Federal Court of Australia

Trpcevski (Administrator), in the matter of Trisquare Pty Ltd (in liq) [2025] FCA 1511

ORDERS

THE COURT ORDERS THAT:

1.    By 4.00 pm AWST on 6 November 2025, the plaintiffs must file and serve an aide memoir.

2.    Pursuant to s 35A(1)(h) of the Federal Court Act 1976 (Cth) and r 16.1 and item 5 of Pt 1A of Sch 2 to the Federal Court (Corporations) Rules 2000 (Cth), the determination, pursuant to s 60-16(1)(a) of Sch 2 to the Corporations Act 2001 (Cth) - Insolvency Practice Schedule (Corporations), of the remuneration sought by the originating process dated 3 October 2025, including the costs of the application for approval of the remuneration, is referred to a registrar for determination in accordance with the court's reasons for this order.

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

REASONS FOR JUDGMENT

JACKSON J:

1    On 3 October 2025, Jimmy Trpcevski and Greg Prout (former administrators) filed an originating process seeking the determination and approval of their remuneration as the former joint and several administrators of Trisquare Pty Ltd (in liquidation). On 30 October 2025, I made orders referring that determination to a Registrar of the Court, indicating that I would publish reasons to provide guidance to the Registrar in relation to two particular issues that are apparent on the face of the materials filed. The first is whether the former administrators are able to claim remuneration for work done after they ceased to be administrators. The second issue concerns the relevance, if any, of the fact that a resolution to approve the remuneration was put to creditors of Trisquare and not passed.

The factual background and the remuneration claimed

2    On 7 February 2025, the former administrators were appointed as joint and several voluntary administrators of Trisquare pursuant to a resolution of the directors. The first meeting of creditors was convened on 19 February 2025. At that meeting, the creditors of Trisquare voted to remove the former administrators and appointed Andrew Smith and Robert Jacobs as the administrators of Trisquare (new administrators). The voluntary winding up of Trisquare followed, and on 1 August 2025 Mr Smith and Mr Jacobs were appointed as joint and several liquidators of the company.

3    The former administrators make a claim for work they conducted between the period of 7 February 2025 and 19 February 2025. That they can claim for this work is not in doubt. It will be a matter for the Registrar to determine whether the amounts claimed were reasonably and properly incurred.

4    The former administrators also make a claim for work undertaken after their removal on 19 February 2025. They claim this work was necessary to ensure an orderly handover to the new administrators and to facilitate the continued proper administration of Trisquare. The claims of post-appointment remuneration concerns fees charged and expenses incurred for the period from 19 February 2025 to 21 March 2025, and also from 22 March 2025 to a future time where the handover to the liquidators is complete. In total the former administrators claim $116,680.50 in remuneration, of which some $23,677.50 is claimed in respect of the post-appointment period.

5    The former administrators sought approval of their remuneration, including the post-appointment remuneration, by issuing a circular to the creditors of Trisquare on 27 March 2025. The remuneration proposed by the former administrators was not approved by the creditors.

Remuneration for the post-appointment period

6    In their originating process, the former administrators seek remuneration pursuant to s 60-10(1)(c) of Sch 2 to the Corporations Act 2001 (Cth) (Insolvency Practice Schedule (Corporations)) (IPS). Pursuant to s 90-15(1) and s 90-20, the former administrators also seek remuneration for the post-appointment period, by which time they had been removed as the administrators of Trisquare.

Applicable law

The relevant statutory provisions

7    The IPS was introduced by the Insolvency Law Reform Act 2016 (Cth), which among other things, repealed former s 449E (which had provided for the determination of remuneration).

8    Section 60-10(1)(c) of the IPS provides that the Court may make a determination specifying remuneration that an external administrator of a company is entitled to receive for necessary work properly performed by the external administrator in relation to external administration. In making a determination under s 60-10(1)(c), the Court must have regard to 'any or all' of the matters in s 60-12 in determining whether the remuneration is 'reasonable'. Though the criteria in s 60-12 of the IPS direct the Court to the factors that are to be taken into account, 'the ultimate question' is whether the remuneration claimed by the administrators is reasonable: Warwick, in the matter of WITS Holdings Pty Ltd (in liquidation) [2021] VSC 179 at [39] (Matthews AsJ).

