CMC Cairns Pty Ltd (in liquidation)

SUPREME COURT OF QUEENSLAND

CITATION:

Re CMC Cairns Pty Ltd (in liquidation) [2011] QSC 240

PARTIES:

TERRY VAN DER VELDE AND DAVID STIMPSON AS ADMINISTRATORS OF CMC CAIRNS PTY LTD (in administration)
ACN 010 861 579

(applicant)

FILE NO/S:

SC No 6148 of 2009

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Delivered ex tempore 12 July 2011

DELIVERED AT:

Brisbane

HEARING DATE:

12 July 2011

JUDGE:

Atkinson J

ORDER:

Pursuant to s 447A and s 449E(2) of the Corporations Act 2001 (Cth), the applicants’ additional remuneration as administrators of CMC Cairns Pty Ltd (in liquidation) from 25 August 2009 to 15 September 2009 be increased by the sum of $49,018 plus GST.

CATCHWORDS:

CORPORATIONS – VOLUNTARY ADMINISTRATION – ADMINISTRATOR – REMUNERATION – where the liquidators of the company made an application pursuant to s 447A and s 449E of the Corporations Act 2001 (Cth) for approval of additional remuneration to them whilst they were acting as administrators – where the further remuneration was approved by the creditors at the general meeting – where the company was already in liquidation and was therefore not sufficient authority for the approval of the fees – whether the powers conferred by the Corporations Act were broad enough to make the orders sought

Corporations Act 2001 (Cth), s 447A, s 449E

Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270, cited

Lombe, in the matter of Bosnjak Holdings Pty Ltd (Administrators appointed) [2005] FCA 275, cited

COUNSEL:

 Lambros A J for the applicant

SOLICITORS:

 Bennett & Philp Lawyers for the applicant

HER HONOUR: This is an application made under section 447A and section 449E of the Corporations Act 2001 (Cth) for approval of additional remuneration to the administrators, who are now the liquidators, of the company in the sum of $49,018 plus GST whilst they were acting as administrators.

It is necessary to set out some of the background facts which are taken from the submissions of the applicants. 

After CMC Cairns Pty Ltd (in administration) ACN 010 861 579 (the company) went into administration, a second meeting of creditors was held on 25 August 2009.  The creditors resolved that the company execute a deed of company arrangement.

It was, it is submitted, a complex proposal which also required a Creditors’ Trust to be incorporated and numerous security documents and guarantees to be provided.  This proposal had been put forward by the directors themselves who had indicated they could sign the documents as soon as they were prepared. 

At that meeting, the applicants sought approval for remuneration for their fees of $40,000 for the time between the second meeting being held and the deed of company arrangement being executed. That remuneration was approved by the creditors at the second meeting. Such approval is provided for under section 449E(1)(b) of the Act.
Unfortunately, matters did not go as planned or as predicted.  The directors caused many problems and requested numerous meetings with the administrators to discuss the execution…