HN QCV Bottle Tree Pty Limited v QCV Bottle Tree Village Pty Limited

Case •

[2017] NSWSC 1035

•

04 August 2017

No judgment structure available for this case.

Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: HN QCV Bottle Tree Pty Limited v QCV Bottle Tree Village Pty Limited [2017] NSWSC 1035
Hearing dates:4 August 2017
Date of orders: 04 August 2017
Decision date: 04 August 2017
Jurisdiction:Equity
Before: Kunc J
Decision:

Remuneration approved

Catchwords: EQUITY — Equitable remedies — Receivers — Court supervision of — Remuneration
Legislation Cited: Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liquidation) v Sakr [2017] NSWCA 38; (2017) 118 ACSR 333
Category:Procedural and other rulings
Parties:

HN QCV Bottle Tree Pty Limited ACN 601 477 785 (Plaintiff)

  QCV Bottle Tree Village Pty Limited ACN 602 294 048 as agent for the QCV Bottle Tree Village Partnership (Receiver and Manager Appointed) (First Defendant)
Qantac LOR Pty Limited ACN 162 991 415 (Second Defendant)
MM2 Group Pty Limited ACN 166 082 006 (Third Defendant)
Representation:

Counsel:
V Whittaker and B Ng (Applicant/Receiver and Manager)

  Solicitors:
Hogan Lovells (Applicant/Receiver and Manager)
File Number(s):2016/165777
Publication restriction:No

EX TEMPORE Judgment (REVISED)

  1. HIS HONOUR: By amended notice of motion filed in Court today, Adam Shepard (the "Applicant"), in his capacity as receiver and manager of the business and assets of the QCV Bottle Tree Village Partnership (Receiver and Manager Appointed) (the “Partnership”) seeks the following orders:

“1.   Adam Shepherd in his capacity as receiver and manager (“Receiver’) of the business and assets of the QCV Bottle Tree Village Partnership (Receiver and Manager Appointed) (“Partnership”) is justified in taking all reasonable steps to realise or recover from the partners of the Partnership (being the plaintiff, the second defendant and the third defendant) (“Partners”) all amounts due by them under the partnership and agency deed of the Partnership to meet all liabilities of the Partnership in full, including commencing proceedings.

2.   The Receiver’s remuneration to 15 March28 July 2017 in the sum of $57,597.5068,748.00 (excluding GST) be approved.”

  1. The Applicant was represented before me by Ms V Whittaker of Counsel who appeared with Ms B Ng of Counsel.

  2. The Court is satisfied that the Applicant is entitled to the orders he seeks, with some minor variations in relation to proposed Order 1.

Background

  1. Mr Shepard was appointed as the receiver and manager of the business and assets of the Partnership by order of this Court on 8 June 2016. Order 10 of those orders provided:

“10.   Orders that the Receiver is entitled to reasonable remuneration for the work performed as receiver calculated at the rates disclosed in the Schedule of Rates, a copy of which is Ex FL5.”

  1. The Partnership commenced operation on or about 1 September 2014. The purpose of the partnership was to build and operate an accommodation village for workers in Queensland. Construction of the village was completed prior to Mr Shepard's appointment and the Partnership had also ceased to trade prior to that time.

  2. The partners in the Partnership are (the “Partners”):

  1. the plaintiff, HN QCV Bottle Tree Village Pty Ltd, which holds a 25% interest in the Partnership;

  2. the third defendant, MM2 Group Pty Ltd, which holds a 50% interest in the Partnership; and

  3. the second defendant, Qantac LOR Pty Ltd, which holds a 25% interest in the Partnership.

  1. Although they were on notice of today’s proceedings, none of the Partners appeared. The absence of any objection from them to the orders sought in the amended notice of motion — which differs from the notice of motion dated 18 April 2017 of which the Partners were on notice by the addition of further remuneration of approximately $11,000 — fortifies me in the approach which the Court is taking today.

  2. QCV Bottle Tree Village Pty Ltd was appointed as the agent of the Partnership to manage and operate the business on behalf of the Partnership.

  3. Mr Shepard was appointed on the application of the plaintiff after a deadlock between the Partners about the making of additional contributions to enable the Partnership to meet its liabilities and to continue to trade.

  4. At the time of his appointment, the principal asset of the Partnership was cash at bank in the sum of $652,881.91. After various recoveries and refunds, the current asset position of the receivership is cash at bank of $712,134.12.

  5. The total claims of the creditors of the Partnership are in the amount of $2,030,497.18, of which Mr Shepard considers as acceptable claims in the sum of $1,524,152.72.