9    Section 90-15(1) of the IPS empowers the Court to 'make such orders as it thinks fit in relation to the external administration of a company'. This confers a broad power on the Court: Kelly, in the matter of Halifax Investment Services Pty Ltd (in liquidation) (No 8) [2020] FCA 533 at [51] (Gleeson J). Section 90-15(2) provides that the Court may exercise the power under s 90-15(1) on its own motion or on application or from a person with a financial interest in the company under s 90-20(1)(a). A person with a financial interest in the external administration of a company includes a creditor or an external administrator of the company: s 5-30(a)(ii), (iii).

10    An order under s 90-15(1) may include an 'an order in relation to remuneration': s 90-15(3)(f). This broad power has been utilised to approve post-appointment remuneration claimed by previous administrators of a company: Albarran, in the matter of Tauro Capital Pty Ltd (in liq) [2024] VSC 69 at [23] (Caporale JR); WITS Holdings at [91]-[92] (Matthews AsJ); Burdett, in the matter of Michael Sklovsky Pty Ltd (subject to a deed of company arrangement) [2021] VSC 421 at [30]-[31] (Matthews AsJ).

Cases under the former provision, s 449E

11    The text of s 449E(1) limited the statutory entitlement to claim remuneration under the subsection to the 'administrator of a company under administration'. Therefore, it conferred no entitlement to remuneration for work done before appointment as administrator, or after termination of the appointment: Re Timeshare Resort Club Ltd (in liq) [2010] FCA 673; (2010) 187 FCR 13 at [73] (Barker J), citing Skafcorp v Jarol [2002] NSWSC 1183 at [16]-[17] (Austin J).

12    However, these authorities suggest that the Court may approve remuneration for pre-administration and post-administration work where there is an express or implied contract between the administrator and the company in respect of such work: see Skafcorp at [16]; Timeshare at [74]. In both of those cases, it appears that the Court was content to proceed on the basis that the administrators had established a contractual entitlement to charge. Alternatively, an administrator may be entitled to recover reasonable payment on a quantum meruit basis: see Skafcorp at [16]; Timeshare at [74].

13    It is also accepted that former external administrators are entitled to charge reasonable remuneration for preparation of their remuneration application: Tauro Capital at [23(c)]; and Re Reiter Brothers Exploratory Drilling Pty Ltd (1994) 12 ACLC 430 at 441.

14    In McEvoy, in the matter of P.P.I. Corporation Pty Ltd (administrators appointed) [2014] VSC 366, after the administration was concluded the plaintiffs (the previous administrators) undertook a series of tasks to conclude the administration and facilitate the handover of the administration to the liquidators. This was agreed to during a telephone conversation between the plaintiffs and the liquidators of the company. Gardiner AsJ referred to the exception in Timeshare and accepted that the evidence indicated that the former administrators were engaged by the liquidators, effectively as their agents, to perform the post-administration work: at [42]. At [40], his Honour determined that the plaintiffs were entitled to remuneration for that work, utilising the power in s 447A of the Corporations Act to modify the operation of Pt 5.3A, so as to make orders in respect of that remuneration: at [40].

Cases after the 2016 reforms

15    As with former s 449E(1), the statutory entitlement under s 60-10(1) is limited to remuneration 'that an external administrator of a company … is entitled to receive…'. The factors to be taken into account are materially the same as for the statutory predecessor, so the principles dealing with the former provisions remain pertinent: WITS Holdings at [40]-[41]; Tauro Capital at [9]-[12].

16    In WITS Holdings a settlement letter between the plaintiffs (previous administrators) and the liquidator was in evidence, acknowledging that the remuneration sought concerned work which had been approved by the liquidator and conducted to assist with handover tasks for the liquidation of the company: at [91]. Matthews AsJ was satisfied that these circumstances fell within the exceptions referred to in Timeshare and applied in P.P.I Corp. On that basis, her Honour was satisfied that the court had the power pursuant to s 90-15(3)(f) to approve the remuneration sought: see [91]-[92].

