Gippsreal Ltd v David Anthony Ross and Richard Albarran
[2017] VSCA 257
•20 September 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0027
| GIPPSREAL LTD | Applicant |
| V | |
| DAVID ANTHONY ROSS | First Respondent |
| and | |
| RICHARD ALBARRAN | Second Respondent |
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| JUDGES: | WARREN CJ, KYROU and HANSEN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 July 2017 |
| DATE OF JUDGMENT: | 20 September 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 257 |
| JUDGMENT APPEALED FROM: | [2016] VSC 753 (Cameron J) |
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CORPORATIONS – Receivers appointed under charge – Remuneration – Deeds of appointment and indemnity – Each provided for cap of $15,000 plus GST – Separate indemnity for receivers that defence of litigation at mortgagee’s request be ‘at the expense’ of mortgagee – Construction – Whether cap applied to indemnity – If so, whether mortgagee waived reliance on cap.
EQUITY – Equitable lien – Receivers – Care, preservation and realisation of assets – Entitlement to lien – Uncertainty as to whether any amount that could attract lien – Inquiry.
PRACTICE AND PROCEDURE – Application to amend reply to allege waiver refused on first day of trial – Reasons for judgment found waiver established – Procedural fairness denied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J L Evans QC | Oakleys Legal |
| For the Respondents | Mr A R Kirby | Evans Ellis Lawyers |
WARREN CJ
KYROU JA
HANSEN JA:
This is an application for leave to appeal from the judgment and orders of a judge in the Trial Division on a claim by David Anthony Ross and Richard Albarran (‘the receivers’), as receivers and managers of Action Cycles Pty Ltd (‘Action Cycles’) against their appointor Gippsreal Ltd (‘Gippsreal’) for remuneration in connection with the receivership. The claim was based upon an indemnity or, alternatively, an equitable lien. As against that, Gippsreal contended, essentially, that the receivers’ entitlement was limited to a sum of $15,000 (plus GST) referred to in two deeds under which the receivers were appointed. There was no dispute that the receivers had performed the work in respect of which remuneration was sought, or as to the amount claimed in respect thereof.
Following a trial in July 2016, the judge delivered judgment in December 2016.[1] Her Honour upheld Gippsreal’s contention that there was a cap on remuneration of $15,000 but found that Gippsreal had by its conduct waived its right to rely on the cap. Her Honour further found that the receivers could rely on an equitable lien in relation to work in respect of a secured property being vacant land at Cowes. Subsequently, on 16 February 2017, the judge ordered that:
(1)there be judgment for the receivers for $107,544.37, being an amount calculated by the parties in light of the judge’s findings, and interest of $6,953.01;
(2)the assessment of the outstanding amounts of the receivers’ fees which are properly subject to an equitable lien in accordance with [165] and [166] of the Reasons be referred to an associate judge for hearing and determination; and
(3)Gippsreal pay the receivers’ costs of the proceeding on a standard basis, subject to the receivers paying Gippsreal’s costs of an application to amend their reply.
[1]Ross v Gippsreal [2016] VSC 753 (‘Reasons’).
Gippsreal seeks leave to appeal on the following grounds, in summary:
(1)the waiver was not part of the receivers’ pleaded case; thus it was not open to the judge to find waiver;
(2)even if it were open to the judge to have considered waiver, she erred in finding so;
(3)the judge erred in finding that an equitable lien could exist; and
(4)the judge erred in not providing reasons for the order as to costs.
The receivers filed a notice of contention relying on grounds that:
(1)the indemnity was not subject to the cap of $15,000;
(2)further and alternatively, the judge should have found that, under cl 3(a) of the deed of indemnity, the cap of $15,000 applied only to moneys made available to the receivers during the receivership and, as no moneys were made available before the receivers retired, the cap could not apply; and
(3)further and alternatively, the judge should have granted the receivers leave to file and serve an amended reply.
Background
Pursuant to a loan agreement made on 27 April 2010, Gippsreal lent Action Cycles $1.5 million. As security for repayment, Action Cycles granted Gippsreal a fixed and floating charge over its assets and a mortgage over vacant land at Cowes, and personal guarantees were provided by Mr Darren and Mrs Lorelle Gellie (‘the Gellies’), respectively the director and secretary of Action Cycles.
On 21 July 2011, pursuant to the charge, Gippsreal appointed the respondents as receivers of the assets of Action Cycles. The appointment was constituted by a deed of appointment and a deed of indemnity.
The receivers forthwith took possession of Action Cycles’ business premises, then a non-trading bicycle shop with stock, engaged valuers to assess the value of the stock (which was placed in safe keeping), attempted to sell the assets and performed some work relevant to the sale of the land at Cowes.
Very soon, however, Action Cycles engaged solicitors who, after correspondence, on 22 August 2011 commenced a proceeding (S CI 2011 04416) in the Supreme Court against the receivers and Gippsreal contending that Action Cycles was not in default under the loan agreement and seeking declarations that the receivers’ appointment was invalid, an injunction restraining them from acting upon their appointment, and a raft of other orders. On 2 September 2011, Ferguson J restrained the exercise of any power of sale until the hearing and determination of the proceeding. On 18 November 2011, on the defendants’ application, Ferguson J dissolved the injunction. On 23 November 2011, Action Cycles instituted an appeal (S APCI 2011 0181) against that order and, on 1 December 2011, the Court of Appeal restrained the exercise of any power of sale until the hearing and determination of the appeal and referred the appeal to Efthim AsJ for mediation.[2] The receivers and Gippsreal were represented in these matters by separate counsel and solicitors. These proceedings (including the appeal) are referred to as ‘the first proceeding’.
[2][2011] VSCA 411.
The mediation was had and the parties agreed to settle. By a deed of settlement entered into in late February 2012 the parties (Gippsreal, the receivers, Action Cycles and the Gellies) agreed to compromise the first proceeding (including the appeal). Among the range of obligations agreed upon by the parties, the receivers agreed to retire by 28 February 2012, and they did so retire.
Further, by the deed, Action Cycles and the Gellies acknowledged that the charge, the securities and the receivers’ appointment were valid, and that the amount they owed to Gippsreal under the securities as at 27 April 2012 was $2,336,782.74 (‘the amount outstanding’). This amount included $209,844.37 being the receivers’ remuneration and legal fees. Finally, Gippsreal agreed to accept payment of a discounted sum of $1,960,000 in full satisfaction of the amount outstanding, subject to payment being received on 27 April 2012.
