk at [26], North J considered that the relevant question is whether the receivers in that case, who were applying for directions under s 424 of the Act that (amongst other things) they were justified in entering into a particular settlement of a proceeding, were simply seeking the Court’s imprimatur for the commercial decision to settle or whether there was something more in the nature of a real and practical threat that they will be challenged over their commercial judgment to compromise this claim.

56    I consider that this is the relevant question on the facts which are before the Court in this proceeding.

57    In Mirabela Nickel at [89], Vaughan J noted that the following principles emerge from Re Sandalwood Properties Ltd; Ex parte Preston [2018] FCA 547 as to the nature and scope of available directions under s 424:

(1)     The directions that may be provided are a form of personal guidance or advice; they articulate the approach the controller is justified in taking having regard to the known circumstances and relevant legal principles.

(2)     The power is to give ‘directions’ in relation to the matters identified in s 424(1). The relevant matters are described in broad and general terms, especially given the words ‘in connection with’. So too the words ‘in relation to’ are of ‘the widest import’. Thus the permissible subject matter of a direction will include the actions of the controller but is not confined to such actions. It will include where:

… the controller has to consider the appropriate action to take in undertaking functions or exercising powers and a third party is claiming that a right, interest or entitlement of the third party must be acknowledged or respected in exercising those functions or powers …

(3)     The circumstance that the controller is a privately appointed receiver and manager is not relevant to the question whether to make directions. That said, receivers should not be unduly nervous and come to court where advice is not needed.

(4)     There must be an issue calling for the exercise of legal judgment, i.e. a legal issue of substance or procedure or an issue of power, propriety or reasonableness. It must be more than a business or commercial decision. However, the fact that a legal question may have significant commercial consequences does not make the giving of directions inappropriate. The court does not give advice as to how the controller should act but rather whether there is legal justification to so act.

(5)     Once the jurisdictional requirement is satisfied the court has a discretion whether to provide advice of the kind contemplated by the statutory provision.

(6)     The making of directions is not an adjudication. It will not be determinative of parties’ rights. The court is not determining the rights of persons and has no power to provide directions that would have that consequence.

(7)     The fact that directions are sought in the context of an adversarial dispute does not mean that it is inappropriate to provide directions. There is a need to consider the nature of any underlying dispute. Nevertheless, the existence of such a dispute, and the circumstance that the subject matter for advice is an issue in adversarial proceedings, may be relevant to whether the court is willing to give directions and in what terms.

(8)     A direction is given in the context of the circumstances presented to the court at the time it is made; it will not extend to materially different circumstances that arise in the future. The form in which a direction is expressed should be consistent with it being provided by way of judicial advice.

(Footnotes omitted)

58    In this case, the Compromise was reached with some but not all of the claimants on the fund. There is therefore a real and practical threat that one or more of the defendants who were not parties to the Compromise could seek to challenge the receivers about the terms of the Compromise at a future date.

59    Further, one of the claimants, being RCM, has made certain assertions about the terms of the Compromise, which assertions constitute “a real and practical threat that [the receivers] will be challenged over their commercial judgment to compromise this claim”. Those assertions were contained in the MinterEllison Letter and are addressed below. They relate to the lawfulness of aspects of the Compromise.

60    Accordingly, I am satisfied that it is appropriate for the receivers to apply for the directions sought by them pursuant to s 424 of the Act. This is because this is not a case where privately appointed receivers are seeking directions concerning the commercial merits of a proposed settlement, which is a decision for the receivers alone to make.

Whether directions sought should be made

61    In summary, the primary challenge by RCM to the terms of the Compromise, as contained in the MinterEllison Letter, is that the AFA Act codifies circumstances in which money can be drawn from a regulated trust account and that, because of this:

(a)    payment of the receivers’ remuneration and expenses from the trust account is not permitted by the AFA Act;

(b)    payment of the legal costs of the Represented Defendants is a breach of ss 20 – 22 AFA Act.

62    However, s 149 of the AFA Act provides that:

149     Civil remedies not affected

Nothing in this Act affects or limits a civil remedy that a person may have against an agent or another person for a matter.

63    As recognised in the MinterEllison Letter itself, a receiver is ordinarily entitled to look to the trust assets for their indemnity.

64    This is consistent with authority. For example, in Australian Securities and Investments Commission v GDK Financial Solutions Pty Ltd (in liq) and others (No 3) (2008) 246 ALR 580; [2008] FCA 448 (GDK No 3), Finkelstein J stated at [10]:

There are, of course, several circumstances in which a receiver’s costs will stand ahead of the claims of a secured creditor. First of all, a receiver is entitled to be paid out of the proceeds of sale of mortgaged property the cost of any work that directly benefits the mortgagee. So, for example, if the receiver has rendered services in the care, preservation and sale of the mortgaged property he is entitled to those costs as against the mortgagee. In Re Universal Distributing Co Ltd (in liq) (1933) 48 CLR 171 at 174; [1933] ALR 107 at 108–9 Dixon J explained, in relation to a liquidator recovering the uncalled capital and debts of a company, that the charged property had to bear the costs that were incurred by the liquidator because the chargees would have had to pay them if they had realised the debt on their own behalf. In Shirlaw v Taylor (1991) 31 FCR 222 at 228; 102 ALR 551 at 558; 5 ACSR 767 at 774 the Full Court said that “where a party has by his efforts brought into court a fund in the administration of which various parties are interested, his costs and expenses [in establishing the fund] should be a first claim upon the fund.” In Moodemere Tadgell J said (at 229):