17    Similarly, in Michael Sklovsky, Matthews AsJ was satisfied the court had the power pursuant to s 90-15(3)(f) to approve the remuneration sought for the post-administration period: see [30]-[31]. In that case, while the deed administrators (second plaintiffs) initially objected to the remuneration sought by the previous administrators, following negotiations the parties provided a signed consent minute in respect of the remuneration sought. Her Honour was satisfied that the consent minute involved the deed administrators agreeing to the quantum of the remuneration sought, and such agreement was an implicit acknowledgment that the post-appointment period concerned work approved by the deed administrators and conducted to assist with handover tasks for the administration: at [28]-[30].

18    Tauro Capital concerned an application by former liquidators for a remuneration determination pursuant to s 60-10(1)(c), or alternatively s 90-15(1) of the IPS. Judicial Registrar Caporale was satisfied that the work done by the plaintiffs during the handover period 'to achieve an orderly handover' fitted with the type of work contemplated in Timeshare and P.P.I Corp outlined above. Upon considering those authorities and the absence of objections, the Registrar was satisfied that s 90-15 could be used to make a remuneration determination for the work conducted during the handover period after their replacement as liquidators: at [23]-[24].

The power of the Court to approve remuneration for the post-appointment period

19    In this case, the former administrators claim various post-appointment costs, including those incurred in the preparation and filing of ASIC lodgements and costs associated with the preparation of the remuneration application. However, the majority of the costs claimed by the former administrators do not fall within those two narrow categories. They instead relate to work conducted in the post-appointment period which they say was performed to facilitate an orderly handover with the new administrators (and the liquidators as they ultimately became), as well as costs attached to the continued administration of Trisquare.

20    The exceptions articulated in the authorities above, indicate that the Court has the power pursuant to s 90-15 to approve post-appointment remuneration if the work has been done at the request of and with the assent of the liquidators or current administrators: see WITS Holdings; Michael Sklovsky; cf. Tauro Capital. Skafcorp and Timeshare appear to articulate a stricter view that a legally enforceable entitlement on the part of the administrators is required. But those decisions predate the 2016 reforms and do not articulate a provision of the Act on which the view is based. P.P.I Corp, reflects a more pragmatic approach from the same period.

21    It is true that the particular circumstances of each of WITS Holdings and Michael Sklovsky persuaded Matthews AsJ to exercise the power under s 90-15, without her Honour having to find that it applied more broadly. But it is a broad power, and remuneration is expressly included in s 90-15(3) as a matter in relation to which it may be exercised. Neither the provisions of s 60-11 and s 60-12 nor the IPS as a whole, reveal an intention that s 60-11 covers the field of remuneration: Australian Securities And Investments Commission v Jones [2023] WASCA 130 at [306]-[313] (Buss P, Mitchell and Beech JJA); McCabe, in the matter of McCabe his capacity as deed administrator of Comlek Group Pty Ltd [2023] FCA 1415 at [26] (Cheeseman J). These matters support the pragmatic approach to the question of which P.P.I Corp, WITS Holdings, Michael Sklovsky and Tauro Capital are examples.

22    Section 90-15 authorises the determination of substantive rights: Re Hawden Property Group Pty Ltd (in liq) [2018] NSWSC 481 at [8] (Gleeson JA); see also One T Development Pty Ltd v Krejci in his capacity as liquidator of ENA Development Pty Ltd [2023] NSWCA 120 at [33]-[35]. An order approving pre- or post-appointment remuneration is squarely within the scope of the power and, depending on the circumstances, may find substantial justification in the cost savings that it will provide to creditors and all concerned by doing away with the need to establish and thus dispute the existence of a legally binding contract.

23    In my view, in order to claim remuneration for pursuant to s 90-15, the former administrators need not establish all the elements of a legally binding contract (or a quantum meruit claim), but they must establish at least an objectively manifested mutual understanding with duly authorised officers of the company that the former administrators are undertaking the work at the express or implied request of those officers, or otherwise with their assent.

24    Usually, perhaps inevitably, the officers in question will be external administrators of some kind, whether subsequent administrators or liquidators, or perhaps receivers of the company. Their assent may well cover tasks undertaken in preparation for a handover, particularly, in the context where there is evidence to demonstrate that former administrators have been engaged to perform certain post-administration tasks as the 'new' external administrators' agents: see Tauro Capital at [23]; and P.P.I Corp at [42]. It will be a question of fact on the evidence in each case as to whether the necessary objectively manifested assent is present.

