In the matter of Australasian Barrister Chambers Pty Ltd

[2019] NSWSC 1886

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Australasian Barrister Chambers Pty Ltd [2019] NSWSC 1886
Hearing dates:	18 and 20 December 2019
Decision date:	23 December 2019
Jurisdiction:	Equity - Corporations List
Before:	Black J
Decision:	Orders to be made approving liquidator’s remuneration.
Catchwords:	CORPORATIONS - winding up – liquidators – past and future remuneration - where application opposed – where significant steps were required to be taken in respect of litigation – where limited assets remaining in company – whether remuneration should be approved.
Legislation Cited:	- Corporations Act 2001 (Cth) ss 473, 473(3), 473(10), 1581 - Insolvency Law Reform Act 2016 (Cth) - Insolvency Practice Schedule (Corporations) s 60-12 - Supreme Court (Corporations) Rules 1999 (NSW) r 9.4
Cases Cited:	- Ide v Ide [2004] NSWSC 751; (2004) 50 ACSR 324 - Minus, in the matter of ABCD Corporation Pty Ltd [2019] FCA 1523 - Re Australasian Barrister Chambers Pty Ltd (in liq) [2016] NSWSC 1767 - Re Australasian Barrister Chambers Pty Ltd (in liq) [2017] NSWSC 597 - Re Australasian Barrister Chambers Pty Ltd [2016] NSWSC 1939 - Re Australasian Barrister Chambers Pty Ltd [2019] NSWSC 799 - Re Banksia Securities Ltd (in liq) (recs and mgrs apptd) [2017] NSWSC 540 - Re J & Lee Property Investment Group Ltd (in liq) [2019] NSWSC 927 - Re NR Wolli Creek Pty Ltd (recs & mgrs apptd) [2019] NSWSC 313 - Re Sakr Nominees Pty Ltd [2017] NSWSC 668 - Sanderson, as liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr [2017] NSWCA 38 - Selth v Australasian Barrister Chambers Pty Ltd (No 3) [2017] FCA 649 - Selth v Australasian Barrister Chambers Pty Ltd (No 4) [2017] FCA 855
Category:	Procedural and other rulings
Parties:	The Owners – Strata Plan 21574 (Plaintiff) Australasian Barrister Chambers Pty Ltd (Defendant) David Henry Sampson as liquidator of Australasian Barrister Chambers Pty Ltd (in liq) (Applicant on Interlocutory Process) Australasian Barrister Chambers Pty Ltd (Respondent on Interlocutory Process) ABCD Corporation Pty Ltd (Additional Respondent on Interlocutory Process)
Representation:	Counsel: R D Marshall SC (for the Applicant on Interlocutory Process) D Minus (appearing as director of ABCD Corporation Pty Limited)   Solicitors: Gillis Delaney Lawyers (for the Applicant on Interlocutory Process)
File Number(s):	2015/326742

Judgment

1. By Amended Interlocutory Process dated 28 November 2019, the Applicant, Mr David Sampson as liquidator of Australasian Barrister Chambers Pty Ltd (in liq) (“ABCPL”) applied for an order under s 473 of the Corporations Act 2001 (Cth) that his remuneration as liquidator of ABCPL be fixed in specified amounts, namely $72,797 exclusive of GST for the period from 8 December 2015 to 31 July 2019; $10,438 excluding GST for the period from 1 August 2019 to 17 September 2019; and in a future amount of $20,350 excluding GST for the period from 18 September 2019 to the conclusion of the winding up.

2. Mr Sampson joined ABCPL as the Respondent to the application. ABCD Corporation Pty Ltd (“ABCD”) was also joined, on its application, as an additional Respondent to the application and opposed the application. I granted leave to its director, Mr Minus, to represent it in the application. I recognise that the evidence indicates that Mr Minus was made bankrupt in December 2018, and the parties did not address the question whether he was entitled to act as, and remain as, a director of ABCD by reason of his bankruptcy. I note, for completeness, that the Federal Court of Australia has recently granted leave for Mr Minus to manage four proprietary companies, including ABCD, although the parties did not draw my attention to that decision: Minus, in the matter of ABCD Corporation Pty Ltd [2019] FCA 1523. Neither party submitted that I should not permit Mr Minus to appear for ABCD in those circumstances, and he did so on that basis. The impact of Mr Minus’ bankruptcy will require further consideration, in any further application before this Court in which he seeks, as director, to appear for a corporate entity.

3. It was difficult to identify any commercial logic underpinning ABCD’s approach to this application, where it seems unlikely that ABCD would ultimately achieve any substantial economic recovery as a creditor or contributory, given the amount of other creditors’ claims in the liquidation. ABCD’s approach has likely reduced the prospect that sufficient funds will be available in the liquidation to meet the liquidator’s remuneration and creditors’ claims, particularly if it is ultimately not possible for the liquidators to enforce an order or costs against ABCD where its asset position is unknown or against Mr Minus where he is bankrupt.