On 23 March 2012, the Court of Appeal, by consent, dissolved the injunction, and dismissed the appeal with no order for costs.
In default of the deed of settlement, the discounted sum was not paid on 27 April 2012.
On 3 May 2012, Action Cycles and the Gellies issued a summons in the first proceeding — returnable in the Trial Division — seeking orders that Gippsreal and the receivers be restrained from selling any assets of Action Cycles or the Gellies, or from taking steps to enforce the deed of settlement.
On or about 8 May 2012, Gippsreal commenced a proceeding in the Supreme Court (S CI 2012 02626) against Action Cycles, the Gellies and the receivers to enforce the securities and for judgment for the amount outstanding, plus interest and possession of the Cowes land, and certain other land owned by the Gellies that was covered by their personal guarantees. These proceedings are referred to as ‘the second proceeding’. The only relief sought that concerned the receivers was, in common with all defendants, a declaration that the deed of settlement was valid and binding on the parties. The second proceeding thereafter ran in parallel with the first proceeding.
A little later in May 2012, Action Cycles and the Gellies filed a defence and counterclaim in the second proceeding which, in summary, sought relief that would constitute a complete discharge from any liability to Gippsreal. In addition to Gippsreal, the receivers were named as defendants to the counterclaim. The receivers were represented by the same solicitors and counsel in the first and second proceedings.
Action Cycles was not successful in its attempt to avoid liability. By consent, on 7 August 2012, Croft J made final orders in the first and second proceedings. The orders in the first proceeding included, in summary, that:
(1)Action Cycles and the Gellies pay Gippsreal $2,336,782.74 plus interest;
(2)Action Cycles and the Gellies pay Gippsreal $70,000 in respect of Gippsreal’s indemnity for the remuneration and disbursements of the receivers from 1 March 2012;
(3)Gippsreal recover possession of the Cowes land; and
(4)the proceeding and Gippsreal’s counterclaim be otherwise dismissed.
The orders in the second proceeding included a declaration that the deed of settlement was valid and binding upon the parties, and an order that Action Cycles and the Gellies pay the costs of the proceeding, counterclaim and the receivers on an indemnity basis. For this purpose, the receivers’ costs were by order fixed at $114,817.35.
On 10 September 2013, Leonard Legal, who acted as solicitors for the receivers in the first and second proceedings, advised Gippsreal that $434,884.70 was owed to the receivers under the deeds of appointment and indemnity, as to $188,331.18 on account of remuneration and as to $246,553.52 on account of legal fees.
On 16 February 2015, the receivers commenced the subject proceeding to recover:
(1)$203,517.54 (inclusive of GST) on account of remuneration; and
(2)$255,620.63 (inclusive of GST) on account of legal costs and disbursements.
Between May and June 2016, Gippsreal sold the Cowes land as mortgagee in possession. To facilitate this, Gippsreal had subdivided the land.
On 18 May 2016, Gippsreal and Leonard Legal compromised the claims made in 2013 in respect of legal costs and disbursements of the first and second proceedings. As a result, the trial proceeded only on the claim for $203,517.54. The amount of $203,517.54 is made up as follows:
Action Cycles Pty Ltd
Amount ($)
Fee Category
Amount ($)
WIP Report from 21.07.2011 to 2.09.2011
67,952.00
General Administration
8,113.15
Disbursements 21.07.2011 to 2.09.2011
1,598.78
Litigation
106,015.20
WIP Report from 3.09.2011 to 28.02.2012
53,853.85
Assets
66,667.50
Disbursements 21.07.2011 to 28.02.2012
1,614.35
TOTAL
$180,795.85
WIP Report from 1.03.2011 to 31.08.12
58,990.00
Disbursements
4,220.09
Disbursements 1.03.2012 to 31.08.2012
1,006.96
GST
18,501.59
GST
18,501.59
Total
$203,517.53
TOTAL
$203,517.53
Work in progress in this table was broken down as follows:
WIP 21.07.2011 to 2.09.2011 (appointment to injunction)
Row Labels
Hours
Amount
General Administration
9.4
3,102.50
Litigation
27.6
14,606.50
Assets
126.9
50,243.00
Total
163.9
$67,952.00
WIP 3.09.2011 to 28.02.2012 (injunction to retirement)
Row Labels
Hours
Amount
General Admin
12.25
3,102.15
Litigation
67.5
34,499.70
Assets
40.7
16,252.00
Total
120.45
$53,853.85
WIP 1.03.2012 to 31.08.2012 (post-retirement)
Row Labels
Hours
Amount
Litigation
133.3
56,909.00
General Admin
5.5
1,908.50
Assets
0.5
172.50
Total
139.3
$58,990.00
On 4 July 2016, during the trial, Gippsreal paid the receivers $16,500 being the capped amount of $15,000 plus GST, which the receivers accepted without prejudice.
Deeds of appointment and indemnity
Deed of appointment
By cl 1, Gippsreal appointed the receivers
to exercise all or any rights, powers and authorities and remedies conferred on the Mortgagee [Gippsreal] by the Charge and exercisable by the Mortgagee under or by virtue thereof and without prejudice thereto conform to the directions given by the Mortgagee from time to time.
Clause 4 provides:
The Mortgagee shall pay to the Receivers all reasonable charges, costs, fees and expenses (other than remuneration or professional fees of the Receivers or the Receivers’ firm, Hall Chadwick) payable to or incurred by the Receivers in relation to the appointment to the extent to which the Receivers do not apply moneys available to them for that purpose.
The Receivers shall be entitled to apply moneys available to them, subject to the consent of the Mortgagee in the appointment in payment of all remuneration (at the rates specified in the Schedule) payable to the Receivers in relation to the appointment from the assets of the Mortgagor, up to an amount of $15,000 (exclusive of GST).
Deed of indemnity
In a recital to this deed, it is stated that the receivers agreed to accept their appointment on condition that Gippsreal indemnify them in the manner provided in the deed.
Clause 1 contains an indemnity against liabilities ‘for or arising out of all actions, proceedings, claims, suits and demands, and all payments, costs and expenses (all included in the word Liabilities)’ incurred by the receivers in or arising out of the exercise of their powers. Certain exclusions from that indemnity are contained in cl 2, among which is the following:
(c)Any liability arising out of the remuneration incurred by the Receivers during the course of the appointment.