25    Even if it is, the Court will retain the discretion to withhold approval if the case is not an appropriate one to confer it. The presence of the necessary conditions for approval of pre- or post-appointment remuneration will not absolve the plaintiffs from establishing also that the work and costs claimed were done and incurred reasonably and properly for the benefit of the administration or winding up. The former administrators did not put their claim for post-appointment remuneration and expenses on any different basis here.

26    None of this is to say that the power under s 447A to make an order as to how Pt 5.3A is to operate is not also available in these situations. But the power under s 90-15 seems to me to be a straightforwardly applicable one, at least in the present case.

27    As outlined above (at [9]), the former administrators must be a person with a 'financial interest' in the external administration of Trisquare to apply for an order under s 90-15. Despite s 5-30(a)(iii) using the words 'external administrator of the company', I see no reason why this should be confined to a person who is an existing administrator at the time of his or her application to the Court. Such a restriction would create practical and public interest concerns, as it could discourage administrators from accepting appointments due to increased personal risk: see e.g. Strazdins v DNPW Pty Ltd [2013] FCA 1368 at [41] (Besanko J); Re Lime Gourmet Pizza Bar (Charlestown) Pty Ltd [2015] NSWSC 244 at [62]-[65] (Black J).

Application of principles here

28    Subsequent to the hearing, the former administrators filed an aide memoire in which they identified the evidence on which they relied in order to claim post-appointment remuneration. They did this on 12 November 2025.

29    The former administrators point to several instances which they claim evidence the existence of an implied contract with the liquidators to undertake post-appointment work:

(1)    On 20 February 2025, Mr Smith and Mr Jacobs as the new administrators sent a letter to the former administrators in which they requested documents relating to Trisquare including its books and records, cash flow forecasts, payments, a list of known employees and a list of the creditors of Trisquare including the estimated amount of their debt. Also in evidence was email correspondence between the former administrators and the new administrators, which included the former administrators providing an update and response to the matters raised in the handover letter of 20 February 2025.

(2)    On 26 February 2025, the former administrators corresponded with the solicitors of the new administrators to facilitate a transfer of funds to them as well as the payment of administration liabilities by the former administrators.

(3)    Between 27 February 2025 and 7 March 2025, the former administrators corresponded with the new administrators to clarify issues relating to payments that were due to contractors for fees incurred during the former administrators' administration period and to obtain details about contact the former administrators had with Trisquare staff regarding their employment.

(4)    Between 20 March 2025 and 24 March 2025, the solicitors for the new administrators and the former administrators corresponded regarding the transfer of funds to the new administrators, the approval of their remuneration by the creditors of Trisquare and the organising of a meeting to discuss payment of certain liabilities.

(5)    On 25 March 2025, an email was sent by the new administrators to the former administrators. That email referred to matters raised at a previous meeting the parties had on 24 March 2025. It showed that the former administrators were informed of approved payments to suppliers and sub-contractors, the arranging of payment of liabilities arising from the payment of wages to employees, and a request for the release of surplus funds to the new administrators. In response, the former administrators replied confirming that they had released a payment of $1,139,819.46.

30    These interactions show that former administrators were undertaking work in the post-appointment period. That work was being done at the request of the new administrators, who, through correspondence, asked the former administrators to undertake certain work in order to facilitate the handover of the administration of Trisquare. Although this correspondence does not necessarily show an express request by the new administrators, it is clear from the correspondence that an implied request was made. This implied request arose through discussions with the former administrators to facilitate various payments that were necessary to be made to contractors, suppliers and employees of Trisquare were made.

31    The context in which the new administrators were appointed is also relevant. The former administrators claim that they were given a limited opportunity to hand over the conduct of the administration to the new administrators during the appointment period. The former administrators submit that this arose as a consequence of them being removed through a creditors' resolution which occurred a short period after their appointment. As a result, the new administrators requested the assistance of the former administrators. They did so by asking them to answer certain questions as to the status of the administration and sought their assistance in the transfer of funds.

32    The correspondence between the new administrators and the former administrators concerning the handover of the administration evidences conduct of the former administrators in assisting with handover tasks. That work was initiated by correspondence sent from the new administrators.

33    In my view, the former administrators are entitled to be remunerated for such work. The evidence indicates that the work done was more conveniently done by the former administrators because of their familiarity with the affairs of the company gained during the period of the administration.

