GIS Electrical Pty Ltd v Melsom
[2002] WASCA 302
•12 NOVEMBER 2002
GIS ELECTRICAL PTY LTD -v- MELSOM & ORS [2002] WASCA 302
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 302 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:178/2001 | 17 JUNE 2002 | |
| Coram: | STEYTLER J TEMPLEMAN J MILLER J | 12/11/02 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | GIS ELECTRICAL PTY LTD PETER MICHAEL MELSOM STANLEY FREDERIC ROBSON GEORGE AUBREY LOPEZ |
Catchwords: | Corporations Administrators and liquidators' remuneration Application for inquiry and review Failure by administrators and liquidators to give adequate notice of remuneration sought or provide detailed statements of account Deregistered company Reinstatement Operation of s 504 Corporations Law Delay Corporations Administrators and liquidators' remuneration Application for inquiry and review Operation of s 6014H(2)(a) Corporations Law Person aggrieved Where appellant has no proprietary or pecuniary interest in outcome of inquiry and review and has not suffered any legal grievance |
Legislation: | Corporations Law, s 439A, s 447E, s 449E, s 504, s 536, s 601AH, s 1321 |
Case References: | Attorney-General of Gambia v N'Jie [1961] AC 617 Australian Competition and Consumer Commission v Australian Securities and Investments Commission (2000) 174 ALR 688 Burns Philp Investment Pty Ltd v Dickens [No 2] (1993) 31 NSWLR 280 Denis v McMahon (1989) 7 ACLC 283 Ealing Corporation v Jones [1959] 1 QB 384 Ex parte Sidebotham; Re Sidebotham (1880) 14 Ch D 458 In re Lindsay Bowman Ltd [1969] 1 WLR 1443 National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VR 592 Northbourne Developments Pty Ltd v Reiby Chambers Pty Ltd (1989) 19 NSWLR 434 Re G A and R J Elliot Pty Ltd; Ex parte Mitcham (1978) 3 ACLR 523 Re Glenvale Potteries Pty Ltd (in liq) (1976) 2 ACLR 261 Re K P Wee Investments Pty Ltd (1993) 32 NSWLR 745 Re Proserpine Pty Ltd [1980] 1 NSWLR 745 Re Solfire Pty Ltd (in liq) (No 2) [1999] 2 Qd R 182 Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96 Devereaux Holdings Pty Ltd v Parry Corporation Ltd (1985) 9 ACLR 837 Devereaux Holdings Pty Ltd v Pelsart Resource NL (No 2) (1985) 9 ACLR 956 Hagenvale Pty Ltd v Depala Pty Ltd (1995) 17 ACSR 139 House v The King (1936) 55 CLR 499 Leon v York-O-Matic Ltd [1966] 1 WLR 1450 Magarditch v Australian & New Zealand Banking Group Ltd (1999) 8 ACLC 424 Norbis v Norbis (1986) 161 CLR 513 Re A C Chalmers Pty Ltd, unreported; SCt of NSW (Needham J); No 420 of 1971; 13 July 1977 Re Burnells Pty Ltd (in liq) [1979] Qd R 440 Wilson v Metaxas [1989] WAR 285 Yeomans v Walker (1986) 5 NSWLR 378 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : GIS ELECTRICAL PTY LTD -v- MELSOM & ORS [2002] WASCA 302 CORAM : STEYTLER J
- TEMPLEMAN J
MILLER J
- Appellant
AND
PETER MICHAEL MELSOM
STANLEY FREDERIC ROBSON
GEORGE AUBREY LOPEZ
Respondents
Catchwords:
Corporations - Administrators and liquidators' remuneration - Application for inquiry and review - Failure by administrators and liquidators to give adequate notice of remuneration sought or provide detailed statements of account - Deregistered company - Reinstatement - Operation of s 504 Corporations Law - Delay
Corporations - Administrators and liquidators' remuneration - Application for inquiry and review - Operation of s 6014H(2)(a) Corporations Law - Person
(Page 2)
aggrieved - Where appellant has no proprietary or pecuniary interest in outcome of inquiry and review and has not suffered any legal grievance
Legislation:
Corporations Law, s 439A, s 447E, s 449E, s 504, s 536, s 601AH, s 1321
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr T H Brickhill
Respondents : Mr K L Christensen
Solicitors:
Appellant : Brickhills
Respondents : Tottle Christensen
Case(s) referred to in judgment(s):
Attorney-General of Gambia v N'Jie [1961] AC 617
Australian Competition and Consumer Commission v Australian Securities and Investments Commission (2000) 174 ALR 688
Burns Philp Investment Pty Ltd v Dickens [No 2] (1993) 31 NSWLR 280
Denis v McMahon (1989) 7 ACLC 283
Ealing Corporation v Jones [1959] 1 QB 384
Ex parte Sidebotham; Re Sidebotham (1880) 14 Ch D 458
In re Lindsay Bowman Ltd [1969] 1 WLR 1443
National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VR 592
Northbourne Developments Pty Ltd v Reiby Chambers Pty Ltd (1989) 19 NSWLR 434
Re G A and R J Elliot Pty Ltd; Ex parte Mitcham (1978) 3 ACLR 523
(Page 3)
Re Glenvale Potteries Pty Ltd (in liq) (1976) 2 ACLR 261
Re K P Wee Investments Pty Ltd (1993) 32 NSWLR 745
Re Proserpine Pty Ltd [1980] 1 NSWLR 745
Re Solfire Pty Ltd (in liq) (No 2) [1999] 2 Qd R 182
Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96
Case(s) also cited:
Devereaux Holdings Pty Ltd v Parry Corporation Ltd (1985) 9 ACLR 837
Devereaux Holdings Pty Ltd v Pelsart Resource NL (No 2) (1985) 9 ACLR 956
Hagenvale Pty Ltd v Depala Pty Ltd (1995) 17 ACSR 139
House v The King (1936) 55 CLR 499
Leon v York-O-Matic Ltd [1966] 1 WLR 1450
Magarditch v Australian & New Zealand Banking Group Ltd (1999) 8 ACLC 424
Norbis v Norbis (1986) 161 CLR 513
Re A C Chalmers Pty Ltd, unreported; SCt of NSW (Needham J); No 420 of 1971; 13 July 1977
Re Burnells Pty Ltd (in liq) [1979] Qd R 440
Wilson v Metaxas [1989] WAR 285
Yeomans v Walker (1986) 5 NSWLR 378
(Page 4)
1 STEYTLER J: This is an appeal from the decision of a Master of this Court dismissing an application brought by the appellant for orders reinstating the registration of a company, Hansley Holdings Pty Ltd ("HHPL"), and ordering an inquiry into and a review of the respondents' fees and disbursements in acting as administrators and liquidators of HHPL.