Affidavit evidence

4. Mr Sampson relied on his affidavit dated 19 September 2019. His evidence was that he was appointed as liquidator of ABCPL by order of the Court made on 8 December 2015, in a winding up application brought by The Owners – Strata Plan No 21574 (“Owners Corporation”). Mr Sampson also points out that the affairs of ABCPL, this liquidation, and his associated appointment as receiver of certain land, has generated an extraordinary amount of litigation, in some of which ABCD or Mr Minus have been parties in the opposite interest to ABCPL and Mr Sampson. ABCPL was a defendant in proceedings brought by Mr Selth (in a representative capacity) for members of the Australian Bar Association, in which judgments were delivered in the Federal Court of Australia in, inter alia, Selth v Australasian Barrister Chambers Pty Ltd (No 3) [2017] FCA 649 and Selth v Australasian Barrister Chambers Pty Ltd (No 4) [2017] FCA 855. Reported decisions concerning the receivership and the liquidation include Re Australasian Barrister Chambers Pty Ltd (in liq) [2016] NSWSC 1767, where Brereton J made an order appointing Mr Sampson as receiver of certain land, in order to facilitate ABCPL’s exercise of a right of indemnity against assets that it formerly held on trust; Re Australasian Barrister Chambers Pty Ltd [2016] NSWSC 1939, where Brereton J declined to extend a stay of the winding up of ABCPL, which had previously been ordered in order to allow Mr Minus an opportunity to raise funds to seek to terminate that winding up; Re Australasian Barrister Chambers Pty Ltd (in liq) [2017] NSWSC 597, where I dismissed an application brought by ABCD seeking injunctive relief to restrain the sale of the property of which Mr Sampson had been appointed as receiver and an associated appeal; and Re Australasian Barrister Chambers Pty Ltd [2019] NSWSC 799, where Brereton J determined the amount of remuneration to which Mr Sampson was entitled as receiver.

5. Mr Sampson sets out the steps undertaken in the first eight months of the winding up beginning on 8 December 2015 and then from July 2016, which include part of the first period in which he now claims remuneration. I will address that evidence in dealing with that claim below. Mr Sampson also addressed a number of matters which have led to complexity in the liquidation, including a long running dispute between the Owners Corporation and ABCPL over unpaid strata levies which culminated in the winding up of ABCPL; the complexity of the position in respect of ABCPL’s right of indemnity against the trust; the existence of the proceedings against ABCPL in the Federal Court; and the several proceedings which ABCD and other companies associated with Mr Minus have brought against Mr Sampson in his capacity as receiver of the property. Mr Sampson also led evidence as to the existence of extraordinary issues and a higher level of risk in the winding up, because Mr Minus is or was a barrister, and has from time to time acted for ABCD and other companies in proceedings brought by them against Mr Sampson as receiver, involving the several proceedings at first instance and one in the Court of Appeal to which I referred above. Mr Sampson also referred (Sampson 19.9.19 [44]ff) to the value of the property involved in the matter, by reference to the value of the property sold as receiver and the value of the right of indemnity, after allowing for the amount of strata levies owed by ABCPL to the Owners Corporation and other claims against ABCD. Mr Sampson also addressed the nature of the creditors of ABCPL, including the Owners Corporation and Mr Minus and ABCD. I have noted above that the New South Wales Bar Association and the Australian Bar Association are now also creditors of ABCD as a result of unsatisfied costs judgments against it.

6. Mr Sampson referred to the basis on which his remuneration as a liquidator was calculated, on a time costing basis, at the hourly rates he and his staff usually apply from time to time from 8 December 2015. He notes that the relevant work is recorded daily, using a manual timesheet or by entering time into a software system, with a description of the nature of any chargeable work undertaken. An exhibit to Mr Sampson’s affidavit included a work-in-progress summary for the period from 8 December 2015 to 31 July 2019, for which an order for remuneration is sought on a historical basis, and five supporting documents, which record time charges both chronologically and by reference to the categories recommended by the Australian Restructuring Insolvency and Turnaround Association (“ARITA”) in respect of insolvency work. The separate schedules in turn indicate the work done in those categories of work, by reference to “assets”, “creditor”, “administration” and “investigation”.

7. Mr Sampson’s affidavit evidence addressed the work expected to be done to complete the liquidation, initially in anticipation, for the period from 1 August 2019 to 17 September 2019, and then led further evidence as to that remuneration after that work was done. Mr Sampson’s evidence also addressed his anticipated remuneration on a time costing basis for tasks required to complete the liquidation for the period from 18 September 2019 to the completion of the winding up. I will address that evidence below.

8. Mr Sampson also referred to a meeting of creditors of ABCPL held on 21 August 2019 to consider whether to approve his remuneration as liquidator of ABCPL. Four creditors were admitted for voting purposes at that meeting, namely the Australian Bar Association and the New South Wales Bar Association, which each have substantial costs judgments against ABCPL, and ABCD and Mr Minus. The Australian Bar Association and the New South Wales Bar Association voted in favour of the remuneration resolution and ABCD and Mr Minus voted against it. In those circumstances, that resolution was not carried and Mr Sampson has brought this application has been brought before the Court.