34    In this case, the application was unopposed (subject to a couple of matters mentioned at the end of these reasons), and I am satisfied that it will be beneficial to the external administration of the company that the determination is made under s 90-15.

35    It follows from the above that it will still be necessary for the Registrar to be satisfied that any sums claimed by the former administrators as post-administration fees and expenses were reasonably and properly incurred for the purpose of fulfilling the requests or performing the work as agreed with the new administrators/liquidators as described above.

The creditors' votes against the remuneration claimed

36    On or about 22 April 2025 the creditors of Trisquare voted on the proposals to approve the former administrators' remuneration without convening a meeting of creditors pursuant to s 75-40(1) of the IPS. Rule 75-130(2) of the Insolvency Practice Rules (Corporations) 2016 (Cth) provides that such proposals will be taken to be passed as a resolution at a meeting of creditors if both a majority of responding creditors and a majority in value of responding creditors vote in favour of the proposal.

37    The first proposal related to remuneration for the appointment period of 7 February 2025 to 19 February 2025. Only two creditors voted in favour of this proposal and 16 creditors voted against it. The second proposal related to remuneration for the post-appointment period of 19 February 2025 to 21 March 2025. Again, only two creditors voted in favour of this proposal and 16 creditors voted against it. The third proposal related to remuneration for the post-appointment period of 22 March 2025 to the completion of the voluntary administration period hand over, capped at $10,040.00. Three creditors voted in favour of this proposal and 15 creditors voted against it. In each case a majority of creditors by value voted against the proposal.

38    The former administrators submit that no particular relevance or weight ought to be afforded to the creditors' rejection of the remuneration proposals. They submit that the guiding principle in the determination of the remuneration remains whether the work performed is reasonable.

39    I accept that submission. In Barnden (liquidator), in the matter of MV Developments (Lane Cove) Pty Ltd (in liq) [2021] FCA 1110, Downes J determined an application by a liquidator for remuneration, which was voted not approved by a majority of creditors. In conducting the analysis of determining remuneration her Honour applied the established principles concerning the reasonableness of the work, but did not consider the creditors' disapproval as a salient factor in the analysis.

40    That approach has been consistently applied: see for example Woods, in the matter of Gold Merchants International (Aust) Pty Ltd (in liq) [2025] FCA 149 at [10(b)], [14] (O'Callaghan J); Re Newman Rivergums Village Operations Pty Ltd (subject to a deed of company arrangement) [2024] WASC 134 at [19]-[22], [26]-[30] (Russell M); and Ex Parte Richard Tucker & John Bumbak in their capacity as joint and several liquidators of Gold Valley Iron Pty Ltd (in liquidation) (ACN 631 265 739) [2023] WASC 129 at [17], [31]-[33] (Hill J).

41    That is consistent with the wording of the relevant provision, s 60-10(1) of the IPS, which provides that a determination specifying the remuneration entitlement of an external administrator may be made:

(a)    by resolution of the creditors; or

(b)    if there is a committee of inspection and a determination is not made under paragraph (a) - by the committee of inspection; or

(c)    if a determination is not made under paragraph (a) or (b) - by the Court.

42    This is, in effect, a cascading series of alternatives where in (c) (and (b)) the necessary precondition, the absence of a determination in one of the previous alternative ways, is neutrally expressed. It follows that whatever may be the reason why a resolution of creditors determining the remuneration has not been made, if there is no committee of inspection (as there is none here), the necessary precondition to the power of the Court under (c) is established. The Court will then proceed to exercise that power on the basis of the well-established principles in the ordinary way. The often inscrutable result of the preceding vote of creditors will be of no moment in that process.

43    If any interested persons wish to oppose the approval of the former administrators' remuneration, they will need to do so by seeking leave to be heard under r 2.13 of the Federal Court (Corporations) Rules 2000 (Cth) and, if leave is granted, putting such evidence and submissions as they may reasonably put. In this case, while a shareholder of Trisquare inappropriately sought to make submissions by sending an email to Registry, no creditor sought leave to be heard. Similarly, while the former administrators properly brought to my attention correspondence from the liquidators raising certain concerns about the former administrators' remuneration claim, the liquidators have indicated that they did not wish to appear to adduce evidence or make submissions to the Court.

Associate:

Dated:    5 December 2025