2 Prior to its liquidation and deregistration HHPL had provided labour and services to the mining industry. It had employed 160 people and operated out of six locations in Western Australia, being Como, Fremantle, Kalgoorlie, Esperance, Murrin Murrin and Leinster. The respondents were appointed administrators of HHPL on 7 January 1998. The company went into voluntary liquidation on 31 July 1998 and the respondents were appointed as its liquidators. The company was deregistered on 1 February 2000.
3 The administration and liquidation of HHPL were complex. The company had had a turnover of $24,000,000 in the year ended 30 June 1996 and an estimated turnover of $30,000,000 in the year ended 30 June 1997 (in respect of which year no accounts were prepared). At the second meeting of creditors of HHPL, held on 3 February 1998, a report as to the affairs of the company disclosed that it had assets of around $5.1 million (with about $4.2 million worth of those assets being realisable) and creditors to a value of around $4,708,000. By far the largest creditor was the Commonwealth Bank. It was a secured creditor and was owed an amount in excess of $3,000,000.
4 The appellant was HHPL's major unsecured creditor, having been owed some $530,677. Mr Brett Price, one of the appellant's directors, had held five of HHPL's six issued shares. He had also been its managing director at the time at which HHPL was placed in liquidation. He was himself a creditor of HHPL.
5 The respondents, in their capacity as administrators, charged fees totalling $549,726. For the period from 7 January 1998 to 2 February 1998 they charged an amount of $43,086, plus disbursements. Over the period from 3 February 1998 to 31 May 1998 a further amount of $296,023 was charged, plus disbursements. Over the period from 31 May 1998 to 30 July 1998 a further amount of $174,053 was charged, plus disbursements. Later, a further amount of $36,564 in fees was charged by them for the period ending on 31 July 1998.
(Page 5)
6 In their capacity as liquidators, the respondents rendered fees totalling $300,616. For the period from 1 August 1998 to 31 January 1999 they charged $217,053, plus disbursements. For the period from 1 February 1999 to 30 September 1999 they charged $83,563, plus disbursements.
7 Consequently, the respondents have charged a total of $850,342 in fees. While it is not clear what disbursements have been charged, it seems that the total amount charged by way of disbursements is not less than $212,537, including significant legal fees charged by the respondents' solicitors.
8 The minutes of the second meeting of creditors of HHPL record what there took place in respect of the respondents' fees. They provide as follows:
"Remuneration of administrators
Mr Melsom advised those present as to the basis upon which the fees and costs of the Administrators were charged and of the intense work that had been carried out by his staff to date.
A statement of those costs and description of work was then circulated among those attending the meeting indicating a fee amount in the sum of $43,086.
Mr Melsom then stated that fees and charges of that sum required approval by the meeting and tabled a schedule of rates charged by his firm compared with the recommended rates of the Insolvency Practitioners Association of Australia indicating the significant reduction in rates applied by his firm.
The following resolution was then carried without dissent:-
…
Resolved 'that the Administrators' remuneration to 2nd February, 1998 be approved for payment in the amount of $43,086 together with all out of pocket expenses'."
9 The statement of costs and description of work which was circulated at the meeting was not produced to the Master.
10 The second meeting of creditors was adjourned to 4 June 1998. One of the purposes of the adjourned meeting was to set the administrators'
(Page 6)
- remuneration, although details of that remuneration were not given in the notice of the meeting. At the meeting on 4 June 1998 the first-named respondent, Mr Peter Melsom, tabled a three page account in respect of the respondents' fees, totalling the sum of $296,023. He told those present that he and his staff were charging at a rate which amounted to 70 to 75 per cent of that set by the Insolvency Practitioners Association of Australia ("IPAA") for Western Australia and said that the administrators faced a significant personal exposure as a consequence of the statutory liability for ongoing trading commitments undertaken by the company during the period of administration. The appellant's solicitor, Mr Brickhill, was present at the meeting. He said that the detail on the account was too general and asked the respondents to provide their time sheet computer printouts in support of that account. Mr Melsom said that he would be happy to provide these. A resolution for the payment of the fees of $296,023 was then passed.
11 The memorandum of fees which was circulated at that meeting summarised the work which had been done by the administrators in 32 sentences. The Master quoted the first five as examples, as follows:
"Discussions and meetings with the company's secured creditor concerning the financial position of the abovenamed company.
Continued assessment of the financial position of the company.
Discussions and correspondence with creditors and lease companies.
Preparation of notice of second meeting of creditors and advertising same.
Preparation and attendance to [sic] second meeting of creditors held on 3 February 1998."
12 There followed a list of the names of each of the three respondents, setting out the total number of hours worked by each, the hourly rate charged by each and the total so arrived at. The memorandum also showed that other insolvency staff had worked a total of 1581.3 hours at a rate of between $80 and $155 per hour. It did not identify any of those staff or say what kind of work had been done by the persons concerned. Administration and typing, for a period of 254.2 hours, was charged for at a rate of between $60 and $75 per hour.