Clause 3 provides:
Expenses and Fees
(a)The Receivers shall be entitled to apply moneys available to [them] in the Receivership in payment of all remuneration (at the rates specified in the Schedule) payable to the Receivers in relation to the appointment from the assets of the Security Provider up to an amount of $15,000 plus GST subject to approval from the Mortgagee. The Receivers are entitled to reasonable costs and expenses incurred in relation to the appointment.
Clause 5 provides:
Receivers’ Obligations
The Receivers undertake and agree with the Mortgagee that:
(a)in the event of any claim being threatened or received in respect of any liability to which the indemnity in this deed extends, the Receivers shall immediately notify the Mortgagee in writing, and shall furnish the Mortgagee with all information available to the Receivers in relation to such claim(s);
(b)if so requested by the Mortgagee, the Receivers shall (at the expense of the Mortgagee) defend any such claim, and for that purpose shall, if required by the Mortgagee, employ solicitors nominated by the Mortgagee and co-operate fully with the Mortgagee and the nominated solicitors in the conduct of such defence;
…
(e)… the Receivers shall not invoke this indemnity against the Mortgagee until the Receivers have exhausted all claims the Receivers may have to a payment, contribution, guarantee or indemnity from others.
Clause 6(a) provides:
Limit of Liability
(a)A liability arising under or in connection with this Deed is limited to and can be enforced against the Mortgagee only to the extent to which it can be satisfied out of property of the Security Provider out of which the Mortgagee is actually indemnified for the liability. This limitation of the Mortgagee’s liability applies despite any other provision of this Deed and extends to all liabilities and obligations of the Mortgagee in any way connected with any representation, warranty, conduct, omission, deed or transaction related to this Deed.
Pleadings
It is necessary to identify how the case was pleaded.
Commencing with the statement of claim, paragraph 7 pleaded cl 1 of the deed of appointment and cls 1, 5(a) and 5(b) of the deed of indemnity.
Paragraph 8 then alleged that, in accordance with cl 1 of the deed of appointment, on and from 21 July 2011 until 28 February 2012 the receivers acted under their appointment in certain respects; this was admitted in paragraph 8 of the defence with two qualifications. First, the defence did not admit that the receivers had taken possession of, or appointed agents to sell, the Cowes land. Secondly, the injunctions had restrained the receivers from selling or taking steps to sell the land.
Paragraph 9 referred to the first proceeding (including the appeal) and the counterclaim in the second proceeding (referred to collectively as ‘the Proceedings’). Paragraph 10 alleged that, at the request of Gippsreal, the receivers defended the Proceedings by solicitors and counsel appointed for that purpose in consultation with Gippsreal and its legal representatives. In particulars, the request was said to be implied from the close consultation and co-operation in the defence of each of the Proceedings between the legal representatives for Gippsreal and the receivers. As to this, the defence (in paragraph 10(1)), admitted the allegation in respect of the first proceeding (including the appeal) from its commencement until 28 February 2012, but did not admit the allegation in respect of the second proceeding.
Paragraph 11 alleged that in the conduct of the receivership the receivers incurred professional fees and disbursements of $203,517.54 inclusive of GST. This is the claim that the case ultimately proceeded upon. As to this, paragraph 17 alleged that by reason of the appointment and cl 1 of the deed of indemnity, Gippsreal was liable to indemnify the receivers for that sum. The defence denied this claim, primarily on the basis of the cap of $15,000 in cl 4 of the deed of appointment, but also by reference to cls 2(c) and 3 in the deed of indemnity.
Finally, paragraph 18 of the statement of claim alleged that in the circumstances pleaded the receivers were entitled to a lien over the Cowes land to secure the amount claimed. The defence denied the claim.
It is appropriate to mention some aspects of the defence. First was a contention, based on cl 5(e) of the deed of indemnity, that the receivers’ claim was precluded because they had not exhausted all claims they might have to a payment from others. This contention was run at trial and rejected by the judge. Gippsreal does not challenge that conclusion.
Secondly, are those parts of the defence that relate to the receivers’ claim for legal costs and disbursements. As that claim was settled prior to trial it is not necessary to refer to those parts of the defence.
It is now important to refer to the reply which the receivers filed in September 2015.
In relation to the matter of the receivers having defended the first and second proceedings at the request of Gippsreal (as alleged in paragraph 10 of the statement of claim and as to which Gippsreal admitted only the request for the first proceeding) the reply stated:
(1)In paragraph 4, that after they retired on 28 February 2012, the receivers took no steps to defend ‘the Proceeding’, including engaging solicitors or counsel. Being expressed in the singular this would seem intended as a reference to the first proceeding, although as such it is inconsistent with paragraph 10 of the statement of claim which refers to ‘the Proceedings’;
(2)In paragraph 5, and as to paragraph 10 of the defence, that the receivers ‘defended the Proceedings’ (indicating thereby also the second proceeding) in consultation with Gippsreal in the course of which Gippsreal was ‘kept abreast of the progress of the Proceedings and relevant costs incurred’, which costs were ‘encouraged’ by Gippsreal. Particulars to this plea referred to five emails dated in the period September 2011 to February 2012, and one further email dated 10 August 2012 which merely referred to the amount the Gellies were to pay the receivers for their costs.
On the first day of the trial, the receivers’ counsel applied for leave to amend the reply. Objection was taken in relation to the introduction of a proposed paragraph 6A,[3] viz:
[3]There was also objection to the addition of a particular to paragraph 5, but that has been conceded as not being the critical point.
6AFurther to paragraphs 5 and 6 above, and alternatively, in the circumstances set out in paragraphs 5 and 6 above, and paragraphs 8 to 11 of the statement of claim, the Defendant [Gippsreal]:
(a)acquiesced in, and impliedly approved or consented to, the Plaintiffs’ professional fees under the Indemnity and Appointment exceeding any $16,500 cap;
(b)alternatively, waived reliance on any $16,500 cap under the Indemnity and Appointment;
(c)alternatively, varied the $16,500 cap under the Indemnity and Appointment to the higher figure of professional fees and disbursements incurred by the Plaintiffs –
if that cap applied in the circumstances (which is not admitted but expressly denied).
Following submissions from counsel, the judge refused the application and the trial proceeded. Her Honour gave short reasons for her decision: substantial delay would be caused if the amendments were allowed; the amount in question did not warrant the delay; the lateness of the application; loss of public confidence in the administration of justice if significant changes occur on the first day of a trial; and no satisfactory explanation for the lateness of the application. Aside from those matters, the amendments themselves would not have caused Gippsreal irreparable damage.
