Australian Securities and Investments Commission v GDK Financial Solutions Pty Ltd (In Liquidation) (No 15)
[2013] FCA 460
•17 May 2013
FEDERAL COURT OF AUSTRALIA
Australian Securities and Investments Commission v GDK Financial Solutions Pty Ltd (In Liquidation) (No 15) [2013] FCA 460
| Citation: | Australian Securities and Investments Commission v GDK Financial Solutions Pty Ltd (In Liquidation) (No 15) [2013] FCA 460 | |
| Parties: | AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v GDK FINANCIAL SOLUTIONS PTY LTD (IN LIQUIDATION) (ACN 085 488 311), WINDSOR VILLAGE MANAGEMENT PTY LTD (IN LIQUIDATION) (ACN 088 339 913), WESTERN RETIREMENT VILLAGE MANAGEMENT PTY LTD (ACN 091 443 239), THE MEWS VILLAGE NOMINEES PTY LIMITED (IN LIQUIDATION) (ACN 091 526 224), PERIDON MANAGEMENT PTY LTD (IN LIQUIDATION) (ACN 088 322 276), ROSEDALE VILLAGE NOMINEES PTY LTD (IN LIQUIDATION) (ACN 089 667 096), PETER HASTINGS WARNE, RENTAL FLEETS AUSTRALIA PTY LTD (ACN 082 558 978), JOHN MONTGOMERIE, ANDREW YEO, GUISEPPE DE SIMONE, SEACHANGE MANAGEMENT PTY LTD (ACN 091 443 211), ZMB AUSTRALIA PTY LTD (ACN 105 746 067), YOUNG TURKS PTY LTD (ACN 005 872 122), TOUMA PTY LTD (ACN 124 195 366), PHILLIP CLEMENTS and AVS PROPERTY PTY LTD (ACN 094 311 645) | |
| File number: | VID 590 of 2006 | |
| Judge: | GORDON J | |
| Date of judgment: | 17 May 2013 | |
| Date of hearing: | Determined on the papers | |
| Place: | Melbourne | |
| Division: | GENERAL DIVISION | |
| Category: | No catchwords | |
| Number of paragraphs: | 23 | |
| Solicitor for the Second Defendant, the Sixth Defendant and the Receivers of the Sixth Defendant: | Ashurst Australia | |
| IN THE FEDERAL COURT OF AUSTRALIA | |
| VICTORIA DISTRICT REGISTRY | |
| GENERAL DIVISION | VID 590 of 2006 |
| BETWEEN: | AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION |
| AND: | GDK FINANCIAL SOLUTIONS PTY LTD (IN LIQUIDATION) (ACN 085 488 311) WINDSOR VILLAGE MANAGEMENT PTY LTD (IN LIQUIDATION) (ACN 088 339 913) WESTERN RETIREMENT VILLAGE MANAGEMENT PTY LTD (ACN 091 443 239) THE MEWS VILLAGE NOMINEES PTY LIMITED (IN LIQUIDATION) (ACN 091 526 224) PERIDON MANAGEMENT PTY LTD (IN LIQUIDATION) (ACN 088 322 276) ROSEDALE VILLAGE NOMINEES PTY LTD (IN LIQUIDATION) (ACN 089 667 096) PETER HASTINGS WARNE RENTAL FLEETS AUSTRALIA PTY LTD (ACN 082 558 978) JOHN MONTGOMERIE ANDREW YEO GUISEPPE DE SIMONE SEACHANGE MANAGEMENT PTY LTD (ACN 091 443 211) ZMB AUSTRALIA PTY LTD (ACN 105 746 067) YOUNG TURKS PTY LTD (ACN 005 872 122) TOUMA PTY LTD (ACN 124 195 366) PHILLIP CLEMENTS AVS PROPERTY PTY LTD (ACN 094 311 645) |
JUDGE: | GORDON J |
DATE OF ORDER: | 17 MAY 2013 |
WHERE MADE: | MELBOURNE |
THE COURT ORDERS THAT:
Order 1(e) of the Orders made on 18 November 2008 (Waterfall Orders) in this proceeding be recalled and in lieu thereof it be ordered that:
(e) Fourth, in payment of Montgomerie’s legal costs (pursuant to the orders made by the Court on 21 March 2007 as varied by this order) and Andrew Yeo’s remuneration and costs and expenses (pursuant to the orders made by the Court on 21 June 2007) such costs to be:
(i)apportioned as between Medina and Teys in the Medina Proportion and the Teys Proportion respectively, with the Medina Proportion being paid from the sale proceeds of that part of the Rosedale Land and Business which is secured in favour of Medina and the Teys Proportion being paid from the sale proceeds of that part of the Rosedale Land in respect of which Teys claims an interest by way of subrogation; and
(ii)agreed by the parties; or
(iii)approved by the Court in absence of any agreement.