  6. A particular feature of this administration is that the vast majority of the creditors’ claims is owed to entities which are either legally or commercially related to the Partners or those who stand behind them. There are only three creditors who might, for want of a better description, be identified as completely arm's length and independent creditors. They are Foxtel Cable Television Pty Ltd, J Mullins Plumbing, and Paradise Outdoor Advertising, who together are owed approximately $23,000. I will refer to these collectively as the “External Creditors".

Consideration — recovery from the Partners

  1. The first issue which I need to consider is the order sought by Mr Shepard in Prayer 1 of the amended notice of motion.

  2. The evidence discloses that Mr Shepard, through his own efforts and through his solicitors, has gone to considerable lengths to attempt to negotiate with the Partners for them to make contributions in accordance with their interests in the Partnership to satisfy the amounts owed to the creditors. Those attempts have thus far come to nothing and Mr Shepard has formed the opinion that he will be unable to take matters any further without pursuing legal action of a yet unspecified kind against the Partners.

  3. In considering the application, I was concerned about the utility and expense of pursuing the Partners in relation to debts owed by the Partnership to entities which, as I have said, either strictly or in broad commercial terms are related to the Partners or those who stand behind them. However, I am satisfied on the basis of Ms Whittaker’s submissions, that the creditors stand sufficiently apart from the Partners in law so that the Applicant cannot be said to be exonerated, legally or commercially, from his obligation to endeavour to recover assets sufficient to satisfy the liabilities of the Partnership to those creditors. In those circumstances, the Court is prepared to make an order in terms of Prayer 1 in the amended notice of motion, subject to one qualification.

  4. That qualification is necessary because, on the information currently available to Mr Shepard, there must be some doubt as to whether the Partners are, to use the colloquial expression, "worth powder and shot". However, that is a matter which the Court is satisfied that Mr Shepard can and should, in the exercise of his duties, pursue further. However, that same consideration gives rise to the qualification, namely that the Court is of the view that Mr Shepard is justified to take all reasonable steps in relation to recovering the contributions from the Partners up to but not including the commencement of debt recovery proceedings.

  5. What I have in mind is that Mr Shepard can and should take those steps that he considers appropriate, including, if so advised, the issuing of statutory demands and responding to any application to set aside those demands. However, he should not commence debt recovery proceedings as plaintiff without further reference to the Court. The taking of such debt recovery proceedings would require a fresh assessment as to the costs, risks and likely rewards which would warrant Mr Shepard, again if so advised, returning to the Court for further directions.

  6. In the course of exchanges with Ms Whittaker, another incidental matter arose for consideration. That was the treatment of the External Creditors.

  7. In the circumstances of this administration, and given the relatively small amount owed to those External Creditors where funds are available to pay them out, the Court is prepared to make an order that Mr Shepard is justified in paying the External Creditors.

  8. I have noted that the Partners are all on notice of today's application and have not appeared. However, they are not on notice of the proposal to pay out the External Creditors. For that reason, the Court will make orders to the effect that Mr Shepard will be justified in paying the External Creditors, but only after he has given the Partners 28 days’ notice of his intention so to do and there has been no objection from them.

Consideration — remuneration

  1. The other substantial part of today's application is Mr Shepard's application for the approval of remuneration in the sum of $68,748 excluding GST.

  2. As I have already observed, the orders appointing Mr Shepard specified that he was entitled to be remunerated in accordance with a particular rate (see paragraph [4] above). I am satisfied that the calculations which underlie the application for remuneration have been performed in accordance with those rates.

  3. The power for the Court to approve Mr Shepard's remuneration is set out in Uniform Civil Procedure Rules 2005 (NSW) Pt 26 r 26.4 — “A receiver is to be allowed such remuneration (if any) as may be fixed by the court”. Although in terms it relates to receivers appointed under an instrument, s 425(8) of the Corporations Act 2001 (Cth) (the “Act”) provides a convenient summary of the kinds of matters which the Court should take into account:

“425(8) In exercising its powers under this section, the Court must have regard to whether the remuneration is reasonable, taking into account any or all of the following matters:

(a) the extent to which the work performed by the receiver was reasonably necessary;

(b) the extent to which the work likely to be performed by the receiver is likely to be reasonably necessary;

(c) the period during which the work was, or is likely to be, performed by the receiver;

(d) the quality of the work performed, or likely to be performed, by the receiver;

(e) the complexity (or otherwise) of the work performed, or likely to be performed, by the receiver;

(f) the extent (if any) to which the receiver was, or is likely to be, required to deal with extraordinary issues;

(g) the extent (if any) to which the receiver was, or is likely to be, required to accept a higher level of risk or responsibility than is usually the case;

(h) the value and nature of any property dealt with, or likely to be dealt with, by the receiver;

(i) whether the receiver was, or is likely to be, required to deal with:

(i) one or more other receivers; or

(ii) one or more receivers and managers; or

(iii) one or more liquidators; or

(iv) one or more administrators; or

(v) one or more administrators of deeds of company arrangement;

(j) the number, attributes and behaviour, or the likely number, attributes and behaviour, of the company's creditors;

(k) if the remuneration is ascertained, in whole or in part, on a time basis:

(i) the time properly taken, or likely to be properly taken, by the receiver in performing the work; and

(ii) whether the total remuneration payable to the receiver is capped;

(l) any other relevant matters.”