(Page 7)
13 The second meeting of creditors was further adjourned to 31 July 1998 and notice of that meeting was given on 21 July 1998. Once again, one of the purposes of the meeting was said to be that of setting the administrators' remuneration. Once again, no details of that remuneration were given in the notice. A two-page report was provided to creditors at the meeting. It reported, very briefly, on various activities which the administrators had undertaken.
14 At the meeting, Mr Melsom tabled an account, in a form very similar to that which had been tabled at the earlier meeting, in respect of the administrators' fees for work undertaken to 30 July 1998. He reminded those present that he and his staff were charging at 70 to 75 per cent of the IPAA rate for Western Australia and that they were taking a significant risk in conducting an ongoing trading business. The meeting resolved to approve the fees of $174,053. A resolution was then passed in respect of the liquidators' remuneration as follows:
"That the Liquidators may calculate their fees and those of their staff based upon time spent within the Liquidation of Hansley Holdings Pty Ltd at such rates as are recommended by the Insolvency Practitioners Association Australia or at such lesser rate as the Liquidators may from time to time charge, to be drawn upon a monthly basis together with the [sic] all and [sic] out of pocket expenses, with the excess (if any) of amounts drawn over amounts which may otherwise be ultimately approved by creditors, becoming an amount refundable by the Liquidators."
15 A resolution was also passed, at that meeting, that the company should be placed in liquidation and that the three administrators should be appointed as the liquidators.
16 The next meeting of creditors was held on 10 February 1999. The approval of the liquidators' remuneration was set as an agenda item, with no details of that remuneration being provided. The Master found that neither the appellant nor Mr Price received notice of this meeting, possibly because of the use of an incomplete address. Once again a memorandum of fees was tabled and approved, by resolution, at the meeting. Also tabled at that meeting was the administrators' "residual fee account" for the period to 31 July 1998, in an amount of $36,564. That account, which was not produced to the Master, was also approved.
(Page 8)
17 The final meeting of HHPL's creditors was held on 27 October 1999. Notice of that meeting, together with a three page report, was circulated to creditors. Only four creditors were present at the meeting, including Mr Price and the appellant, which was again represented by Mr Brickhill. A two page statement of professional charges was circulated in respect of the period 1 February 1999 to 30 September 1999. It was in a form similar to its predecessors.
18 At the meeting, Mr Brickhill spoke of the request which he had previously made for an itemisation of fees. He asked why the itemisation had not been provided. He also expressed concern in respect of the high cost of consultants and legal fees. He again asked for a detailed itemisation of the administrators' and liquidators' fees to date. Mr Melsom responded by saying that the matter had been addressed at the time of the earlier request (although it had not) and said that he could see no benefit in providing the details sought, particularly as all fees had been approved by creditors. However, Mr Brickhill persisted in his request and Mr Melsom agreed to provide the requested information.
19 The meeting approved the liquidators' fee account for the period 1 February 1999 to 30 September 1999 in an amount of $83,563, together with disbursements.
20 The Master, in his reasons for decision given on the appellant's application, recounted (par 41) that Mr Brickhill had had great difficulty in obtaining detailed time sheets from the respondents. He said that Mr Brickhill initially wrote a letter to them requesting these time sheets on 7 September 1998. Although he received a reply on 10 September 1998, he did not receive the time sheets. He wrote again on 3 December 1998. On this occasion a reply was received from the liquidators' solicitors informing him that, as the fees had been approved at a meeting of the creditors, they considered the request to have "lapsed". Mr Brickhill wrote again to the liquidators on 4 November 1999, after the meeting of 27 October 1999. He asked for the itemisations within seven days, but these were not supplied. He wrote again on 18 November 1999 and, on this occasion, the respondents agreed to supply him with the additional information, but required that they be paid the reasonable costs of supplying the information. Mr Brickhill objected, saying that the itemisations had been promised to creditors at the meetings held on 4 June 1998 and 27 October 1999. He threatened to apply to the Court and to report the matter to regulatory bodies. That produced a conciliatory response from the respondents' solicitors. Thereafter, discussions took place between the two firms of solicitors and the requested documents
(Page 9)
- were eventually supplied on 29 March 2000. However, HHPL had, by then, been deregistered.
21 The documents supplied included additional information in respect of the fees which had been charged and the disbursements which had been paid. They also included a printout of some 97 pages covering the period 1 December 1977 to 29 February 2000. This covered such matters as the number of hours which had been worked by particular individuals, the total cost of that work to the client and a very brief statement of what it was that had been done.
22 These documents revealed an anomaly in respect of the fees of $174,053 which had been charged in the account tabled on 31 July 1998. While payment of that amount was approved by the meeting held on that day, the time costing disclosed that only $137,825 was in fact payable. However, Mr Melsom, in an affidavit sworn by him on 3 November 2000, said that the respondents had not "drawn the difference" and that the figure of $174,053 had been only "an estimate", albeit it had never been described in that way.
The Master's findings
23 The Master made a number of findings, arising out of these facts, which are material to the appeal.
24 He found, firstly, that there was "a serious fault" in the fact that, although creditors of HHPL were given notice at each meeting that the administrators' remuneration was to be fixed, they were not given any notice of the amount of remuneration sought. However, he said, the memoranda of fees which he had seen gave "a reasonable idea of the nature of the work" done by the respondents. He also said that, while names and precise hourly rates were not supplied, this information was available to the administrators who held it on their computer.
25 The Master then went on to say that a committee of creditors, consisting of five representatives, had been appointed at the initial meeting of creditors held on 14 January 1998. He said that the minutes of the meetings of that committee showed that its members were kept well informed of the progress of the administration. The Master also noted that the Commonwealth Bank was kept informed of events in the administration by way of detailed reports.