David John Winterbottom and Martin Madden, as joint and several receivers of the Rosedale Scheme, as that scheme was defined in schedule B to the order made on 28 November 2006 (the Rosedale Receivers) pay:
(a) the sum of $8,775.21 to Mr Andrew Yeo (the Tenth Defendant); and
(b)the balance of the sale proceeds of the assets which comprised the Rosedale Land and Business (as defined in the Waterfall Orders), if any, to TPFL Limited (In Liquidation) (ACN 105 164 047).
Following compliance with paragraph 2 above:
(a)the Rosedale Receivers be discharged and released from their appointment as the Rosedale Receivers;
(b)pursuant to s 480 of the Corporations Act 2001 (Cth) (the Act) and rule 7.5 of the Federal Court (Corporations) Rules 2000 (Cth) (the Rules), David Winterbottom and Martin Madden in their capacities as liquidators of Windsor Village Management Pty Ltd (ACN 088 339 913) and Rosedale Village Nominees Pty Ltd (ACN 089 667 096), be released; and
(c)pursuant to s 480 of the Act and rule 7.5 of the Rules, the Australian Securities and Investments Commission deregister each of Windsor Village Management Pty Ltd (ACN 088 339 913) and Rosedale Village Nominees Pty Ltd (ACN 089 667 096).
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).
| IN THE FEDERAL COURT OF AUSTRALIA | |
| VICTORIA DISTRICT REGISTRY | |
| GENERAL DIVISION | VID 590 of 2006 |
| BETWEEN: | AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION |
| AND: | GDK FINANCIAL SOLUTIONS PTY LTD (IN LIQUIDATION) (ACN 085 488 311) WINDSOR VILLAGE MANAGEMENT PTY LTD (IN LIQUIDATION) (ACN 088 339 913) WESTERN RETIREMENT VILLAGE MANAGEMENT PTY LTD (ACN 091 443 239) THE MEWS VILLAGE NOMINEES PTY LIMITED (IN LIQUIDATION) (ACN 091 526 224) PERIDON MANAGEMENT PTY LTD (IN LIQUIDATION) (ACN 088 322 276) ROSEDALE VILLAGE NOMINEES PTY LTD (IN LIQUIDATION) (ACN 089 667 096) PETER HASTINGS WARNE RENTAL FLEETS AUSTRALIA PTY LTD (ACN 082 558 978) JOHN MONTGOMERIE ANDREW YEO GUISEPPE DE SIMONE SEACHANGE MANAGEMENT PTY LTD (ACN 091 443 211) ZMB AUSTRALIA PTY LTD (ACN 105 746 067) YOUNG TURKS PTY LTD (ACN 005 872 122) TOUMA PTY LTD (ACN 124 195 366) PHILLIP CLEMENTS AVS PROPERTY PTY LTD (ACN 094 311 645) |
JUDGE: | GORDON J |
DATE: | 17 MAY 2013 |
PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
Introduction
On 28 November 2006, David John Winterbottom and Martin Madden were appointed as joint and several liquidators (the Rosedale Liquidators) of the second defendant, Windsor Village Management Pty Ltd (ACN 088 339 913) (Windsor Village) and the sixth defendant, Rosedale Village Nominees Pty Ltd (ACN 089 667 096) (Rosedale). On the same day, the Rosedale Liquidators were also appointed as joint and several receivers of the Rosedale Scheme, as that scheme was defined in schedule B to the order made on 28 November 2006 (the Rosedale Receivers).
