Australian Securities and Investments Commission v Marco (No 10)

[2021] FCA 1342

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Marco (No 10) [2021] FCA 1342

File number:

WAD 481 of 2018

Judgment of:

MCKERRACHER J

Date of judgment:

29 October 2021

Catchwords:

CORPORATIONS – application by Court-appointed receivers for interim payment of remuneration pending determination by a registrar – fixing of an appropriate percentage for interim payment – whether interim payment is subject to appropriate safeguards   

Cases cited:

Australian Securities and Investments Commission v Marco (No 7) [2021] FCA 429

Australian Securities and Investments Commission v Marco (No 8) [2021] FCA 885

Division:

General Division

Registry:

Western Australia

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Number of paragraphs:

4

Date of last submissions:

27 October 2021

Date of hearing:

Determined on the papers

Counsel for the Receivers:

M A Chai with Mr J Salman

Solicitor for the Receivers:

Ashurst Australia

ORDERS

WAD 481 of 2018

BETWEEN:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Plaintiff

AND:

CHRIS MARCO

First Defendant

AMS HOLDINGS (WA) PTY LTD (RECEIVERS APPOINTED) (ADMINISTRATORS APPOINTED) (ACN 164 700 485)

Second Defendant

AMS HOLDINGS (WA) PTY LTD (RECEIVERS APPOINTED) (ADMINISTRATORS APPOINTED) (ACN 164 700 485) AS TRUSTEE FOR AMS HOLDINGS TRUST

Third Defendant

ROBERT MICHAEL KIRMAN AND ROBERT CONRY BRAUER AS RECEIVERS

Interested Persons

CAMERON HUGH SHAW, RICHARD ALBARRAN and MARCUS JON WATTERS OF HALL CHADWICK

Interested Persons

ORDER MADE BY:	MCKERRACHER J
DATE OF ORDER:	29 OCTOBER 2021

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 period from 5 June 2021 to 3 September 2021 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 application 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 5 June 2021 to 3 September 2021 in the amount equivalent to 85% of $87,379.05 (incl of GST) 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 be 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' / Interim 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 Federal Court of Australia Western Australia Registry Peter Durack Commonwealth Law Courts Building 1 Victoria Avenue Perth WA 6000 Fax: [phone]
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 6 of the orders made by McKerracher J on [insert date] 2021.

Signed:           …………………………
Date:              …………………………

REASONS FOR JUDGMENT

MCKERRACHER J:

1. Previous orders for remuneration of the Receivers (as there defined) were made in Australian Securities and Investments Commission v Marco (No 7)[2021] FCA 429 and in Australian Securities and Investments Commission v Marco (No 8)[2021] FCA 885.

2. Understanding of these brief reasons requires familiarity with the reasons in those judgments without the need to repeat their content in these reasons.

3. The Receivers have now prepared a third remuneration report which has received the same safeguards as the reports in Marco (No 7) and Marco (No 8). Payment of remuneration is sought.

4. For the reasons expressed in the reasons for those judgments and on the basis of the same protections, safe-guards and mechanisms there explained, I have made similar orders in relation to this third application for remuneration for the period 5 June 2021 to 3 September 2021.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McKerracher.

Associate:

Dated:       29 October 2021