(Page 10)
26 The Master next said (par 68) that the onus was on the appellant to establish that the remuneration claimed, and approved by the creditors, was not fair and reasonable. He went on to say (par 72) that the appellant, as an unsecured creditor, was unlikely to get anything, even if it should be successful in having the respondents' fees reviewed. He said that any money ordered to be refunded would inevitably go to the Commonwealth Bank, which was then still owed more than $2,000,000 and which had not supported the appellant's application. He consequently described the application as "academic". He said, in that respect:
"This plaintiff will not gain if the administrators' fees are reduced by the court. It would have been better if the notice sent out to creditors by the administrator had mentioned the sum of fees claimed, and if the administrator had circulated in advance his statement of account setting out the fees claimed and the work done for the fees claimed. It would have been better if his statements of account had been more detailed. It also would have been preferable if the administrator had brought along to the creditors' meetings his hourly charge sheets so that they could have been inspected by any interested creditors - particularly when the plaintiff requested to see those records. Nevertheless, when I weigh up all these factors together with the others which I have mentioned, I am not persuaded that the information supplied to creditors was so inadequate that they were unable to make a properly informed decision on the reasonableness, or otherwise of the remuneration."
27 The Master then went on to refer, again, to the information which had been supplied to the committee of creditors and to the Commonwealth Bank before saying (par 75):
"I am not persuaded that the information offered to creditors during the administration period was inadequate so that I should review it, or that the fees are so inordinately high that I should consider them unfair or unreasonable. Before making a final conclusion on that matter however, I wish to consider several other matters."
28 He then turned to an issue which had arisen regarding the reasonableness of an expense of $92,000 incurred by the respondents in installing what was referred to as a "MYOB accounts package". He concluded that, as there could not be any question of a return from the
(Page 11)
- liquidation to any creditor other than the Commonwealth Bank, and as the Commonwealth Bank had made no complaint notwithstanding that it had received the respondents' accounts and reports, it was unnecessary for him to consider making any order in respect of this cost.
29 Next, the Master turned his attention to a number of specific complaints which had been made on behalf of the appellant in relation to the respondents' fees and disbursements incurred in their capacity as administrators. Having recounted these complaints, the Master repeated that the Commonwealth Bank was "the only relevant creditor prejudiced by these allegations, if they are all proved". He said:
"Yet, with good knowledge of the administrators' actions, it has chosen not to join in or support this application. That is a complete answer."
30 Finally, the Master considered complaints made by the appellant in respect of the fees and disbursements charged by the respondents in their capacity as liquidators. He referred, in that respect, to the lengthy printout which had been supplied and mentioned that the second-named respondent, Mr Robson, and a Mr Geoff Fuller were "unable to properly use … [the] computer system, with the result that a summary of work done by Mr Robson was supplied as well as a copy of Mr Fuller's diary showing the periods when he worked on the administration and liquidation".
31 The Master then referred to the appellant's complaint that the computer printout, and the other information supplied, did not enable a creditor to ascertain whether "the appropriate level of person was used for a particular task". He mentioned, in that respect, that the expertise of particular staff members was not identified and nor was their level of experience made known. The Master also acknowledged that detail was lacking in respect of the work actually done. However, he said (par 98):
"I think it matters not. The liquidators are officers of the Court. They are normally highly experienced. I know that Mr Melsom and Mr Robson are experienced liquidators. I have seen their work on other occasions. I am not familiar with the work of Mr Lopez."
32 The Master went on to say that he did not consider that further details should be supplied as "there must be a limit to the amount of detail that can legitimately be required".
(Page 12)
33 He then considered a number of complaints made by the appellant in respect of charges for work done by named employees of the respondents, the qualifications of whom had not been made known, including, by way of example, an entry of four units (of six minutes each) charged at a rate of $66.50 per hour by Mr Richard Melsom, the son of Mr Peter Melsom, in the course of driving Mr Peter Melsom into the city on 28 January 1999. Mr Peter Melsom explained this item in an affidavit, saying that, during the course of that drive, he and Mr Richard Melsom discussed "various matters pertinent to the affairs of the company".
34 After recounting these various complaints of lack of detail provided in the computer printouts, the Master said (par 123):
"I think … that the … [appellant] has made out a sufficient case to justify an inquiry into the liquidators' fees but for one significant matter. I consider that it would not be just in the circumstances of this case to act on the … [appellant's] application and order an inquiry. I repeat here the same point that I made in connection with the administrators' fees and disbursements. An inquiry into the liquidators' fees and disbursements at the insistence of this … [appellant], would be a hypothetical and sterile exercise. That is because this … [appellant] stands to gain nothing financially from such an inquiry. At the conclusion of the liquidation, the shortfall to the secured creditor, the Commonwealth Bank, was over $2 million. So, if as the result of a Court-appointed inquiry, the Court was to refund all the liquidators' fees and disbursements, there would be no financial benefit to the … [appellant]. I say that because the liquidators' fees charged were $300,616. I have not calculated the liquidators' disbursements but they can be calculated from the papers before me and they are relatively small. The bulk of the disbursements were incurred during the administration period. I consider it is only the secured creditor, the Commonwealth Bank, which can legitimately ask for an inquiry in this case. It is not an applicant, it does not join in the application, and is, apparently, unconcerned about the level of fees charged. In these circumstances, I propose to decline to order an inquiry under s 536."
35 The Master consequently dismissed the application.
(Page 13)
Grounds of appeal
36 There are some 12 grounds of appeal. However, they come down to two propositions, as follows:
(1) The Master was in error in holding that an inquiry into, and review of, the respondents' fees and disbursements in the administration and liquidation of HHPL was a hypothetical and sterile exercise, having failed to have regard to the Court's supervisory role under s 447E and s 449E of the Corporations Law (in respect of administrators) and s 536 of the Corporations Law (in respect of liquidators).