By an interlocutory process dated 31 January 2013 (the Retirement Application), the Rosedale Liquidators and the Rosedale Receivers sought the following relief:
1.Order 1(e) of the Orders made on 18 November 2008 (the Waterfall Orders) in this proceeding be recalled and in lieu thereof it be ordered that:
(e)Fourth, in payment of Montgomerie’s legal costs (pursuant to the orders made by the Court on 21 March 2007 as varied by this order) and Andrew Yeo’s remuneration and costs and expenses (pursuant to the orders made by the Court on 21 June 2007) such costs to be:
(i)apportioned as between Medina and Teys in the Medina Proportion and the Teys Proportion respectively, with the Medina Proportion being paid from the sale proceeds of that part of the Rosedale Land and Business which is secured in favour of Medina and the Teys Proportion being paid from the sale proceeds of that part of the Rosedale Land in respect of which Teys claims an interest by way of subrogation; and
(ii)agreed by the parties; or
(iii)approved by the Court in absence of any agreement.
2. The Rosedale Receivers pay:
(a)the sum of $8,775.21 to Mr Andrew Yeo (the Tenth Defendant); and
(b)the balance of the sale proceeds of the assets which comprised the Rosedale Land and Business (as defined in the Waterfall Orders), if any, to TPFL Limited (In Liquidation) ACN 105 164 047 (TPFL).
3.In the alternative to orders 1 and 2, the Rosedale Receivers pay the balance of the sale proceeds of the assets which comprised the Rosedale Land and Business to TPFL.
4.Following compliance with orders made in respect of the relief claimed in either paragraph 2 or 3 above:
(a)the Rosedale Receivers be discharged and released from their appointment as the Rosedale Receivers;
(b)pursuant to section 480 of the Act and rule 7.5 of the Corporations Rules, David Winterbottom and Martin Madden in their capacities as liquidators of Windsor Village and Rosedale (Liquidators), be released; and
(c)pursuant to section 480 of the Act and rule 7.5 of the Corporations Rules, the Australian Securities and Investments Commission deregister each of Windsor Village and Rosedale.
The defined terms have the same meaning as in the Waterfall Orders, unless otherwise specified.
The application was supported by an affidavit sworn by David Winterbottom on 31 January 2013 (the Winterbottom Affidavit). As is self evident, the application primarily concerns amendment to Order 1(e) of the Waterfall Orders to enable a distribution to be made to Mr Yeo, the Tenth Defendant. The balance of the application concerns the retirement of the Rosedale Receivers and the deregistration of Windsor Village and Rosedale.
Current state of Rosedale, the Rosedale Scheme and Windsor Village
Other than cash at bank held by Rosedale, none of Rosedale, the Rosedale Scheme or Windsor Village has other assets. The cash at bank represents sale proceeds of assets sold by the Rosedale Receivers. The Court was provided with summaries of receipts and payments of the Rosedale Receivers and the Rosedale Liquidators as well as statements of financial position of Rosedale and Windsor Village as at 31 January 2013.
Waterfall Orders
The Waterfall Orders provide for the manner of distribution of the cash at bank. There were insufficient funds to make distributions in full so the amounts payable were to be calculated pro-rata in accordance with the Waterfall Orders. The Waterfall Orders are attached as Annexure A to these reasons for judgment.
History of the Application
By letters dated 5 June 2012, Ashurst Australia informed each of Kemp Strang (on behalf of TPFL), RFA Finance Limited (ACN 105 114 910) (RFA), Huntley Custodians Limited (ACN 082 237 214) (Huntley), Bartier Perry (on behalf of Mr John Montgomerie, the Ninth Defendant) and SBA Law (on behalf of Mr Yeo, the Tenth Defendant) of intended distributions and requested that they contact Ms Jenny Nettleton of KordaMentha in respect of any queries about the intended distributions by no later than 19 June 2012. No party indicated that they had any issue with the distributions identified in the letters of 5 June 2012.