Judge’s reasons
Her Honour commenced with an analysis of the contractual right of the receivers to be paid remuneration and recover the costs and expenses of the receivership. Her Honour noted the different treatment of remuneration on the one hand, and expenses on the other, in cl 4 of the deed of appointment and cl 3(a) of the deed of indemnity; whereas there appeared to be a cap on recoverable remuneration of $15,000, such remuneration to be drawn from moneys available to the receivers, reasonable costs and expenses were payable by Gippsreal without limitation of amount.
Her Honour then referred to the contention of the receivers that cl 5(b) of the deed of indemnity created ‘a separate liability for Gippsreal to bear costs incurred by the Receivers in defending legal claims’.[4] Her Honour agreed, stating that the words ‘at the expense of the Mortgagee’ comprehended both remuneration and costs and expenses that arose or were incurred in defending a claim at Gippsreal’s request.
[4]Reasons [97].
Her Honour then considered the submission of Gippsreal that the $15,000 cap applied to limit the amount recoverable for remuneration. Her Honour said that cl 4 of the deed of appointment and cl 3(a) of the deed of indemnity distinguish between ‘remuneration’ and ‘costs and expenses’, and that the clear choice of words demonstrated an intention to keep the two concepts separate. Further, the language of the deeds made it clear that the parties did not use the terms ‘expenses’, ‘charges’ and ‘costs’ to mean professional fees and remuneration. Her Honour then concluded that, read together, ‘these clauses’ impose a cap on the amount of remuneration the receivers may claim, but do not qualify the amount of costs and expenses (which does not include remuneration) the receivers can claim if they are reasonable.[5] Her Honour then said:
From the plain language of the deeds, therefore, the cap limits Gippsreal’s liability to pay remuneration to the Receivers in relation to the receivership to the amount of $15,000 plus GST, provided moneys are available in the Receivers’ hands.[6]
[5]Ibid [108].
[6]Ibid [109].
That is, her Honour concluded that the word ‘expense’ in cl 5(b) did not include remuneration and that the $15,000 cap applied to remuneration however incurred, including in defending a claim pursuant to a request under cl 5(b). It will be seen that her Honour returned to the matter of cl 5(b) at the very end of her reasons.
Her Honour next considered whether ‘Gippsreal has waived its right to rely on the cap when it encouraged the Receivers to defend the first and second proceedings’.[7] Her Honour said that:
This formed the basis of submissions and, therefore underpinned the order sought for a declaration that the Receivers are entitled to a lien over the Cowes property to secure the fees and the costs.[8]
It is to be noted that her Honour’s reference to defending the first and second proceedings accords with the allegations in paragraphs 9 and 10 of the statement of claim.
[7]Ibid [110].
[8]Ibid.
Her Honour concluded that Gippsreal had ‘by its conduct, waived its entitlement to rely on the cap in relation to the Receivers’ remuneration up to the end of the first proceeding.’[9]
[9]Ibid [123].
As to this conclusion, it is pertinent to interpolate that, strictly speaking, the first proceeding did not end until its disposition by the orders of Croft J on 7 August 2012, subsequent to the receivers’ retirement.
The question is, how did her Honour arrive at this conclusion? The reasoning process was along the following lines.
In earlier passages,[10] her Honour referred to the proposition that a party may be taken to have waived a contractual right which exists for its sole benefit, if it chooses not to rely on it,[11] and observed that the term ‘waiver’ is used in different senses including election and estoppel.[12] She opined that ‘the waiver on which the Receivers seek to rely in this case is more akin to an estoppel.’[13]
[10]Ibid [72]–[76].
[11]Ibid [72].
[12]Ibid [73].
[13]Ibid [74].
Her Honour identified three elements as critical in assessing Gippsreal’s conduct.
First, Gippsreal requested the receivers to defend the first proceeding. However, there was no direct evidence as to whether Gippsreal also requested the receivers to participate in the second proceeding. Further, it was ‘a compelling conclusion that Gippsreal benefited from the Receivers’ participation in the second proceeding, and the second proceeding did result in the care, preservation and ultimate realisation of the assets for Gippsreal, notwithstanding that there may have been some collateral benefit for the Receivers.’[14]
[14]Ibid [114].
Secondly, as a result of frequent communication between the receivers and Gippsreal comprising updates of costs and expenses in the course of the receivership and the first proceeding, Gippsreal was well aware of the fees incurred throughout the process, but never asked the receivers to stop work in relation to the first proceeding. Her Honour stated that the evidence in relation to the second proceeding was less clear in terms of updates of the receivers’ fees to Gippsreal.[15] Her Honour concluded with the finding that Gippsreal’s ‘conduct encouraged and facilitated a certain state of affairs, at least in relation to the first proceeding.’[16]
[15]Ibid [115].
[16]Ibid [116].
Thirdly, Gippsreal included the full amount of the receivers’ claimed remuneration in the deed of settlement. That, of course, was far in excess of $15,000. This was ‘entirely inconsistent’ with Gippsreal’s reliance on the cap as against the receivers.[17] Further:
Gippsreal’s inclusion of the full cost manifested a clear position that it did not wish to rely on the cap, which is for Gippsreal’s sole benefit, against the Receivers at the time. In my opinion therefore, there is no other conclusion than it is unconscionable for Gippsreal to then seek to rely on the cap at a later point.[18]
[17]Ibid [120].
[18]Ibid [121].
It remains to note that her Honour continued by commenting upon the failure of Gippsreal to call an employee who had had the general conduct of the matter with the receivers, and concluded that the failure to call him gave rise to a strong negative inference under the rule in Jones v Dunkel that, if called, his evidence would not have assisted Gippsreal.
Her Honour then considered, and rejected, defences of Gippsreal that the receivers were precluded from recovering remuneration until they had exhausted other avenues of recovery. Gippsreal does not seek leave to appeal in respect of this matter.