(2) The respondents' failure, in the various notices of meetings, to give any details of the fees and disbursements sought by them, and their failure to provide sufficient details thereof at the meetings and to provide anything more than an estimate (without identifying it as such) at the meeting on 31 July 1998 were, without more, sufficient grounds for ordering an inquiry and review, more particularly when regard is had for the amount involved and the circumstance that the appellant had consistently sought, but had not been supplied with, the relevant details.
The legal issues
37 As to the administration of the company, the administrator is entitled, by virtue of s 449E(1) of the Corporations Law, as it stood at the time of the hearing before the Master, to such remuneration as is fixed by a resolution of the company's creditors passed at a meeting convened under s 439A. It is not in dispute that the administrators' fees were so fixed in this case. However, by virtue of s 449E(2), where remuneration is fixed in that way, the Court may, on the application of a creditor of the company (amongst others), review the remuneration and confirm, increase or reduce it.
38 Also, under s 447E(1) of the Corporations Law, where the Court is satisfied that the administrator of a company under administration has managed the company's affairs in a way that is prejudicial to the interests of some or all of the company's creditors or members or has done an act, or made an omission, that is prejudicial to such interests, the Court may make such order as it thinks just. By virtue of s 447E(3) an order of that kind may be made on the application, inter alia, of a creditor of the company.
(Page 14)
39 As to the liquidation of the company, s 536(1)(b) of the Corporations Law relevantly provided that, where a complaint is made to the Court by any person with respect to the conduct of a liquidator in connection with the performance of his or her duties, the Court may inquire into the matter and, where it does so inquire, take such action as it thinks fit. Also, by virtue of s 536(3), the Court is empowered at any time to require a liquidator to answer any inquiry in relation to the winding up and to examine the liquidator or any other person on oath concerning the winding up and may direct an investigation to be made of the books of the liquidator.
40 It was common cause between the parties that these provisions enabled the Master, if he considered this to be appropriate, to order an inquiry into and a review of the respondents' fees, even after the company had been deregistered. It was also common cause, after some debate between the parties, that the Court has the power, under s 447E, to order an inquiry into and review of the disbursements incurred by the administrator and, under s 536, to make similar orders in respect of disbursements incurred by a liquidator, although counsel for the respondents contended that the Court's powers under s 449E(2) of the Corporations Law did not extend to ordering a review of the disbursements incurred by an administrator because the word "remuneration" does not, on the authority of Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96 at 99E and 100C - D, include disbursements. I should add, in any event, that, by s 1321(c) and (d) respectively of the Corporations Law (now the Corporations Act), a person aggrieved (and I shall return, below, to the question whether the appellant is a "person aggrieved") by any act, omission or decision of an administrator of a company or a liquidator of a company may appeal to the Court in respect of the act, omission or decision and the Court may confirm, reverse or modify the act or decision, or remedy the omission, as the case may be, and make such orders and give such directions as it thinks fit.
41 Somewhat surprisingly, no reliance was at first placed by counsel for the respondents on s 504 of the Corporations Law which, at the material time, provided (in respect of the amount of a liquidator's remuneration) that:
"Any member or creditor, or the liquidator, may at any time before the deregistration of a company apply to the court to review the amount of the remuneration of the liquidator, and the decision of the court is final and conclusive."
(Page 15)
42 Counsel for the appellant did not refer to that section. Counsel for the respondents mentioned it only in passing. His only comment in respect of it was that, HHPL having been deregistered, s 504 had no application. However, as will be apparent, that section deals specifically with an application for the review of the amount of a liquidator's remuneration and requires that such an application be brought prior to the deregistration of the company concerned. That being so, it seemed to us to be unlikely that the legislature could have intended that, in a case in which a company has already been deregistered, a review of the amount of the liquidator's remuneration could be ordered on an application brought under some other, more general, provision. The parties were consequently invited to make further submissions on that point.
43 Counsel for the appellant relied upon the case of Re Glenvale Potteries Pty Ltd (in liq) (1976) 2 ACLR 261. In that case a company, by special resolution, resolved that it be wound up voluntarily. The final meeting of the company was held, pursuant to the then s 272 of the Companies Act 1958, on 17 December 1975. No member of the company attended that meeting. Subsequently, the liquidator filed with the Commissioner for Corporate Affairs the requisite return, with his statement of accounts attached. This disclosed that he claimed remuneration of $13,745. The company was dissolved on 19 April 1976. Thereafter, by summons filed on 21 September 1976, shareholders in the company sought to have the company's dissolution declared void so that they might challenge the liquidator's remuneration on the ground that it was both unauthorised and excessive. Kaye J, after making it clear that the application had been, in substance, ex parte (the liquidator and the Commissioner having consented to the making of the order sought), said (at 263) that he was "presently disposed to conclude that the applicants … [had] a pecuniary interest in resuscitating the company [under the then provisions of s 307(1) of the Companies Act] to prevent possible unnecessary and unfair prejudice attracting to them". He consequently declared the company's dissolution to be void.
44 At the time at which that application was made, s 267 of the Act gave the right to members of a company, amongst others, to apply to the Court to review a liquidator's remuneration, but required that right to be exercised before the company had passed into dissolution. By analogy of reasoning, counsel for the appellant contends, s 504 of the Corporations Law does not prevent the Court from exercising its power under s 601AH(2) of the Corporations Law to order the reinstatement of HHPL's registration for the purpose of facilitating a review of the amount of the liquidator's remuneration pursuant to s 504 or, perhaps, s 536.
(Page 16)
45 Counsel for the appellant also referred, in the course of his oral submissions, to the case of Burns Philp Investment Pty Ltd v Dickens [No 2] (1993) 31 NSWLR 280, in which Young J was prepared to order an inquiry, under the Court's supervisory powers provided for by s 536 of the Corporations Law, into an allegation that a liquidator had not faithfully performed his duties in specified respects, which included alleged excessive charging by the liquidator.