In accordance with the Waterfall Orders, the Rosedale Receivers made the following payments from the sale proceeds:
1. pursuant to order 1(d) of the Waterfall Orders, the following amounts were paid in respect of the Advance:
(a) on 11 March 2010, the sum of $4,739.05 was paid to Mr Montgomerie;
(b)on 2 December 2011, a further sum of $38,483.96 was paid to Mr Montgomerie; and
(c)on 21 June 2012, a further sum of $9,841.93 was paid to Mr Montgomerie,
2. pursuant to order 1(e) of the Waterfall Orders and the orders of 22 November 2011 (in which the Court assessed Mr Montgomerie’s legal costs in the sum of $190,991.46 (inclusive of goods and services tax (GST)), on 21 June 2012 the sum of $46,028.94 was paid to Mr Montgomerie; and
3.pursuant to order 1(f)(ii) of the Waterfall Orders:
(a)on 21 June 2012, the sum of $95,000 was paid to TPFL; and
(b)on 1 August 2012, a further sum of $20,000 was paid to TPFL.
However, the Rosedale Receivers have not made a distribution to Mr Yeo. The reason for that requires some explanation. Paragraph 1(e) of the Waterfall Orders provides for the distribution of funds in payment of the “investor representatives’ legal costs (pursuant to the orders made by the Court on 21 March 2007 as varied by [the Waterfall Orders])”. By the orders of 21 March 2007, in so far as they relate to the remuneration of investor representatives of the Rosedale Scheme, (as varied by the Waterfall Orders), they relate only to Mr Montgomerie and not Mr Yeo.
However, on 21 June 2007, the Court ordered that Mr Yeo:
… be indemnified out of the assets of the Rosedale Scheme for all reasonable remuneration and reasonable costs and expenses necessarily incurred in the performance of his duties in his capacity as representative of those members of the Rosedale Scheme who contributed only monies worth as their consideration to acquire an interest in the Rosedale Scheme with such remuneration to be calculated on the basis of time reasonably spent by him and his staff ... such remuneration, costs and expenses to be paid out of the assets of the Rosedale Scheme with priority after the reasonable remuneration and reasonable costs and expenses of the Rosedale Receivers.
On 23 November 2012, Mr Yeo’s remuneration and costs in relation to the Rosedale Scheme were assessed in the sum of $33,101.50 (the Provisional Assessment).
Therefore, it is unsurprising that the Rosedale Receivers seek an order that order 1(e) of the Waterfall Orders be amended to afford Mr Yeo equal fourth priority under the Waterfall Orders.
The Retirement Application, together with the Winterbottom Affidavit and the principal exhibit (Ex DJW-9) was served on the plaintiff, the Australian Securities and Investments Commission (ASIC), and each of the defendants (other than the second defendant). The Retirement Application, the Winterbottom Affidavit and the principal exhibit were also provided to (or at least brought to the attention of) the following interested parties – TPFL, the Medina Partners, John Alfred Allen, ATG Estates Pty Ltd (formerly the Allen Taylor Group Pty Ltd), RFA, Huntley, Strategy Investors Pty Limited (Strategy), Great Victoria Long Term Investment Holdings Ltd and Equitable Overseer Pty Ltd. The Court was informed that the letter of service posted to Strategy was returned to Ashurst Australia, the solicitors for the Rosedale Receivers and the Rosedale Liquidators.
No party or other interested person served with notice of the application has indicated that it opposed the Retirement Application. ASIC informed Ashurst Australia, the solicitors for the Rosedale Receivers and the Rosedale Liquidators, that it did not wish to make submissions or be heard in relation to the Retirement Application.
