BETWEEN: MARK ANTHONY CONLAN as Liquidator of ROWENA NOMINEES PTY LTD (Receiver and Manager Appointed) (In Liquidation) (ACN 008 818 273)
Appellant
AND
K F & A C ADAMS & ORS First Respondents
KARRI OAK LTD (In Liquidation) (ACN 079 845 766) Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MASTER SANDERSON
Citation :AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION -v- ROWENA NOMINEES PTY LTD (IN LIQ) (RECEIVER AND MANAGER APPOINTED) (SUPERVISOR APPOINTED) [2006] WASC 36
File No :COR 131 of 1999
Catchwords:
Corporations law - Remuneration of liquidator - s 473(3) Corporations Act - Sufficiency of evidence - Broad brush approach - Relevance of considerations taken into account - Approach to time based costing - Turns on own facts
McLURE JA: This is an appeal from the order of Master Sanderson made on 30 March 2006 allowing remuneration for the appellant for the period 21 July 1999 to 31 August 2003 in the sum of $200,000 plus GST. The appellant applied under s 473(3) of the Corporations Act 2001 (Cth) for remuneration in the sum of approximately $597,970 plus GST.
The application was largely heard by the master on 6 and 7 September 2004. His reasons were delivered on 8 March 2006 and the order under appeal was made…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Conlan v Adams [2008] WASCA 61
Case
[2008] WASCA 61
Decision Date
CaseChat Overview and Summary
In Conlan v Adams, the appellant, Mark Anthony Conlan, sought various orders in relation to his remuneration as liquidator of Rowena Nominees Pty Ltd. The respondents objected to several proposed orders, including the backdating of the total remuneration to the date of the orders, the claim for indemnity costs, a further interim payment, a certificate for the cost of the transcript, and an order for the respondents' costs of the appeal to be taxed and paid from the trust fund. The court found that the backdating of the order should not apply as interest would be payable from the date of the judgment, but the $200,000 plus GST already received should be preserved. The court declined the appellant's application for indemnity costs due to the parties' conduct in the proceedings below. A further interim payment was justified due to significant delays, and the request for a certificate for the cost of the transcript was allowed as it related to the proceedings before the Master. Finally, the court ordered that the respondents' taxed costs of the appeal be paid from the trust funds, as there was no challenge to the order and no suggestion that the respondents acted unreasonably in defending the appeal.
The court's decision addressed several legal issues, including the sufficiency of evidence for the appellant's claim for remuneration, the relevance of considerations taken into account by the Master, the approach to time-based costing, and the application of the broad brush approach in determining the reasonableness of the remuneration. The court found that the Master's decision to allow the appellant's claim for remuneration was based on a broad brush approach, which was appropriate in the circumstances. The court also found that the considerations taken into account by the Master were relevant and appropriate, and that the time-based costing method used was reasonable. The court concluded that the Master's decision was not erroneous or unreasonable, and that the appellant was entitled to the remuneration claimed.
The court's reasoning in this case highlights the importance of considering the broad brush approach in determining the reasonableness of a liquidator's remuneration, as well as the relevance of the considerations taken into account by the Master. The court also emphasised the need for parties to conduct their cases efficiently and professionally, particularly in relation to the presentation and conduct of the cases below. The court's decision provides guidance for liquidators and creditors in relation to the determination of remuneration, and the approach to be taken in assessing the reasonableness of such claims. The court's orders in this case reflect a balanced approach to the resolution of the dispute, taking into account the interests of both the appellant and the respondents.
Orders
Orders of the court
Appeal allowed
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
JUDGMENT OF THE COURT: The court handed down its reasons for judgment in this matter on 17 March 2008 (Conlan v Adam [2008] WASCA 61). The respondents objected to a number of the orders sought by the appellant in his Minute of Proposed Orders. First, the respondents objected to proposed order 4 which provided that the total remuneration be allowed with effect from 30 March 2006, being the date of the orders the subject of the appeal. The respondents' objection was based on the fact that interest would be payable from that date. Counsel for the appellant informed the court that the purpose of backdating the order was to explain and justify the $200,000 plus GST already received pursuant to the order made by the Master and the intent was not 'to seek interest through the backdoor'. Both parties agree that the relevant order made by the Master should be set aside. Unless otherwise ordered, a judgment or order of this court takes effect from the day on which it is pronounced: O 42 r 2 of the Rules of the Supreme 1971 (WA); Smolarek v Liwszyc [2006] WASCA 50 (S). Interest is payable on the judgment sum from the date of the judgment: Civil Judgments Enforcement Act 2004 (WA) s 8. It is appropriate to preserve the status quo in relation to the allowance of $200,000 plus GST made by the Master but not otherwise backdate the order. Accordingly, order 4 should read:In accordance with the interlocutory process dated 12 January 2004 in proceedings COR 131 of 1999, the remuneration of Mark Anthony Conlan as liquidator of Rowena Nominees Pty Ltd (Receiver and Manager Appointed) (In Liquidation) (ACN 008 818 273) ('appellant') for the period 21 July 1999 to 31 August 2003 be allowed in the sum of:(a)$200,000 and GST thereon with effect from 30 March 2006; plus(b)$397,971.18 less(i)the amount of $487.70 claimed for the Karri Oak litigation; and(ii)the total of the amounts disallowed pursuant to Orders 5 ‑ 8 hereof ('Amounts Disallowed'); plus(c)the GST applicable to the net amount in (b). Secondly, the respondents object to the appellant's claim for indemnity costs. This court was critical of the presentation and conduct by the parties of their cases below which also impeded the efficient disposal of the appeal. We would decline the appellant's application for indemnity costs. Thirdly, the respondents object to the appellant's claim for a further interim payment pending the determination of the final amount. A further interim payment is justified by the very significant delays to date. Fourthly, the respondents object to the request for a certificate for the cost of the transcript. The opposition was put on the basis that it was the cost of the appeal transcript. The application relates to the cost of the transcript of the proceedings before the Master which in the circumstances was appropriately incurred. Finally, the respondents seek an order that their costs of the appeal be taxed and paid out of the trust fund. A similar order was made in relation to the proceedings before the Master. There is no challenge to that order notwithstanding the appellant's success in the appeal. The creditors having rejected the appellant's claim for remuneration, it is appropriate that there be no challenge to that order. There being no suggestion the respondents acted unreasonably in defending the appeal, we would order that the respondents' taxed costs of the appeal be paid from the trust funds.