The expense properly attendant upon the realisation of the fund must be borne by it; that is to say, the portion of the proceeds of the realised fund available to the chargee can never exceed what remains after the proper expenses of its realisation have been provided for …

…

It follows that the chargee ranks for payment of his principal and interest after the person who is entitled to be paid out of the fund the proper expenses of its realisation. Thus, where property providing the security is realised in the winding up with the consent of the chargee, the liquidator’s costs, charges and expenses of the realisation are the first charge, the encumbrances rank next and the general costs of the winding up are payable only out of the surplus, if any…

65    In Re Arcabi Pty Ltd (in liq); Ex Parte Theobald (2014) 288 FLR 236, 251; [2014] WASC 310 at [66], it was stated that:

It is clear principles relating to established liens where expense has been incurred in calling in, caring for, preserving and realising assets extend to an out of court receiver. Any doubt on that question was resolved by the decision in Thackray v Gunns Plantations Ltd [2011] 85 ACSR 144. The right to an indemnity for costs and expenses including remuneration secured by an equitable lien is well recognised. In Coad v Wellness Pursuit Pty Ltd (in liq) (2009) 40 WAR 53; 226 FLR 91, Buss JA said:

It is well-established that a receiver, receiver and manager, provisional liquidator or liquidator appointed by the court in respect of a company has a right of indemnity out of the company's property for, relevantly, his or her remuneration, costs and expenses. Further, the right of indemnity is secured by an equitable lien on the company's property [46].

66    By reason of s 149 AFA, the receivers’ right to an indemnity for costs and expenses secured by an equitable lien over the fund was not affected or limited by the AFA Act.

67    Applying the same reasoning, any right of the Represented Defendants to look to the fund for the payment of their legal expenses was also not affected or limited by the AFA Act.

68    In GDK No 3 at [13], Finkelstein J observed that:

There is another (often overlooked) circumstance, not confined to a claim by a receiver, in which a fund that belongs to a secured creditor may be charged with another person’s costs. It is a long settled rule that the costs incurred for the benefit of all persons having an interest in an asset (usually a fund that is subject to various claims) must be borne by the fund. The rule is sometimes described as the rule in Ford v Earl of Chesterfield (1856) 21 Beav 426 [52 ER 924], a decision of the Master of the Rolls, Lord Romilly.

69    In Preston, in the matter of Sandalwood Properties Ltd (No 2) [2018] FCA 816, Colvin J stated at [19] – [21] that:

Where the application for directions concerns a subject matter that must be resolved as part of the administration of a receivership such that the costs may be viewed as costs of the receivership, then that is a matter that may warrant the costs of a party being fully indemnified out of the assets in the hands of the receivers. This is especially so where a party's participation has been, in effect, as a proper contradictor and the proceedings do not have the character of true adversarial litigation: as to these matters see Gothard v Davey (No 2) at [55]-[57]. Also relevant may be the approach taken by receivers on the application and the extent to which they took a considered approach to the issues raised on the application for directions: Bredenkamp v Gas Sensing Technology Corporation, in the matter of Welldog Pty Ltd (In Liq) (Receivers and Managers Appointed) (No 2) [2017] FCA 1125.

Therefore, if a party's participation is adversarial in the sense that it goes beyond that which is necessary in order to present the facts and address the issues so as to enable the court to provide advice for the purposes of the administration being conducted (in this case the receivership) then the approach to costs that applies to adversarial litigation should be applied. This is all the more so where the intervener participates to agitate a claim or position that has arisen from steps taken by the intervener.

On the other hand, if a party participates as a proper contradictor solely for the purpose of assisting the court in addressing the issues necessary to provide proper and appropriate judicial advice to the party seeking directions, then the approach to costs on applications concerning the administration of a trust, estate or fund should be applied. In such cases it is usual for all parties properly participating to be entitled to their costs on an indemnity basis paid out of the trust, estate or fund on the basis that they are costs of due administration.

70    In this case:

(a)    the receivers joined all potential claimants on the fund as parties to the proceeding so that they were on notice of the proposed manner of distribution of the fund as originally sought by the receivers;

(b)    no orders were sought against the Represented Defendants as such, but they were entitled to be heard on the application;

(c)    a subset of the potential claimants made up the Represented Defendants who retained lawyers to act in the proceeding;

(d)    other defendants did not appear or seek to be heard on the application, but those defendants who were apartment owners benefitted from the work performed by the lawyers for the Represented Defendants;

(e)    the Represented Defendants, by their lawyers, successfully negotiated for the receivers to abandon the pursuit of several claims including, for example, the claim to receive the higher amount of the Administration and Distribution Expenses, which has increased the funds available for distribution to the apartment owners (which constitutes the majority of the potential claimants);

(f)    the costs of the Represented Defendants are less than the claims which they have, by their negotiations, caused the receivers to give up as part of the Compromise.

71    In the circumstances, the application by the receivers concerned a subject matter (being the manner of distribution of the fund) that needed to be resolved as part of the administration of the receivership such that the Represented Defendants’ costs may be viewed as costs of the receivership. Further, for the reasons set out above, these proceedings did not have the character of true adversarial litigation. Accordingly, the Represented Defendants are entitled to be paid their costs out of the fund in accordance with the terms of the Compromise.

Conclusion

72    For the reasons set out above, I will direct that, pursuant s 424(1) of the Act, the receivers would be justified:

(a)    in entering into the Compromise and giving effect to its terms (and in causing Ruby Apartments to do so); and

(b)    distributing the fund in the way proposed in Schedule 2 to these reasons.

Associate:

Dated:    27 October 2021

SCHEDULE OF PARTIES

SCHEDULE 2