Australian Securities and Investments Commission v Marco (No 9)

The case of Australian Securities and Investments Commission v Marco (No 9) involves an application by the external administrators for a remuneration determination under section 60-10(1)(c) of the Insolvency Practice Schedule, Schedule 2 of the Corporations Act 2001 (Cth). The primary dispute concerns whether the administrators are entitled to claim remuneration from the company's assets, especially given that all of the company's assets were held as trustee. This matter was brought before the court to determine the legal rights and obligations of the parties involved.

The legal issues that the court needed to decide in this case included the scope of the administrators' right to remuneration and whether the indemnity rights of a trustee extend to cover the remuneration of a voluntary administrator. A critical consideration was the nature of the trustee's proprietary interest in the trust property and whether this interest could support the right of indemnity for the administrators' remuneration. The court had to examine the specific circumstances of the case, including the role of the trustee and the nature of the assets held by the trustee.

The court's reasoning focused on the fact that the administrators undertook significant investigative activities without seeking court direction, which led to duplicated efforts and increased costs for investors. The court acknowledged that the administrators had a right to remuneration but noted that the substantial sum claimed was not to be automatically approved. The court suggested that the issue of quantum should be referred to mediation, with a potential subsequent referral back to the court if mediation failed to reach an agreement. The court emphasized that the determination of remuneration should not be a blanket approval of the significant sum claimed by the administrators.

The final orders of the court included a declaration that the administrators are entitled to some remuneration from the property as defined in the reasons. The court directed that the issue of quantum should be referred to mediation by a Registrar of the Court. If an agreement on quantum could not be reached, the matter would be referred back to the court for resolution. The costs of the application were to be reserved to the mediation or further order of the court.