Her Honour then turned to the question whether and to what extent the amount the receivers’ claim was protected by an equitable lien over the Cowes land or, more particularly, the fund produced on the sale of that land. The resolution of that question required an analysis of the receivers’ claimed remuneration to identify that which may have been incurred in caring for, preserving and realising the Cowes land. The various items of work were referred to on a spreadsheet. Her Honour considered that some items fell outside an equitable lien, by reason of the nature of the subject work, whereas there were clearly some items which should be subject to a lien over the proceeds of the Cowes’ land; she exampled: ascertaining the value of the Cowes’ land, communication in relation to the sale of the land, and any work carried out in the care, preservation or realisation of the land.[19] Her Honour concluded, however, that the extent to which a lien existed in relation to the receivers’ remuneration required further consideration.[20]
[19]Ibid [155].
[20]Ibid [165(b)].
Her Honour then returned to what she described as Gippsreal’s ‘separate obligation to remunerate the Receivers in relation to the litigation under cl 5(b) of the Indemnity’.[21] Her Honour referred to the first and second proceedings. If the receivers had not defended the first proceeding, Gippsreal may not have obtained any funds at all; hence, Gippsreal enjoyed the benefit of a fund created by the receivers’ efforts. Her Honour then referred to the second proceeding where, again, her Honour said, Gippsreal benefited from the receivers’ efforts in defending the proceeding, which ensured that Gippsreal retained its interest in the assets of Action Cycles including the Cowes property. However, her Honour observed, the evidence presented required further and more detailed analysis as many narrations on the spreadsheet were ambiguous. Her Honour then said:
There is little doubt that certain costs associated with the proceedings would properly be the subject of an equitable lien, whether or not the Receivers formally retired prior to incurring the relevant fees. In my view, the Receivers’ fees (their remuneration) that go to the substance of the litigation should be subject to an equitable lien. Items such as ‘Discussion with Pat Dunell regarding the settlement terms’ and ‘Meeting outside of office with LL & Tristan : update on litigation’ fall under this category.
Equally however, some may not. Remuneration incurred in seeking legal advice on the Receivers’ private exposure, rather than the position of the receivership, should not be subject to an equitable lien.
So it falls upon the court, in the appropriate way, to properly and meticulously analyse the individual entries and determine whether they reflect endeavours to care, preserve or realise the fund.[22]
[21]Ibid [158].
[22]Ibid [162]–[164].
Her Honour’s treatment of the cl 5(b) indemnity seems to confuse the true nature of the indemnity, being to entitle the receivers to remuneration in connection with the defence — at the request of Gippsreal — of the legal proceeding, with the recovery of items under or by way of an equitable lien. The two rights are entirely different. Her Honour does not seem to distinguish between that which is recoverable as remuneration under the cl 5(b) indemnity, and that which might be recoverable under the equitable lien.
This brought her Honour to the overall conclusion that the receivers were entitled to remuneration in the amount (at least) claimed in the deed of settlement, and that the extent to which a lien existed in relation to that remuneration required further consideration.[23] What her Honour had in mind must have been that if and to the extent that there were items in addition to what was included in the deed of settlement, then they may be, or were, recoverable under an equitable lien. As to the identification of any such item, her Honour determined that the appropriate course was for that issue to be the subject of an enquiry before an associate judge.
[23]Ibid [165].
Orders
Having heard counsel, her Honour made the orders referred to earlier. We were informed that counsel provided the judge with the amount of the judgment sum of $107,544.37, calculated as follows:
Total amount claimed by Gippsreal in cl 1.3 of the deed of settlement
$2,336,782.74
Amount of receivers’ remuneration and legal fees included in above amount in deed of settlement
$ 209,844.37
Subtract from above figure of $209,844.37 the receivers’ legal fees (incl GST) = $78,000.00 + GST of $7,800.00 = $85,800.00. (These legal fees were paid by Gippsreal in May 2016)
($ 85,800.00)
Receivers’ remuneration included in above amount in deed of settlement $209,844.37 - $85,800.00 =
$ 124,044.37
Subtract $16,500.00 paid by Gippsreal to the receivers on or about 4 July 2016
($ 16,500.00)
$ 107,544.37
Analysis
It is seen that the principal area of dispute at the trial concerned the interpretation of cl 4 of the deed of appointment and cl 3(a) of the deed of indemnity, their relationship and with the cl 5(b) indemnity. This issue was raised on the pleadings. It is also raised by the first point in the respondents’ notice of contention.
It is convenient to approach analysis of the issues raised by the appeal by first considering the questions concerning the operation and inter-relationship between the cap and the indemnity. This will extend to the contention in the statement of claim that Gippsreal requested the receivers to defend the first and second proceedings. It will then be convenient to consider Gippsreal’s proposed grounds of appeal.
Cap and the indemnity
The cap is provided for in cl 4 of the deed of appointment and cl 3(a) of the deed of indemnity. While expressed in somewhat different terms, each identifies $15,000 plus GST as the ceiling for ‘payment of all remuneration’, and refers to the receivers being entitled to payment from ‘moneys available to them’, subject to the consent (cl 4) or approval (cl 3(a)) of Gippsreal.
In her reasons, the judge concluded that the cap limited Gippsreal’s liability in respect of remuneration to $15,000 ‘provided moneys are available in the Receivers’ hands’. This reflected the terms of cl 4 and cl 3(a). Did this mean that the limitation of amount did not apply if no moneys were ever available to the receivers? The receivers had so contended, and the second ground in their notice of contention seeks to press the point. This submission cannot be accepted.
As the discussion below shows, the requirement that moneys be available to the receivers had an evident commercial explanation. It was the premise for the entitlement for the receivers to apply such moneys in their favour, and it was foreseeable, as the events in this case show, that they might not ever be in that position of having moneys in their hands. But that could not have the consequence that the $15,000 cap fell away so that remuneration was at large; that would deny effect to the cap of $15,000. The scheme in the deeds was that remuneration be paid out of the secured property; that must be whether in the hands of the receivers or Gippsreal. Gippsreal’s counsel submitted that cls 4 and cl 3(a) should be read so as to give them a commercial operation.[24] That would be to allow remuneration up to the cap whether or not the receivers ever had ‘moneys available to them’. That regards the situation as it now is. That is, the Cowes land having been sold, Gippsreal has the proceeds in hand and accepts that they are amenable to the claim for remuneration, but limited to $15,000.
[24]See PCL Holdings Pty Ltd v Kassen [2015] NSWSC 1823 [9], [21], [23].