  1. The cognate provision in relation to liquidators' remuneration was considered by the Court of Appeal in Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liquidation) v Sakr [2017] NSWCA 38; (2017) 118 ACSR 333 (per Bathurst CJ; Beazley P, Gleeson JA, Barrett and Beach AJA agreeing) (“Sanderson”). Their Honours noted (at paragraph [12]) that it is well established that the same principles are to be applied to the Court’s powers under the Act to determine liquidators’ and receivers’ remuneration. In my respectful opinion, there is no reason why that should not also be the case for court-appointed receivers, subject only to any specific orders the Court may make on the subject. Order 10 referred to in paragraph [4] above is an example of such a specific order.

  2. As Ms Whittaker pointed out during the course of her submissions, a significant part of the debate in Sanderson turned on the applicability of ad valorem remuneration. That is not an issue in this application because the Court has already ordered that Mr Shepard is entitled to be remunerated in accordance with specified hourly rates.

  3. In approaching today’s application, I have borne in mind, as a guide, the factors set out in s 425(8) Corporations Act and these observations of the Chief Justice in Sanderson:

“54.   It is well settled that the onus is on the liquidator to establish that the remuneration claimed is reasonable and that it is the function of the Court to determine the remuneration by considering the material provided and bringing an independent mind to bear on the relevant issues: Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96; (1998) 16 ACLC 1653; Conlan (as liquidator of Rowena Nominees Pty Ltd) v Adams (2008) 65 ACSR 521; [2008] WASCA 61 at [28]–[29]. Although these two cases related to the legislation as it stood prior to the 2007 amendments, the principles referred to in them remain applicable. Further, it will be expected that the liquidator in supplying material to enable the Court to assess whether a remuneration claim was reasonable, would supply material by reference to the matters referred to in s 473(10).

55.   That is not to say that the question of proportionality has no bearing on the task to be undertaken by the Court. As the Federal Court said in Templeton v ASIC (at [31]) the question of proportionality is a well recognised factor in considering the question of reasonableness and the factors in s 425(8)(d)-(e) and (g)-(h) (the equivalent to s 473(10)(d)-(e) and (g)-(h)) have as their unifying theme the concept of proportionality. The Court in that case recognised (at [32]) that the question of proportionality in terms of work done as compared with the size of the property the subject of the insolvency administration or the benefit to be obtained from the work, is an important consideration in determining reasonableness. The Court also stated (at [33]), endorsing the observations of McClure JA in Conlan v Adams supra (at [47]), that the work done must be proportionate to the difficulty and importance of the task in the context in which it needs to be performed, stating that that is what is encompassed in assessing the value of the services rendered.”

  1. The evidence on this application has set out in considerable detail, which it is unnecessary for me to repeat in these short reasons, how it was, why and by whom the various tasks were undertaken in connection with this administration. I am satisfied that they were necessary and reasonable. In particular, I have taken account of the fact that this has been something of an unusual administration because of the time which the receiver has had to spend dealing with the Partners and their legal representatives in an attempt to persuade them to make the contributions for which they are liable under the partnership arrangements.

  2. I am also satisfied that Mr Shepard has been properly conscious of the seniority of the staff engaged in the administration being appropriate for the nature of the task. That is to say, those matters properly requiring his attention have been attended to by him, whereas less significant, but nonetheless necessary, tasks appropriate to more junior staff have been undertaken by them.

  3. Finally, bearing in mind the consideration of proportionality, the remuneration sought by Mr Shepard is approximately half that for which he has become liable to his lawyers in connection with the administration and represents a relatively small percentage of the current corpus of the Partnership's assets and an even smaller percentage of the liabilities of the Partnership.

  4. The Court is therefore satisfied that the amount sought by Mr Shepard is reasonable and proportionate when the particular circumstances of this administration are taken into account.

  5. For these reasons, remuneration will be approved in the sum sought in the amended notice of motion.

Conclusion

  1. I will direct the Applicant by his legal representatives to email short minutes to my Associate later today so that I can make the formal orders in chambers to give effect to these reasons.

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Amendments

08 August 2017 - Amendment to representation - amended to Applicant/Receiver and Manager

Decision last updated: 08 August 2017

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