46 Counsel for the respondent, on the other hand, contended, in his further submissions, that, having regard for the clear terms of s 504 of the Corporations Law, there is no power to order a review of the amount of the liquidator's remuneration on an application brought by a creditor after the deregistration of the company and that it is accordingly not open to the Court to order reinstatement of HHPL's registration merely for that purpose.
47 I am inclined to doubt that it is open to a Court to order reinstatement of a company solely in order to facilitate a review of the amount of a liquidator's remuneration under s 504 of the Corporations Law. As I have said, that section expressly requires an application for review of the amount of a liquidator's remuneration to be made before the deregistration of the company. The only purpose of an application of that kind is that of requiring a liquidator who has been overpaid to make restitution of the amount of the overpayment or, if an increase in payment is sought, of obtaining that payment from the company. Because any restitution would be made to the company (albeit it might ultimately benefit its creditors or contributories), it is obvious that the company would have to be in existence in order to take the benefit of that restitution. Similarly, if an increased payment was to be made by the company, it would have to be in existence before that could be done. It seems to me to be improbable that the legislature, in providing that an application for review must be made before deregistration, was merely stating the obvious, namely, that there would be little point in making the application after deregistration and without applying, also, for the company's reinstatement. Rather, it seems to me to have been setting a time limit for the bringing of an application of that kind.
48 Whether a Court is able to rely only upon a complaint, made by a disaffected creditor under s 536(1)(b) of the Corporations Law, in relation to the amount of a liquidator's remuneration for the purpose of ordering an inquiry into, and review of, that amount after the company has been deregistered seems to me also to be doubtful. If, as I have suggested, s 504 does set a time limit for the bringing of an application for a review
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- of the amount of the remuneration of the liquidator, it is unlikely that the legislature could have contemplated that the time limit could be circumvented by resort to another, more general, provision. I should mention, in this respect, that no issue of that kind arose in Burns Philp Investment, above, where the application was brought before the company had been dissolved. Also, the application in that case encompassed matters other than merely the amount of the liquidator's remuneration. It may also be worth mentioning, in this respect, that, in Glenvale Potteries, above, the liquidator's remuneration was said not only to have been excessive but also to have been unauthorised.
49 Of course, where an applicant raises a complaint about the liquidator's conduct, rather than merely an application to have the amount of the liquidator's remuneration reviewed by the Court, a Court is able, in an appropriate case, to exercise its supervisory powers under s 536. It is important to bear in mind in this respect that, as has been pointed out by McClelland J in Northbourne Developments Pty Ltd v Reiby Chambers Pty Ltd (1989) 19 NSWLR 434 at 438 (in respect of the provisions of s 420 of the Companies (NSW) Code), the section is concerned with aspects of the conduct of liquidators which are liable to attract sanctions or control for what might broadly be described as disciplinary reasons. The Court's supervisory powers are not conditioned by the continued registration of the company, although it might, in many circumstances, be pointless to exercise them after the company has already been deregistered.
50 In this case the appellant did raise matters of complaint which went wider than merely to the amount of the liquidator's remuneration. As will be apparent, it complained of the respondents' conduct in failing to give adequate notice, and details, of the amounts to be charged by them as liquidators (resulting, it contended, in a lack of proper authority to charge those amounts) and also in failing to respond to requests for information. However, the only relief which was sought by the appellant, in its originating summons, was an order (under s 601AH(2) of the Corporations Law) requiring the Australian Securities and Investments Commission ("ASIC") to reinstate the registration of HHPL, an order revesting in HHPL any of its property vested in ASIC, an inquiry into and a review of the respondents' fees and disbursements incurred in their capacity as administrators and liquidators of HHPL, an order requiring the respondents to make restitution to HHPL of any amount which might be found, after inquiry, to have been unauthorised or excessive and an order that the amount of any restitution so ordered be available for those entitled in the winding up. It was common cause between the parties that the
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- reinstatement of HHPL was central to the relief sought by the appellant, as the proposed order for restitution to HHPL could otherwise not be performed (as to which, cf Glenvale Potteries, above, at 263), there being no suggestion that restitution could, or should, be made directly to anyone else.
51 Consequently, even if it be assumed, as the Master was prepared to assume, that the Court was, in this case, able to rely upon the provisions of s 536(1)(b) and s 536(3) for the purpose of ordering an inquiry into and review of the liquidators' remuneration and disbursements, as well as on the other provisions to which I have referred for the purpose of making a like order in respect of the remuneration charged and disbursements incurred by the respondents as administrators, it follows, from the way in which the application was brought, that the appellant was obliged to satisfy the Court that it was a "person aggrieved" by the deregistration of HHPL. That is because, by virtue of s 601AH(2)(a), an order under s 601AH(2) can only be made on the application of a former liquidator of the company or on that of a person aggrieved by the deregistration. While it was not disputed, either before the Master or before us, that the appellant falls within the latter description (and that it had the necessary standing to bring its application under the other provisions to which I have referred), I must confess to having considerable doubt as regards the appellant's status as a "person aggrieved".
52 It will be apparent from what I have earlier said that the appellant cannot benefit from any restitution which might be ordered. It is common cause (as it was before the Master) that the only ultimate beneficiary of an order for restitution of overpaid fees or disbursements would be the Commonwealth Bank. The appellant, an unsatisfied creditor of HHPL which cannot, under any circumstances, now be paid any part of what was owing to it, has consequently no proprietary or pecuniary interest in the outcome of any inquiry and review which might be ordered and, therefore, in HHPL's reinstatement. Nor does it suggest that it has been injured or damaged in a legal sense or that it has otherwise suffered any legal grievance as a consequence of that company's deregistration. This appears to me to raise a considerable problem for it.