The indemnity in cl 5(b) did not provide a general right to remuneration for work performed in the course of the receivership. Rather, it related to work performed pursuant to a request of Gippsreal in the defence of a claim of the nature identified in cl 5(a); the defence of any such claim was ‘at the expense of’ Gippsreal. The evident purpose of cl 5(a) was to ensure that Gippsreal had notice of a claim that could affect the receivership and the indemnity under the deed. With such notice Gippsreal could consider whether the claim should be defended by the receivers, in protection of its interest. This provided a measure of control for Gippsreal’s benefit. If Gippsreal requested the receivers to defend the claim, the receivers were thereby obliged to do so; they had no discretion whether or not to do so. A decision by Gippsreal that a claim should be defended by its appointed receivers, and a consequent request that they do so, meant that litigation, which can be expensive, was to be engaged in.
It is understandable that in the situation where Gippsreal requested the receivers to defend a claim, the defence of the claim be ‘at the expense of’ Gippsreal. As to this, a further measure of control was imposed by the requirement that the receivers ‘employ solicitors nominated by [Gippsreal] and co-operate fully with [Gippsreal] and the nominated solicitors in the conduct of such defence’. Further, any payments pursuant to the indemnity were to come out of the secured property.
With this understanding, the question is, what is the meaning of the phrase ‘at the expense’ in cl 5(b)? On the interpretation contended for by Gippsreal’s counsel, and accepted by the judge, ‘expense’ was confined to ‘costs and expenses’ in the sense of outgoings payable by the receivers, and thus excluded ‘remuneration’. This interpretation was thought to produce a symmetry with the expressions used in the deeds of appointment (cl 4) and indemnity (cl 3(a)). But, with respect, the word ‘expense’ in the phrase ‘costs and expenses’ is not the same as the word ‘expense’ in the phrase ‘at the expense’ because, while the former phrase identifies particular types of liabilities, the latter phrase identifies who is to be liable for the defence of the claim.
The word ‘expense’ is to be understood in the context in which it is used in cl 5(b). So read, and without disregarding the overall context, the provision is saying to the receivers that if they are required to defend a claim, that will be at Gippsreal’s expense. Her Honour initially construed the word ‘expense’ as comprehending both remuneration and costs and expenses, but nevertheless went on to find the contrary, and that the $15,000 cap applied to a claim for remuneration howsoever incurred, including that which arose in connection with the defence of a claim.
The evident purpose of cl 5(b) was to protect Gippsreal’s commercial position in the circumstances. Then, for Gippsreal to be able to require the receivers to undertake the defence of a claim (which they might otherwise not have done), surely had to come at a price. Why that price would not include remuneration, or, to put it as Gippsreal argued, that any related remuneration was limited the $15,000 cap, is not readily apparent.
It is, of course, necessary to attend to the words of the provisions in question and to read them in context in the deeds of appointment and indemnity as a whole.
Clause 4 of the deed of appointment and cl 3(a) of the deed of indemnity are to the same effect, although with some difference in expression. In each provision, the entitlement to remuneration is conditioned on moneys being available to the receivers. If that be so, and if Gippsreal consents or approves, the receivers can apply such moneys in payment of remuneration up to an amount of $15,000 plus GST. This is a very confined provision. What it does is to place a dollar limit on the amount which the receivers can apply from moneys available to them. Thus understood, it is a control mechanism on the application of funds (being secured property) standing in the hands of the receivers.
The evidence did not explain why the parties settled on the clauses as they stand in the deeds. However, as to the amount of $15,000, that was a figure which could, of course, have been varied by agreement; that would be a matter for Gippsreal. As to the matter of consent or approval, and that payments were conditioned on there being a fund, these represented controls in the interest of Gippsreal.
Thus understanding the purpose and operation of the provisions, they are not inconsistent or in disconformity with cl 5(b) allowing for recovery of remuneration. The respective provisions deal with different matters.
Further, recovery of remuneration under cl 5(b) is, like cl 4 and cl 3(a), limited to the assets of Action Cycles; there is thus a symmetry in operation.
The judge was wrong to have read the cl 5(b) indemnity as excluding remuneration and as subject to the $15,000 cap on remuneration. The indemnity was not subject to that financial limit. The critical requirement was that the work which gave rise to the claimed remuneration was performed in the defence of a claim which Gippsreal had requested the receivers to defend. For these reasons, ground 1 in the notice of contention is correct.
The question, however, is whether Gippsreal required the receivers to defend the first and second proceedings. That is the allegation in paragraph 10 of the statement of claim, but was it made out?
The judge found, and it is accepted, that Gippsreal did request the receivers to defend the first proceeding. Hence, the receivers can rely on the cl 5(b) indemnity in relation to the first proceeding down to the point of their retirement.
The position with the second proceeding is different, for several reasons. First, the second proceeding was commenced on or about 8 May 2012, over two months following the receivers’ retirement from their office as receivers. Secondly, and assuming for present purposes that cls 5(a) and 5(b) could then be invoked, did Gippsreal request the ‘receivers’ to defend the second proceeding? Thirdly, the judge found that there was no direct evidence that Gippsreal requested the receivers to defend the second proceeding. As to this, counsel for the receivers acknowledged that there was no evidence of a written or oral request to defend the second proceeding. How then was the case put?
It is necessary to return to the statement of claim to see how the case was pleaded in relation to the second proceeding. As mentioned, paragraph 10 alleged that, at the request of Gippsreal, the receivers defended the ‘Proceedings’, which expression by definition in paragraph 9 included the second proceeding; by particulars the ‘request’ was stated to be implied from the close consultation and cooperation in the defence of each proceeding. Counsel developed this contention in his submissions by referring to the evidence which, he submitted, showed that Gippsreal knew and acquiesced in the actions of the receivers in relation to the second proceeding, thus warranting, in the circumstances, the implication that Gippsreal wanted the receivers to defend the second proceeding.
Then, in paragraph 17 of the statement of claim, it is alleged that:
By reason of the Appointment and the Indemnity Term, Gippsreal is liable to indemnify the Receivers for the Fees.
The ‘Indemnity Term’ was defined in paragraph 7(b) to be cl 1 of the deed of indemnity. However, by virtue of cl 2(c), cl 1 concerns liabilities of the receivers as distinct from the receivers’ entitlement to be paid their remuneration.
At the end of this consideration, the receivers’ case is left with the insuperable problem that they were not in office as receivers at any time from commencement to conclusion of the second proceeding. For that reason, the factual basis for the operation of cl 1 and cl 5(b) did not exist; quite simply, they were no longer receivers and, that being so, the provision could not apply. The basis of the alleged ‘request’ — whether implied or however — did not matter as the receivership had ended. Hence, the pleaded case must have failed.
