Australian Securities and Investments Commission v Marco (No 15)

The case before the court involved a dispute regarding the remuneration and costs claimed by former administrators and liquidators of a company, in the context of an application under sections 60-10(1)(c) and 90-15 of the Insolvency Practice Schedule (Corporations), which is Schedule 2 to the Corporations Act 2001 (Cth). The administrators were seeking payment for their work in relation to a proposed deed of company arrangement during a pending winding-up application by the Australian Securities and Investments Commission (ASIC). The company had no assets and no business in its own right, and its assets were subject to asset preservation orders. The current liquidators objected to the claimed remuneration and costs, arguing that the work performed by the former administrators was not necessary or reasonable given the circumstances of the administration.

The court had to determine whether the former administrators were entitled to the remuneration and costs claimed, considering the applicable principles and whether the work performed was necessary and reasonable. Additionally, the court had to consider an application by the current liquidators to reopen perfected orders, specifically a declaration of right, made in previous proceedings. The court examined whether the orders were final or interlocutory, whether they were founded on a misapprehension of law, and whether discretionary factors favoured reopening the orders.

The court found that the interests of justice favoured finality and the prompt exercise of rights of appeal over dilatory applications to reopen perfected and substantive interlocutory orders. It concluded that the former administrators were entitled to a specified remuneration for the work performed, amounting to $100,192.26 including GST, and were also entitled to payment for disbursements and costs totalling $84,014.37 including GST. The court refused the application to reopen the perfected orders, noting that the orders were substantive and not interlocutory, and that there was no misapprehension of law. The costs of the application were reserved for further determination.

The court's decision emphasised the importance of finality in legal proceedings and the preference for timely appeals over applications to reopen orders. It also underscored the necessity for administrators to demonstrate that their work was reasonable and necessary in the context of the administration. The final orders reflected the court's determination of the appropriate remuneration and costs, while reserving the issue of further costs for later determination.