The Winterbottom Affidavit states that if the Court grants the Retirement Application:
Mr Yeo would receive a distribution of $8,775.21;
TPFL would receive $8,775.21 less than it would otherwise receive; and
no other party or interested person would be affected in terms of the distribution they have or would otherwise receive.
On 31 July 2012, Ashurst Australia wrote to Kemp Strang on behalf of TPFL to explain the proposed amendment to order 1(e) of the Waterfall Orders and the impact on TPFL. On 7 August 2012, TPFL confirmed that it had no objection to the proposed amendment to order 1(e) of the Waterfall Orders.
The Winterbottom Affidavit went on to explain that after deducting the sum of $8,775.21, a sum of $808.64 will remain in the Rosedale Scheme’s bank account and that the Rosedale Receivers intend to utilise these funds to cover the cost of closing the bank account and paying any associated bank fees. The balance of funds (if any) the Rosedale Receivers will then pay to TPFL in accordance with order 1(f)(ii) of the Waterfall Orders.
Due to a shortfall in funds, no distribution will be made to:
Medina in accordance with order 1(f)(i) of the Waterfall Orders;
the unsecured creditors of the Rosedale Scheme in payment of their unsecured debts in accordance with order 1(h) of the Waterfall Orders; or
the investors of the Rosedale Scheme in payment of their entitlements as investors in accordance with order 1(i) of the Waterfall Orders.
In my view, it is appropriate to recall paragraph 1(e) of the Waterfall Orders and in lieu thereof it be ordered that:
(f) Fourth, in payment of Montgomerie’s legal costs (pursuant to the orders made by the Court on 21 March 2007 as varied by this order) and Andrew Yeo’s remuneration and costs and expenses (pursuant to the orders made by the Court on 21 June 2007) such costs to be:
(i)apportioned as between Medina and Teys in the Medina Proportion and the Teys Proportion respectively, with the Medina Proportion being paid from the sale proceeds of that part of the Rosedale Land and Business which is secured in favour of Medina and the Teys Proportion being paid from the sale proceeds of that part of the Rosedale Land in respect of which Teys claims an interest by way of subrogation; and
(ii)agreed by the parties; or
(iii)approved by the Court in absence of any agreement.
Liquidators’ release
Following compliance with the payments referred to above, the Rosedale Receivers seek to be discharged and released from their appointment as the Rosedale Receivers and, pursuant to s 480 of the Corporations Act 2001 (Cth) (the Act) and r 7.5 of the Federal Court (Corporations) Rules 2000 (Cth) (the Rules), the Rosedale Liquidators seek to be released. In addition, the Rosedale Liquidators seek an order pursuant to s 480 of the Act and r 7.5 of the Rules, that ASIC deregister each of Windsor Village and Rosedale. I am satisfied that those Orders should be made.
Subject to one matter (which is addressed below), no claims against the Rosedale Scheme, Rosedale or Windsor Village remain unsatisfied or unresolved. The only outstanding claims relate to the non-payment of an amount to the Rosedale Liquidators (in accordance with paragraph 1(g)(ii) of the Waterfall Orders) and the non-payment of an amount to the Rosedale Receivers. However, the Rosedale Liquidators did not make any calls on the contributories of either Rosedale or Windsor Village. The Rosedale Liquidators have not disclaimed any of Rosedale’s or Windsor Village’s property.
There is no committee of inspection for Rosedale or Windsor Village. Accordingly, there has been no resolution by any such committee to approve the Rosedale Liquidators’ release. ASIC has not appointed an auditor to report on the account or statement of the position in the winding up of Rosedale or Windsor Village under s 539(2) of the Act. The Court has not ordered that a report on the accounts of the Rosedale Liquidators be prepared. The Rosedale Liquidators have not received any objection to the release of the Rosedale Liquidators from any creditor, contributory of the Rosedale Scheme, Rosedale or Windsor Village or any other interested person.