Further, the evidence did not establish a ‘request’ to defend the second proceeding. Of course, Gippsreal and the receivers (as it is convenient to call them) could have made an agreement to the effect of cl 5(b) to cover the situation, but that was not pleaded and it was not the case conducted.
This analysis is consistent with the statement of claim in the second proceeding which clearly identified that the receivers were sued as the former receivers of Action Cycles. Insofar as the ‘receivers’ participated in the proceeding, they did so in the capacity of former receivers, and not as receivers in fact. The indemnity in the deed of indemnity could not apply. Rather, relief from any costs and expenses of and relating to the second proceeding would need to come in the form of an advantageous order for costs, in the usual way in a civil proceeding. That, of course, could be subject to a special agreement with Gippsreal or any of the parties as to the costs and expenses of the litigation. In addition, there is the matter of the equitable lien.
Waiver
In his final address at trial, the receivers’ counsel submitted that Gippsreal waived reliance on the $15,000 cap when it encouraged the receivers to defend the first and second proceedings; see at [40] above.
The answer to this contention of waiver is provided in the above analysis. As the receivers have the benefit of the cl 5(b) indemnity in respect of the first proceeding, there is no need for the waiver sought and found by the judge, at least in respect of that proceeding. And no waiver can arise in respect of the second proceeding as the receivership had already terminated. For these reasons, it is unnecessary to consider the matter of waiver. The plea of waiver was, of course, always an alternative to the claim under the contractual provisions.
There is a further reason why waiver need not be considered, and that is because it was not an issue on the pleadings. The case was pleaded as a claim for remuneration arising from the defence of the first and second proceedings at the request of Gippsreal, a claim that was said to be based on the cl 5(b) indemnity, or on cl 1 of the deed of indemnity.
The statement of claim did not plead a case of waiver. Nor did the reply. However, and as mentioned, on the first day of the trial, counsel sought leave to amend the reply to allege, based on the pleas in the statement of claim, that Gippsreal:
(1)acquiesced in, and impliedly approved or consented to, the receivers’ fees exceeding the $16,500 cap;
(2)alternatively, waived reliance on the cap;
(3)alternatively, varied the cap to the receivers’ fees and disbursements actually incurred.
As mentioned, the judge refused leave to amend.
Notwithstanding the refusal of leave, in his final submissions the receivers’ counsel advanced the argument of waiver, which the judge acceded to, and against which Gippsreal seeks leave to appeal. It is thus convenient now to turn to Gippsreal’s grounds of appeal.
Ground 1
This ground states in substance that, as waiver of the cap was not part of the receivers’ pleaded case, it was not open to the judge to make the finding of waiver up to the end of the first proceeding. With respect, this must be correct. Indeed, it is a consequence of the requirement that a party to litigation receive procedural fairness in the conduct and determination of a case.[25]
[25]Banque Commerciale S.A., En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279, 286–7.
In the course of argument on the application to amend, there was a suggestion that the matters that would support the amendments were in substance contained in the statement of claim. In opposing the application, Gippsreal’s counsel contested that suggestion and stated that the case would, or should, be run on the pleadings. The application was refused, and the trial proceeded. During the trial, Gippsreal’s counsel maintained the position that the case be run on the pleadings. Then, the course of events following the conclusion of evidence was as follows:
(1)Counsel simultaneously provided final written submissions. As to those submissions:
(a)the receivers’ submissions relied on waiver of the cap;
(b)Gippsreal’s submissions maintained that the receivers could not run arguments of variation or waiver of the cap;
(2)The judge did not call for oral submissions.
It was in this context that the judge decided the issue of waiver of the cap. She did not explain how it was open to do so. Waiver was not an issue on the pleadings, leave to amend to allege waiver had been refused and, if waiver was to be considered, Gippsreal’s counsel had not been afforded an opportunity to deal with the matter as he may have been instructed. The consequence was that in dealing with waiver, Gippsreal was denied procedural fairness. Ground 1 is made out.
Ground 2
This ground assumes that it was open to the judge to deal with the issue of waiver, but contends that her Honour erred in law in finding waiver on the evidence.
This ground need not be considered. The premise on which it is based does not exist. Further, as the cl 5(b) indemnity applies in relation to the first proceeding, there is no need for the alternative remedy of waiver in respect of that proceeding. Further, waiver could not arise in relation to the second proceeding. If, nonetheless, an answer were to be ventured, it would be in the context of an examination of evidence led where the subject issue was not part of the case that Gippsreal came to court to meet. That is hardly satisfactory. Yet it may explain why cogent evidence of reliance by the receivers on the conduct of Gippsreal would be considered lacking. As was evidence of discussions in relation to the inclusion of the cap in the deeds.
Ground 3
This contends that the judge erred in finding that a strong negative inference should be drawn under the rule in Jones v Dunkel from Gippsreal’s failure to call its employee who had the general conduct of the matter. The judge made this finding at the end of her consideration of the issue of waiver.
As to the inference arising, the judge stated that the employee was
in a position to give evidence as to the course of dealings between the Receivers and Gippsreal and whether the cap was intended to be relied upon by Gippsreal.[26]
[26]Reasons [128].
Seen in context in the judgment, this inference went to the question of establishment of waiver of the cap. As that was not an issue on the pleadings, the failure to call the employee may have been regarded as explicable. More importantly, however, as the inference was only in aid of the finding of waiver, it does not take the matter further.
Ground 4
This ground contends that the judge misstated the principle to be applied in determining that costs are recoverable under an equitable lien. The error is said to be that the judge should have said that the lien would attract costs incurred in the care, preservation and/or realisation of assets if the costs were incurred exclusively for that purpose, as to which counsel referred to Primary Securities Ltd v Willmott Forests Ltd.[27] The criticism is that the judge omitted the reference to exclusively for that purpose. Nevertheless, that was referred to elsewhere in her Honour’s reasons.
[27][2016] VSCA 309 [14].
Counsel referred to passages in the reasons where her Honour was correct,[28] but referred to a finding in another passage quoted at [59] above which was submitted to be wrong as it did not apply the exclusive purpose test.[29] Finally, it was submitted that the receivers had not established by evidence which items of the claimed remuneration were incurred for the exclusive purpose of the care, preservation and sale of the Cowes property. Accordingly, there was no basis on which the Court could conclude that an equitable lien could apply.
