Federal Court of Australia

Australian Securities and Investments Commission v Marco (No 14) [2023] FCA 244

ORDERS

THE COURT ORDERS THAT:

1.    A Registrar of the Court is to review and fix the remuneration to which the Receivers are properly entitled for the for the period from 4 June 2022 to 2 September 2022 and 3 September 2022 to 2 December 2022 under orders 5, 6, 7 and 10 made in this proceeding on 7 December 2020.

2.    The Registrar will advise the Receivers if the Registrar requires further information to fix the remuneration the subject of the applications and copies of any such further information provided to the Registrar must also be provided to the Australian Securities and Investments Commission.

3.    If the Registrar requests further information to fix the remuneration the subject of the application, the Receivers must provide such further information within 14 days of receipt of the Registrar’s request.

4.    As soon as reasonably practicable after receipt of the further information referred to in order 3, the Registrar is to fix the remuneration the subject of the application and deliver short written reasons for their determination.

5.    Within 14 days of the Registrar fixing the remuneration and delivering their written reasons under order 4, the Receivers or any other party may apply to the Court to review the Registrar’s determination and the Court may review the Registrar’s determination and fix the remuneration the subject of the application.

Interim payment of claimed remuneration by Receivers

6.    Subject to the following, the remuneration of the Receivers for the period from 4 June 2022 to 2 September 2022 and 3 September 2022 to 2 December 2022 in the amounts equivalent to 85% of $30,177.40 (incl of GST) and $17,243.60 (incl of GST) respectively, is approved for payment on an interim basis:

(a)    if the amount paid on an interim basis under this order is greater than the amount determined by the Registrar under orders 1 or 4 or any subsequent determination by the Court under order 5, the Receivers are to refund the difference together with interest at the Westpac 6 month business term deposit rate applicable at the time of drawdown of the interim remuneration amount; and

(b)    if the Registrar or Court determines that the Receivers were entitled to recover any amount greater than the amount paid on an interim basis under this order, then the Receivers may drawdown such an amount upon the Registrar or Court making orders reflecting the determination.

7.    Until further order, upon the drawdown of any funds for the purposes of payment of the Receivers’ interim remuneration under order 6, the Receivers are to file with the Court a Certificate in the form at Annexure A to these orders.

Costs

8.    The costs of this application are costs in the receivership

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

Annexure A

Certificate in respect of the Receivers’ remuneration application

No. WAD 481 of 2018

Federal Court of Australia

District Registry: Western Australia

Division: General Division

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Plaintiff

CHRIS MARCO and others named in the schedule

Defendants

To:    The Registrar

NOTE:    Terms defined in the orders made by McKerracher J on 7 December 2020 have the same meaning when used in this Certificate.

On [insert date] the amount of $[X] was paid to the Receivers from the Property as interim remuneration pursuant to order 1 of the orders made by Feutrill J on [insert date] 2023.

Signed: …………………………

Date: ……………………

REASONS FOR JUDGMENT

FEUTRILL J:

1    By orders of the Court made on 7 December 2020, Messrs Robert Kirman and Robert Brauer of McGrathNicol were appointed as joint and several receivers and managers of all property of the first and second defendants, all property of the third defendant immediately prior to the appointment of voluntary administrators to the third defendant, and all property of the managed investment scheme operated by each of the defendants described in the orders (Scheme and Property). Messrs Kirman and Brauer were also appointed as joint and several liquidators of the Scheme and AMS Holdings (WA) Pty Ltd (Receivers & Managers Appointed) (In Liquidation) (ACN 164 700 485) (the second defendant): Australian Securities and Investments Commission v Marco (No 6) [2020] FCA 1781. Before those orders, on 27 May 2020, Messrs Kirman and Brauer had been appointed as interim receivers or trustees of the property of the first defendant and interim receivers and managers of the property of the second and third defendants: Australian Securities and Investments Commission v Marco (No 3) [2020] FCA 719. Messrs Kirman and Brauer are referred to in these reasons as the Receivers.