53 In In re Lindsay Bowman Ltd [1969] 1 WLR 1443, a company had been struck off the register of companies and dissolved under s 353 of the Corporations Act1948 (UK). A contributory and the company petitioned the Court for the restoration of the company's name to the register under s 353(6) of the Companies Act, pursuant to which a company or any member or creditor thereof, if it felt aggrieved by the company having
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- been struck off the register, could apply to have the company restored to the register. There was no real prospect that either the contributory or the company would obtain any financial return from the reinstatement of the company. Megarry J, at page 1448, was unable to see what grievance the company or the contributory had. He said, in that respect (ibid):
"If there were real prospects of a surplus to be snatched from the fate of bona vacantia, it would be different; but here there is not only no hope of a surplus, but also merely the most cautious of assertions in the petition that if it is granted 'some of' the assets 'may be' available for the benefit of creditors. In my judgment there are no grounds whatever which would suffice for the exercise of the court's powers of restoration and resurrection under the subsection, and I dismiss the petition."
"The words 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests."
55 Earlier, in Ealing Corporation v Jones [1959] 1 QB 384, Donovan J said, at 392:
"I think it is true that if one came to the expression without reference to judicial decision one would say that the words 'person aggrieved by a decision' mean no more than a person who had had the decision given against him; but the courts have decided that the words mean more than that, and have held that the word 'aggrieved' is not synonymous in this context with the word 'dissatisfied'. The word 'aggrieved' connotes some legal grievance, for example, a deprivation of something, an adverse effect on the title to something, and so on."
56 Similar tests have been applied in Australia. In Re G A and R J Elliot Pty Ltd; Ex parte Mitcham (1978) 3 ACLR 523, Young CJ said, at 525:
"The expression 'person aggrieved' and similar expressions are, of course, very familiar. They have given rise to many
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- authorities: see Stroud's Judicial Dictionary 4th ed Vol 1 pp 89-94. Speaking generally a person aggrieved is I think a person who is injured or damaged in a legal sense or who has suffered a legal grievance: see Ex parte Sidebotham (1879) 14 Ch D 458; [1874-80] All ER Rep 588 in the judgment of James LJ at 465, although as the Privy Council said in A-G of the Gambia v N'Jie [1961] AC 617 at 634; [1961] 2 All ER 504 at 511, the dictum of James LJ in that case is not to be regarded as exhaustive."
57 Then, in Denis v McMahon (1989) 7 ACLC 283, Demack J said, of the words "person … aggrieved" in s 459(6) of the Companies (Qld) Code, that it seemed to him that one of the tests considered by the Full Court of Victoria in National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VR 592, at pp 604 and following, covered the present situation, being a test whether the person in question had "a real and direct interest in the decision and is dissatisfied with it". (See also Re K P Wee Investments Pty Ltd (1993) 32 NSWLR 745.)
58 In Northbourne Developments, above, McClelland J, at 437 - 438, quoted what had been said by James LJ in Ex parte Sidebotham; Re Sidebotham (1880) 14 Ch D 458 at 465 in respect of s 71 of the Bankruptcy Act 1869 (UK) as follows:
"… but the words 'person aggrieved' do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A 'person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something."
59 McClelland J went on to say (at 438):
"In other contexts, particularly where the public interest is affected, this statement may well be too restrictive: see, eg, Attorney-General of Gambia v N'Jie [1961] AC 617 at 634.
Even in the area of insolvency administration James LJ's remarks should not be treated as an exhaustive definition: see Ex parte Official Receiver; Re Reed Bowen and Co (1887) 19 QBD 174 at 178 per Lord Esher MR. Nevertheless the concept encapsulated in the phrase 'legal grievance' is I think sound in
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- principle (see, eg, Ex parte Official Receiver; Re Reed Bowen and Co; Re Burn [1932] 1 Ch 247 and Re E and L Homes Pty Ltd [1974] Qd R 102), although its application to particular facts may not be without argument. It should not be overlooked that the wider the class of persons entitled to appeal to the court in respect of an act, omission or decision of a liquidator (or provisional liquidator) the greater the scope for potential disruption of an orderly administration."
60 These last comments were made in the context of the use of the words "person aggrieved" in s 538 of the Companies (NSW) Code, which gave to a person aggrieved by any act, omission or decision, inter alia, of a liquidator, the right to appeal to the Court. Even in that context his Honour concluded that it had not been shown by the applicant that it was a "person aggrieved" because it had not shown that it had "any legal right or interest" which was affected by the liquidator's decision or that the decision "constituted a breach of any legal duty owed" by the liquidator to it. All that the applicant had lost in that case was the chance that, if the liquidator had not contracted with a third party, he might have contracted with it. That, McClelland J said (page 438), was not a "legal grievance" sufficient to give standing to the applicant under s 538.
61 More recently, in Australian Competition and Consumer Commission v Australian Securities and Investments Commission (2000) 174 ALR 688, Austin J, applying Re Proserpine Pty Ltd [1980] 1 NSWLR 745, found that the applicant in that case was a person aggrieved because its legal rights had been affected and because it had a genuine grievance that the dissolution had affected its interests ([24] - [26]).
62 Here, as I have said, the appellant has no proprietary or pecuniary interest which has been affected by the decision to deregister HHPL. It had no prospect of having its debt paid by HHPL and it has no prospect of obtaining any payment arising out of the reinstatement of HHPL. Nor, as I have also said, has it otherwise suffered any legal grievance arising out of the deregistration of HHPL.
63 However, even if it be assumed (without deciding) that it was open to the Court to reinstate HHPL on the application of the appellant (or, perhaps, in the exercise of its powers under s 536(1)) for the purpose of facilitating the payment to HHPL of any restitution which might be ordered as a result of a review of, and inquiry into, the fees and disbursements charged by the respondents, I am not persuaded that the Master should have done so, or that he should have ordered an inquiry and
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- review, even if his reasoning is, in some respects, open to criticism (as seems to me, with due respect, to be the case).