[28]Reasons [141], [154], [155].
[29]Reasons [162].
It would have been better if the judge had gone further and concluded on the items of remuneration, if any, that were properly the subject of an equitable lien. If the judge had done so, she may well have required more evidence, but that would have been just part of the practical management of litigation. As she did not do so or conclude on the claim, we do not have the benefit of a reasoned analysis. The information in the appeal book is not clear enough for this Court to decide the issue, so the inquiry before the associate judge must, it seems, take place. Whether the parties consider it warranted, in terms of costs and the amount of the remuneration in question, is for them.
The judge referred to a deal of authority on the matter of equitable liens and the relevant principles are not in doubt. The inquiry can take place and counsel can provide any necessary guidance at the hearing. Reading her Honour’s reasons overall, it is not shown that, in making the order for the inquiry before an associate judge, her Honour proceeded on wrong principle such as could vitiate her judgment and order in that respect. The same consideration applies to the fact that her Honour considered it appropriate to order an inquiry; it is readily apparent that in a case such as the present it might properly be considered, from the point of view of the proper management of the situation, to order such an inquiry, there being sufficient evidence to indicate that there might be matters which could be the subject of an equitable lien.
Ground 4 is not made out.
Ground 5
Here, Gippsreal contends that any lien was subject to the contract between the parties,[30] and, thus, that the contractual limit of $15,000 (plus GST) precluded the recovery of more than that amount for the receivers’ remuneration. It was submitted that her Honour erred in law in not so holding. This contention was, at least in part, premised on an acceptance of Gippsreal’s submission that the cap applied to limit the amount of remuneration recoverable under the cl 5(b) indemnity. However, as discussed above, the premise is rejected. In consequence, the receivers are entitled to remuneration under cl 4 of the deed of appointment or cl 3(a) of the deed of indemnity up to the amount of the cap, and under the cl 5(b) indemnity in respect of remuneration incurred in the defence of the first proceeding.
[30]Moodemere Pty Ltd (in liq) v Waters [1988] VR 215, 222, 229.
There does remain a question as to whether any item of work not recoverable as remuneration under those provisions may properly fall within the scope of the lien. Unfortunately, the judge’s analysis falls short of enabling this Court to discern whether there is any item of work that might be so claimable. The judge’s reasons seem to indicate that there is but we are left in the area of uncertain possibility. In the time up to and including the first proceeding, one might suppose that the recoverable remuneration might cover all items of work, including such as might be covered by the lien, but we are in the dark. Then, as to any subsequent item of work that might be covered by the principle, we are not able to give a definitive answer. We must allow that it is possible that there are items of work recoverable as remuneration that might attract the equitable lien. Counsel did not deal with this, rather leaving the matter for resolution by the inquiry. Accordingly, in the circumstances, the appropriate course is to leave the judge’s order for an inquiry standing.
Ground 6
This ground contends that the judge erred in law in failing to provide reasons for ordering that Gippsreal pay the receivers’ costs of the proceeding.
Following the delivery of judgment, the judge received written submissions on interest and costs. Counsel also advised the amount of the judgment sum. In essence, Gippsreal submitted that the proceeding had been commenced prematurely, which had led to costs being wasted on the issue as to when the receivers became entitled to payment under the deed of indemnity, which was 1 June 2016, being the time when Gippsreal received the proceeds of sale of the Cowes land. As her Honour accepted 1 June 2016 as the date when any payment of remuneration became due, it was said that she should have made an allowance in Gippsreal’s favour in arriving at the appropriate order for costs. Further, it was contended that if the receivers had waited until after 1 June 2016 to commence the proceeding, they would not have had to sue for the legal costs and disbursements as they became due and payable in June 2016. Further, it was noted that these matters seemed to be reflected in the fact that the judge allowed interest on the judgment sum only from 1 June 2016, rather than from the commencement of the proceeding.
While, in principle, the judge should have stated, however briefly, why she dealt with costs as she did, it seems readily apparent that the order follows the event. Gippsreal received its costs of the amendment application and the receivers, who had succeeded overall, received their costs of the proceeding. It was well open to the judge to deal with the costs in that way. As the trial judge, her Honour had the advantage of being able to assess the circumstances affecting the discretion, and appreciate the overall context. It cannot be said that the manner in which she exercised her discretion is not clear or that it was not open to her to exercise the discretion in that manner.
Ground 6 is not made out.
Notice of Contention
Each ground has been dealt with in the course of these reasons. Ground 1 has been made out. Ground 2 has not been made out.
Ground 3 contended that the judge should have granted leave to amend the reply. Counsel did not press this ground. In any event, it lay in the judge’s discretion whether to grant the amendment. Of course, leave could have been granted on terms as to costs and adjournment as appropriate in the circumstances. But the judge took the other course and it cannot be said that it was not open to her to exercise her discretion in that way. The case had been fixed for trial and the parties were present and otherwise ready to proceed. And it was in the overall interest of the parties and the administration of justice that the case proceed. That having occurred, and the trial having been had, it is, in the circumstances, too late to set the clock back and re-try the case on the proposed amendment. Moreover, in light of these reasons, there is no need for waiver, as it went, in the alternative, to remuneration in respect of the first proceeding and the receivers are entitled to remuneration under cl 5(b) of the deed of indemnity.
Conclusion
The appeal will be allowed and paragraphs 1 and 2 of the orders made on 16 February 2017 will be varied by the substitution of a recalculated figure. Subject to the parties’ submissions, paragraphs 3, 4 and 5 of the orders will be confirmed. Counsel should confer and submit minutes of orders. Subject to that, since the hearing counsel have advised the Court that if — as is the case — it be found that cl 5(b) of the deed of indemnity creates a right for the receivers to seek remuneration which is independent of that in cl 4 or cl 3(a), but that right is not engaged in respect of remuneration for the second proceeding, then the receivers are entitled to judgment for at least $54,016.82 calculated as follows:
Item
Amount
Amount for ‘litigation’ for the period 21 July 2011 to 2 September 2011
$14,606.50
Amount for ‘litigation’ for the period 3 September 2011 to 28 February 2012
$34,499.70
Subtotal
$49,106.20
GST
$4,910.62
Total
$54,016.82
This amount is in addition to the amount for remuneration under cl 4 or cl 3(a) of $16,500 (inclusive of GST).
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