On 26 September 2011, the Rosedale Liquidators submitted reports to ASIC in respect of each of Rosedale and Windsor Village pursuant to s 533 of the Act (Section 533 Report). The Section 533 Report is confidential. For present purposes, it is sufficient to record that the Rosedale Liquidators did not and do not consider it necessary to report on the affairs of either Rosedale or Windsor Village or any of their officers.
Other than the amounts identified in [0] above, no further costs, charges or expenses are payable by the Rosedale Liquidators or the Rosedale Receivers. Mr Winterbottom has provided sworn evidence that to the best of his belief, there has been no act done or default made by him or Mr Madden in the administration of the affairs of the subject corporations or otherwise in relation to their conduct as liquidators which is likely to give rise to any liability to the subject corporations or any creditor or contributory and he not aware of any claim made by any person that there has been any such act or default.
In those circumstances, I would grant the relief sought.
| I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. |
Associate:
Dated: 17 May 2013
ANNEXURE A
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
No: (P)VID590/2006
AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION
Plaintiff
GDK FINANCIAL SOLUTIONS PTY LTD (ACN 085 488 311)
First Defendant
WINDSOR VILLAGE MANAGEMENT PTY LTD (IN LIQUIDATION) (ACN 088 339 913)
Second Defendant
WESTERN RETIREMENT VILLAGE MANAGEMENT PTY LTD (ACN 091 443 239)
Third Defendant
THE MEWS VILLAGE NOMINEES PTY LTD (IN LIQUIDATION) (ACN 091 526 224)
Fourth Defendant
PERIDON MANAGEMENT PTY LTD (IN LIQUIDATION) (ACN 088 322 276)
Fifth Defendant
ROSEDALE VILLAGE NOMINEES PTY LTD (IN LIQUIDATION) (ACN 089 667 096)
Sixth Defendant
PETER HASTINGS WARNE
Seventh Defendant
RENTAL FLEETS AUSTRALIA PTY LTD (ACN 082 558 978)
Eighth Defendant
JOHN MONTGOMERIE
Ninth Defendant
ANDREW REGINALD (TRUSTEE OF BANKRUPT ESTATE OF ROHAN ELLIOT VON STANKE) YEO
Tenth Defendant
GUISEPPE DE SIMONE
Eleventh Defendant
SEACHANGE MANAGEMENT PTY LTD (ACN 091 443 211)
Twelfth Defendant
ORDER
| JUDGE: | Justice Finkelstein |
| DATE OF ORDER: | 18 November 2008 |
| WHERE MADE: | Melbourne |
THE COURT NOTES THAT:
The Rosedale Receivers (as defined in paragraph 31 of the Orders of the Court dated 28 November 2006) of the Rosedale Land and Business have put forward a proposal for the distribution of the sale proceeds of the Rosedale Business and the Rosedale Land being the land comprised in Certificates of Title folio identifiers Lot A/DP 367471, Lot 21/DP 212248, Lot 6/DP 25898, Lot 5/DP 25898, Lot 1/DP 733540 and Lot 7/DP25898.
For the purposes of the proposal, the Rosedale Receivers have assumed that there are no other entities which claim a proprietary interest in the Rosedale Land and Business other than TEYS Property Funds Limited ACN 105 164 047, its related entity R.F.A Finance Limited ACN 105 144 910 and Huntley Custodians Limited ACN 082 237 241 (together Teys), Medina Partners (Medina) and John Montgomerie (Montgomerie) despite the fact that Teys’ claim is by way of subrogation to the registered mortgages held by National Australia Bank Limited over Lot 1 of DP 733540 and by IMB Limited over Lots 5 and 7 of DP 25898.
