Federal Court of Australia
Krejci (liquidator), in the matter of Camporeale Properties Pty Ltd (in liquidation) [2023] FCA 586
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Until 11 May 2024, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the grounds set out in s 37AG(1)(a) of the Federal Court Act, paragraph 11 and Annexure C of the affidavit of Peter Paul Krejci sworn 21 April 2023 and marked “Confidential Affidavit” are to be marked as confidential and not be disclosed to any person other than the plaintiffs, their legal representatives and, as necessary, to the Judges of this Court and their staff.
2. Pursuant to r 14.24 of the Federal Court Rules 2011 (Cth), the remuneration of the first plaintiff, as receiver and manager over the business and assets of the Camporeale Property Trust (Trust), for the period from 1 October 2023 to 31 January 2023 be fixed in the amount of $174,848.00 (exclusive of GST).
3. Pursuant to r 14.24 of the Rules, the remuneration of the first plaintiff, as receiver and manager over the business and assets of the Trust, for the period from 1 February 2023 to the conclusion of the receivership be fixed in an amount not exceeding $36,000.00 (exclusive of GST).
4. Pursuant to r 14.23 of the Rules, direct nunc pro tunc that the first plaintiff, as receiver and manager over the business and assets of the Trust, is justified in entering into the deed of settlement and release dated 23 December 2022 between the plaintiffs and Sandra Camporeale (Settlement Deed) in relation to proceeding NSD668/2022 commenced by the plaintiffs in this Court.
5. Pursuant to s 477(2B) of the Corporations Act 2001 (Cth), approval is granted to the first plaintiff as liquidator of Camporeale Properties Pty Ltd (in liquidation) nunc pro tunc to enter into the Settlement Deed.
6. The first plaintiff, as receiver and manager over the business and assets of the Trust, be discharged from his appointment as court appointed receiver of the Trust following the payment of all of the receiver’s costs and expenses and the distribution of the remainder, if any, to Camporeale Properties Pty Ltd (in liquidation) to meet the costs and expenses of the liquidation and any distributions to creditors.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MARKOVIC J:
1 On 11 May 2023 I made orders including an order fixing the remuneration of the first plaintiff, Peter Krejci, as receiver and manager of the business and assets of the Camporeale Property Trust, and orders approving the entry by Mr Krejci in his capacity as liquidator of the second plaintiff, Camporeale Properties Pty Ltd (in liquidation), and receiver of the Trust, into a deed of settlement and release dated 23 December 2022 between Mr Krejci, Camporeale Properties and Sandra Camporeale (Settlement Deed). These are my reasons for making those orders.
Background
2 On 4 December 2019 Camporeale Properties was wound up in insolvency and Mr Krejci was appointed as its liquidator.
3 Mr Krejci’s investigations revealed that Camporeale Properties acted as trustee of the Trust and did not carry out business in its own right. The primary beneficiaries of the Trust are Mrs Camporeale and her late husband.
4 On 24 December 2019, because of the effect of Camporeale Properties’ liquidation on its role as trustee of the Trust, an order was made pursuant to s 57(1) of the Federal Court of Australia Act 1976 (Cth) appointing Mr Krejci as the receiver and manager over the business and assets of the Trust.
5 Thereafter the receiver took steps to realise the Trust property which he had identified.
6 On 20 January 2022 orders were made fixing Mr Krejci’s remuneration as receiver for the period 24 December 2019 to 30 September 2021, remuneration as liquidator for the period 4 December 2019 to 30 September 2021 and for payment of costs from the assets of the Trust.
7 On 18 August 2022 Mr Krejci and Camporeale Properties commenced proceeding NSD668/2022 in this Court against Ms Camporeale, the director of Camporeale Properties as defendant for recovery of approximately $220,000 which was alleged to be a voidable and unreasonable director-related transaction (Recovery Proceeding).
8 In about December 2022 the Recovery Proceeding settled and the parties entered into the Settlement Deed.
9 There was detailed evidence before me both as to the tasks undertaken by the receiver, in relation to the period for which he sought his remuneration and as to the circumstances in which Camporeale Properties and Mr Krejci entered into the Settlement Deed in connection with the Recovery Proceeding.
Receiver’s Remuneration Application
10 In support of his application that the Court fix his remuneration, Mr Krejci, in his capacity as receiver gave detailed evidence of the way in which time is recorded by him and his staff, the tasks undertaken, and critically, that he had reviewed the time entries recorded on the file, and is of the opinion that the work undertaken was both proper and necessary for the conduct of the receivership. It was also apparent from Mr Krejci’s evidence that he had struck an appropriate balance between undertaking the work himself and delegating tasks to less senior members of his team, having regard to the nature of the task.
11 In his comprehensive written submissions, counsel for the plaintiffs set out the relevant authorities. It is not necessary for me to recite those authorities here. The principles are settled and are well known. In summary, the task of the Court in determining or fixing an external administrator’s remuneration requires a result that is reasonable, having regard to the circumstances of each particular administration. The Court is not required to undertake a line-by-line review of the work carried out. Rather, the task involves a multi-faceted inquiry which requires, at the end of the day, an evaluative judgment.
12 Having regard to the work undertaken and to be undertaken to complete the receivership, the nature of the receivership and the amounts in question, I was satisfied that the total amount sought by the receiver was reasonable and that his remuneration for:
the period from 1 October 2021 to 31 January 2023 should be fixed in the amount of $174,848, exclusive of GST; and
the period from 1 February 2023 to the conclusion of the receivership should be fixed in an amount not exceeding $36,000, exclusive of GST.
Entry into the Settlement Deed
13 Mr Krejci sought an order in his capacity as liquidator of Camporeale Properties pursuant to s 477(2B) of the Corporations Act 2001 (Cth) and in his capacity as receiver pursuant to r 14.23 of the Federal Court Rules 2011 that he was justified nunc pro tunc in entering into the Settlement Deed.
14 Section 477(2B) of the Corporations Act provides that a liquidator may not enter into an agreement on the company’s behalf if the term of the agreement may end or the obligations of a party to the agreement may be discharged by performance more than three months after the agreement is entered into.
15 Rule 14.23 of the Rules provides that a receiver may apply to the Court for authority to do any act or thing in a proceeding in the receiver’s name or in the name of another party.
16 Having regard to the terms of the Settlement Deed and the circumstances which informed Mr Krejci’s decision to enter into to the Settlement Deed (recorded in part of Mr Krejci’s affidavit which is the subject of Orders made pursuant to s 37AF and s 37AG(1)(a) of the Federal Court Act), I was satisfied that the orders sought by Mr Krejci should be made. Further, the Settlement Deed included as a pre-condition to its operation a requirement that Mr Krejci seek approval for entry into it and, in light of the effluxion of time between the entry into of the Settlement Deed and the filing by Mr Krejci and Camporeale Properties of their application, an order pursuant to s 477(2B) became necessary.
Other orders
17 Mr Krejci and Camporeale Properties sought an order pursuant to s 37AF of the Federal Court Act in relation to aspects of Mr Krejci’s evidence which concerned the terms of the Settlement Deed and his rationale, including in particular advice received, for entering into the Settlement Deed. I was satisfied that it was appropriate that such an order be made.
18 I was also satisfied that I should make an order that Mr Krejci be discharged from his appointment as receiver upon completion of all necessary steps required to finalise the receivership. Mr Krejci was able to identify the outstanding steps he would be required to take and it was in the interests of the creditors and the efficient running of the receivership that he not be required to return to Court to make an additional application.
Conclusion
19 For those reasons I made the orders that I did on 11 May 2023.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Markovic. |