2    After the Court made orders for their final appointment as receivers, the Receivers made a number of applications to the Court for orders to facilitate the fixing of their remuneration for various periods by a Registrar, as well as for orders approving, subject to certain safeguards, immediate interim payment of amounts equivalent to 85% of the total remuneration claimed for each period. Orders were made on those applications allowing for such interim payments in Australian Securities and Investments Commission v Marco (No 7) [2021] FCA 429, Australian Securities and Investments Commission v Marco (No 8) [2021] FCA 885, Australian Securities and Investments Commission v Marco (No 10) [2021] FCA 1342 and Australian Securities and Investments Commission v Marco (No 11) [2022] FCA 704 and Australian Securities and Investments Commission v Marco (No 12) [2022] FCA 1248 for the reasons given in those decisions.

3    By interlocutory process dated 28 February 2023, the Receivers seek orders fixing their remuneration for the period from 4 June 2022 to 2 September 2022 and 3 September 2022 to 2 December 2022 and approving an interim payment of 85% of the remuneration claimed for that period. The orders sought are in substantially the same terms as the orders the Court made on the earlier applications. The Receivers filed and rely upon an affidavit of Mr Brauer sworn 27 February 2023. In particular, that affidavit annexes two Receivers’ Remuneration Approval Reports for the period from 4 June 2022 to 2 September 2022 (Seventh Remuneration Report) and the period from 3 September 2022 to 2 December 2022 (Eight Remuneration Report).

4    The Receivers requested that the interlocutory processes of 28 February 2023 be determined on the papers. The Australian Securities and Investments Commission and Mr Marco have indicated that they do not wish to be heard on the application.

5    The Court may deal with a matter without an oral hearing (either with or without the consent of the parties) if satisfied that determination of the matter would not be significantly aided by an oral hearing because the legal arguments in relation to the matter can be dealt with adequately by written submissions: s 20A(2)(c)(ii) of the Federal Court of Australia Act 1976 (Cth). I am so satisfied.

6    As there have been five previous sets of orders for the interim payment of remuneration made on the same or substantially the same basis as the present application, it is only necessary to briefly state the reasons for making the requested orders.

7    The applicable legal principles are set out in Marco (No. 7), Marco (No. 8) and Marco (No. 11). The nature of, need for, and complexity of the work the Receivers performed in the period from 4 June 2022 to 2 September 2022 and 3 September 2022 to 2 December 2022 is explained in summary form in Mr Brauer’s affidavit and the Seventh and Eighth Remuneration Reports. In his affidavit Mr Brauer deposes that details of relevant matters mentioned in s 425(8) of the Corporations Act 2001 (Cth) as to the reasonableness of the Receiver’s remuneration are set out in those reports. The reports contain a declaration by the Receivers to the effect that they are satisfied that the remuneration claimed is in respect of necessary work properly performed. The tasks undertaken are described in the reports and schedules to them. The methodology for presenting, reviewing and for being satisfied that the work was necessary and properly performed is outlined in the reports. Mr Brauer deposes that the reports have been prepared with the requisite level of detail and to the standards of the applicable professional body – ‘Practice Statement Insolvency 5: Remuneration reporting issued under the ARITA Code of Professional Practice’. There is no opposition to the claimed remuneration by ASIC, Mr Marco or the relevant committee of inspection.

8    I am satisfied for substantially the same reasons I expressed in Marco (No. 11) and on the basis of the same protections, safe-guards and mechanisms there explained, that there should be an order for interim payment of 85% of the Receiver’s claimed remuneration for the period from 4 June 2022 to 2 September 2022 and 3 September 2022 to 2 December 2022. Accordingly, orders will be made in terms of the Receiver’s interlocutory application of 28 February 2023.

Associate:

Dated:    21 March 2023