The following orders are intended to resolve an amended application filed by Teys in this proceeding on 15 September 2008, an application made by Montgomerie in this proceeding dated 21 October 2008 and to facilitate the distribution of sale proceeds of the assets which comprise the Rosedale Land and Business by the Rosedale Receivers as and when each of the titles to, and other assets of, the Rosedale Land and Business are sold based on the following priority waterfall:
(a) first, to meet the direct costs of the sale;
(b)second, to meet essential payments to preserve and to maintain the village and the Rosedale Scheme property secured in favour of Medina to a value of $175,817, to be paid from the proceeds of sale of that part of the Rosedale Land and Business that is secured in favour of Medina;
(c)third, but excluding those fees and disbursements relating to the Rosedale Receivers’ dealings with property over which the Commonwealth Bank held security, to meet the Rosedale Receivers’ unpaid fees and disbursements associated with their appointment to the Rosedale Scheme’s assets, on the basis that:
(i)the Rosedale Receivers’ fees and disbursements relating to the Rosedale Village be paid from the proceeds of sale of that part of the Rosedale Land and Business that is secured in favour of Medina; and
(ii)the balance of the Rosedale Receivers’ fees and disbursements associated with the receivership of the Rosedale Scheme be apportioned as between Medina in the proportion 75.9% (Medina Proportion) and Teys in the proportion 24.1% (Teys Proportion), with the Medina Proportion being paid from property secured in favour of Medina and the Teys Proportion being paid from property in which Teys claims an interest by way of subrogation;
(d)equal third, in payment of the sum of $77,000.00 claimed by Montgomerie in respect of funds advanced by him for the purpose of paying (in part) the costs associated with the receivership of the Rosedale Scheme and liquidation of Rosedale Village Nominees Pty Limited (in Liquidation) (Advance);
(e)fourth, in payment of the investor representative’s agreed legal costs (pursuant to the orders made by the Court on 21 March 2007 as varied by this order), to be apportioned as between Medina in the Medina Proportion and Teys in the Teys Proportion, with the Medina Proportion being paid from property secured in favour of Medina and the Teys Proportion being paid from property in which Teys claims an interest by way of subrogation;
(f)fifth, to Medina in repayment of debt which is secured by the Rosedale Land and Business, to be paid from the proceeds of sale of that part of the Rosedale Land and Business that is secured in favour of Medina and to Teys in repayment of debt which is secured by the Rosedale Land, to be paid from the proceeds of sale of that part of the Rosedale Land in respect of which Teys claims an interest by way of subrogation; and;
(g)sixth, in payment of the liquidators’ fees and disbursements, and the Rosedale Receivers’ fees and disbursements relating to dealings with property over which the Commonwealth Bank held security, to be paid from any surplus proceeds of sale of the Rosedale Land and Business.
…
For the purposes of Order 3 of this order, Montgomerie acknowledges and agrees that costs necessarily and properly incurred by him since the commencement of this proceeding in his capacity as representative of the members of the Rosedale Scheme other than those members who contributed only money’s worth as their consideration to acquire an interest in the Rosedale Scheme excludes (which list is not intended to be exhaustive):
(a)Montgomerie’s costs associated with his efforts to rescue the Rosedale Scheme;
(b)Montgomerie’s costs associated with the Advance; and
(c)Montgomerie’s costs associated with the claims made in his application dated 21 October 2008.
The Orders made on 21 March 2007 and 30 September 2008 are confirmed and or varied as set out below.
THE COURT ORDERS THAT:
Upon the sale of any of the assets included in the Rosedale Land and Business, the Rosedale Receivers (as defined in paragraph 31 of the Orders of the Court dated 28 November 2006) are to pay the sale proceeds of the assets included in the Rosedale Land and Business from time to time received in the following order:
(a)First, in payment of the direct costs of the sale of the Rosedale Land and Business, including but not limited to:
(i) marketing costs;
(ii) agent’s Commission; and
(iii) government Fees.
(b)Second, in payment of expenses incurred by the Rosedale Receivers in order to preserve and maintain the Rosedale Business and the Rosedale Land which is encumbered by first ranking mortgages held by Medina only up to an amount of $175,817 plus goods & services tax (GST) or such other amount as may be ordered by the Court to be paid out of the sale proceeds of that part of the Rosedale Land and Business which is secured in favour of Medina.