64 The company was deregistered on 1 February 2000, as I have earlier mentioned. While the appellant contends that this was done without any prior notice to it, and at a time when its requests for additional information were still outstanding, it must always have appreciated the prospect that, if it continued to do nothing, by way of Court proceedings, to challenge what had been done (or left undone) by the respondents, this would be the result. As will be apparent from what I have already said, the fees which are challenged were charged, so far as the administration was concerned, over a period ending on 30 July 1998, more than four years ago, and, so far as the liquidation was concerned, over a period ending on 30 September 1999, more than three years ago. While it is true that the appellant last requested the additional information sought by it on 18 November 1999, and was then told that this information would be supplied, the fact is that the appellant failed to do anything to protect its position so far as the deregistration of the company was concerned. Moreover, while the appellant cannot be criticised for delays which have occurred since the filing of its application to the Master, that application was only filed on 5 September 2000, more than two years after the administration had ended, almost a year after the last period in respect of which the liquidators had charged any fees and more than seven months after HHPL had been deregistered.
65 I accept that, on the face of it, a number of questions do arise in respect of the fees charged by the respondents and a number of criticisms can be made of their conduct in that respect. The Master found (rightly, in my respectful opinion) that the respondents were at fault in failing to give any adequate notice of the amount of remuneration sought by them (as to which see Re Solfire Pty Ltd (in liq) (No 2) [1999] 2 Qd R 182 at 197) and that it would have been preferable if their statements of account had been more detailed (see, again, Re Solfire (No 2), ibid) and if they had brought to the creditors' meetings their hourly charge sheets for inspection by those who were interested to see them. He mentioned other inadequacies in the information supplied by them. There are also some aspects of the respondents' charges which, taken at face value, cause me some discomfort, not the least of these being the very high "administrative" and typing fees charged and an apparent willingness to charge for such things as Mr Richard Melsom driving his father to work, merely because the two men discussed "various matters pertinent to the affairs of the company". Moreover, it seems to me that the respondents are to be criticised for their failure to disclose to those present at the
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creditors' meeting held on 30 July 1998 the fact that the amount there approved was only an estimate. It also seems to me that the respondents deserve little credit for their conduct in refusing or failing, for a considerable period of time, to provide the information which had been sought from them by the appellant and in avoiding or deflecting the requests for information which were repeatedly made to them.
66 These are weighty matters in the exercise of a discretion. However, they must be considered together with all of the other circumstances of the case. These include, of course, the appellant's delay in bringing its application and the fact that it has no proprietary or pecuniary interest in the outcome of the application. They also include the fact that the only creditor which might benefit from a review of the fees charged has not joined in the application or made any complaint as regards the amounts charged by the respondents and the fact that, while the respondents gave inadequate notice of the fees to be charged by them and, in my opinion, inadequate details of those fees, they did, at least, keep the committee of creditors and the Commonwealth Bank fully informed of what they were doing, so as to enable them to make some estimate of the reasonableness of their charges. Also, as I have earlier mentioned, the Master was not persuaded that, given the complexity of the administration and liquidation, the respondents' fees were so "inordinately high" that he should consider them unfair or unreasonable on that ground alone. While the respondents' fees were undoubtedly high, we have not been shown enough, in my opinion, to lead to the conclusion that the Master was wrong in forming that opinion.
67 It seems to me, in all of the circumstances, that this is not a case in which an inquiry into and review of the respondents' fees and disbursements should now be ordered or in which it would now be "just" to reinstate HHPL's registration (as to which see s 601AH(2)(b) of the Corporations Law and Australian Competition and Consumer Commission v Australian Securities and Investments Commission, above, at [27] and [28]), if it was otherwise open to the Court to grant the appellant relief of that kind. I am consequently not prepared to overturn the Master's decision. I would therefore dismiss the appeal.
68 TEMPLEMAN J: I have had the advantage of reading in draft the reasons for decision of Steytler J with which I agree.
69 The appellant's counsel, in his further submissions dated 18 September 2002, is critical of the respondents because they "allowed"
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HHPL to be deregistered when they had failed to provide the promised itemisation of their costs and when they were fiduciaries.
70 The respondents, in their capacity as liquidators, presented a final report to creditors of HHPL on 26 October 1999. The report concluded:
" … the liquidation is at an end and the liquidators will retire as soon as practicable."
71 By s 601 AL(2) of the Corporations Law, ASIC was required to deregister HHPL three months after its liquidators lodged their return under s 509. I assume the return was lodged shortly after the final report was delivered, because HHPL was deregistered on 1 February 2000.
72 Given the statutory regime, I do not accept that the deregistration of HHPL warrants any criticism of the respondents. Rather, I think, it was for the appellant to act promptly in bring its application for a review of the respondents' remuneration. However, the application was not made until 5 September 2000.
73 In my view, this is a factor which would militate against the exercise of any discretion to reinstate HHPL's registration – if that jurisdiction exists, having regard to s 504 of the Corporations Law. However, for the reasons given by Steytler J, I doubt that the Court does now have jurisdiction.
74 The other compelling factors against the exercise of any discretion in favour of the appellant are that the outcome of a review of the respondents' remuneration would be academic: and that HHPL's principal creditor, the Commonwealth Bank, does not support the application.
75 In these circumstances, while I accept that serious questions about the propriety of some of the respondents' charges remain answered, I do not think the Court should now become involved. I would therefore dismiss the appeal.
76 MILLER J: I have had the opportunity of reading in draft the reasons for judgment of Steytler J. For those reasons I would dismiss the appeal and there is nothing further I wish to add.
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