(c)Third:
(i)excluding the fees and disbursements identified in 1(c)(ii) and 1(g)(i) below, in payment of the Rosedale Receivers’ reasonable fees and disbursements properly incurred in the performance of their duties and the exercise of their powers as receivers or receivers and managers (as the case may be) of the Rosedale Land and Business, such fees and disbursements to be:
(a)except in respect of costs which are directly attributable to the Rosedale Business, apportioned as between Medina and Teys in the Medina Proportion and the Teys Proportion respectively, with the Medina Proportion being paid from the sale proceeds of that part of the Rosedale Land and Business which is secured in favour of Medina and the Teys Proportion being paid from the sale proceeds of that part of the Rosedale Land in respect of which Teys claims an interest by way of subrogation;
(b)in respect of costs which are directly attributable to the Rosedale Business, paid out of the sale proceeds of that part of the Rosedale Land and Business which is secured in favour of Medina; and
(c)approved by the Court, and
(ii)in payment of the Rosedale Receivers’ reasonable fees and disbursements of Teys’ amended application dated and filed 15 September 2008 in an amount to be agreed between Teys and the Rosedale Receivers or, in the absence of agreement, to be approved by the Court and to be paid out of proceeds of sale of Rosedale Land in respect of which Teys claims an interest by way of subrogation.
(d)Equal third, in payment of the Advance payable to Montgomerie and if the said property is insufficient to meet the Advance and the Medina Proportion of the Rosedale Receivers’ fees and disbursements which are approved by the Court in full, they must be paid proportionately.
(e)Fourth, in payment of the investor representatives’ legal costs (pursuant to the orders made by the Court on 21 March 2007 as varied by this order), such costs to be:
(i)apportioned as between Medina and Teys in the Medina Proportion and the Teys Proportion respectively, with the Medina Proportion being paid from the sale proceeds of that part of the Rosedale Land and Business which is secured in favour of Medina and the Teys Proportion being paid from the sale proceeds of that part of the Rosedale Land in respect of which Teys claims an interest by way of subrogation; and
(ii)agreed by the parties; or
(iii)approved by the Court in absence of any agreement.
(f)Fifth:
(i)in payment of debt which is owed to Medina in respect of which Medina holds security, to be paid from the sale proceeds of that part of the Rosedale Land and Business which is secured in favour of Medina; and
(ii)in payment of debt which is owed to Teys in respect of which Teys claims an interest by way of subrogation, to be paid from the sale proceeds of that part of the Rosedale Land (being Lot 1 of DP 733540 and Lots 5 and 7 of DP 25898) in respect of which Teys claims an interest by way of subrogation.
(g)Sixth:
(i)in payment of the Rosedale Receivers’ reasonable fees and disbursements directly attributable to the Rosedale Receivers’ dealings with the property over which the Commonwealth Bank held security, such costs to be approved by the Court, and
(ii)in the payment of the liquidators’ of Rosedale Village Nominees Pty Limited (in Liquidation) and the liquidators’ of Windsor Village Management Pty Ltd (in Liquidation) reasonable fees and disbursements, such costs to be approved by the Court.
(h)Seventh, to the unsecured creditors of the Rosedale Scheme in payment of their unsecured debts and if the property of the Rosedale Scheme is insufficient to meet them in full, they must be paid proportionately.
(i)Eighth, to the investors of the Rosedale Scheme in payment of their entitlements as investors and if the property of the Rosedale Scheme is insufficient to meet them in full, they must be paid proportionately.
All parties and Teys and Medina to execute all necessary transfers, withdrawals of caveats and other documents, and take all other action necessary on their part, to transfer the legal title to the Rosedale Land and Business to any purchaser accepted by the Rosedale Receivers.
Order 7 made on 21 March 2007 in this proceeding be recalled and in lieu thereof it be ordered that:
Montgomerie be indemnified out of the assets of the Rosedale Scheme against all costs necessarily and properly incurred by him since the commencement of this proceeding in his capacity as representative of the members of the Rosedale Scheme other than those members who contributed only money’s worth as their consideration to acquire an interest in the Rosedale Scheme with priority after the costs and expenses of the Rosedale Receivers.
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