9. Mr Sampson also relied on the affidavit dated 21 October 2019 of Ms Maegan Hurst, an employee with his firm, referring to service of the application on the solicitors acting for the New South Wales Bar Association and the Australian Bar Association who, as I noted above, are now creditors of ABCPL. An affidavit dated 23 October 2019 of Mr Robert Hodgson, also an employee of the liquidator’s firm, referred to service of the application on Mr Minus and ABCD. As I noted above, ABCD appeared to oppose the application, and Mr Minus appeared as its director on its behalf. By a further affidavit dated 23 October 2019, Mr Sampson addressed notice given to creditors of this application, in the manner required by former r 9.4 of the Supreme Court (Corporations) Rules 1999 (NSW) and noted that he had not then received any notice of objection to his claim for remuneration. Obviously, ABCD opposed the application at the hearing.

10. By his affidavit dated 13 December 2019, Mr Sampson referred to the receipt of the net proceeds of his receivership by ABCPL on 20 October 2019, the payment of tax invoices represented by the solicitors acting for ABCPL and Mr Sampson, and time spent working on the liquidation by Mr Sampson and his staff from 1 August 2019 to 17 September 2019, the second period which is the subject of the application. I will address that evidence below.

11. Mr Sampson was cross-examined by Mr Minus at some length, although aspects of that cross-examination were of tangential relevance, at best, so far as they were directed to activities in the receivership which were the subject of the previous application for remuneration determined by Brereton J. It was not put to Mr Sampson that the hourly rates of his firm were unreasonable; or that time spent in particular attendances was not reasonably spent; or that there was any lack of reasonable delegation of work to more junior staff members, as evidenced by the time records; or that time recorded by Mr Sampson and his staff members was not genuinely spent on productive work in respect of the liquidation. It could not have been, and was not, put that the liquidation was anything other than a difficult one, punctuated by the several proceedings involving ABCD, Mr Minus and associated entities. I formed the view that Mr Sampson was a helpful and honest witness, who provided constructive explanations of time entries and categories of work which were questioned by Mr Minus, although he occasionally, understandably, had limited recollection of specific activities where documents relating to those activities were not put before him in cross-examination.

12. ABCD did not lead affidavit evidence in this application and Mr Minus sought, at times, to suggest that it had been deprived of the opportunity to do so. I reject that submission. On 11 November 2019, I made orders, when ABCD was present and represented by Mr Minus, directing that any party seeking to be heard at the final hearing of this application file and serve any evidence and objections on which it intended to rely by 13 December 2019, allowing several weeks for ABCD to prepare such affidavit evidence. ABCD had the opportunity to lead evidence pursuant to that order. I will return to the position in respect of submissions below.

13. ABCD tendered a letter dated 7 December 2017 from the solicitors acting for the Owners Corporation to Mr Sampson’s firm, which recorded that it had not received an “update” from Mr Sampson regarding a valuation or proposals to list the premises for auction, and had since been informed that the premises had been sold, when members of the Owners Corporation were unaware of the date of any auction. That letter in turn sought advice as to the anticipated repayment of the Owners Corporation’s debt. Mr Minus relied on that letter as impugning Mr Sampson’s evidence that, inter alia, he had exercised care in communications with the Owners Corporation. I am not persuaded that a single letter of that kind impugns that evidence and, in any event, that conduct relates to Mr Sampson’s role as Court-appointed receiver which is not the subject of this application, and any expectation of the Owners Corporation that it be consulted as to relevant matters is limited by his obligations of independence in that regard. As Mr Sampson pointed out in cross-examination, there was no auction of the property, because it was sold off-market, in circumstances that have also been addressed in earlier judgments which did not reach findings adverse to Mr Sampson or the manner of that sale.

14. ABCD also tendered the affidavit of Mr Sampson dated 29 August 2019, in which Mr Sampson referred to the accounts of the receivership and to receipts and payments in the receivership. It was not entirely clear what ABCD sought to establish from that affidavit and the associated exhibit. Its content was not adverse to Mr Sampson, and Rees J has previously made orders releasing the receiver having regard to that evidence.

15. On 19 December 2019, ABCD applied to reopen its evidence and to further cross-examine Mr Sampson, after Mr Minus had indicated the day before that his cross-examination was complete and that ABCD had closed its case; Mr Marshall had made closing submissions for the liquidator on that basis; and I had reserved judgment and indicated when it was likely to be delivered. I did not grant leave to ABCD to reopen its case for reasons noted in a separate judgment.

Applicable principles

16. There was no substantial dispute between the parties as to the principles applicable to determination of a liquidator’s remuneration. Mr Sampson brings this application under s 473(3) of the Corporations Act, which was repealed and replaced by the Insolvency Law Reform Act 2016 (Cth) with effect from 1 March 2017. I am satisfied that, as Mr Marshall points out, s 473 of the Corporations Act continues to apply in this application, where it relates to the remuneration of a liquidator who was appointed before the commencement day, by reason of s 1581 of the Act.

17. A number of matters relevant to such an application are identified in s 473(10) of the Corporations Act. As Mr Marshall points out, the factors specified in s 473(10) of the Act and those now specified in s 60-12 of the Insolvency Practice Schedule (Corporations) in any event have a similar character, and include, inter alia, whether the work performed was reasonably necessary; the period over which it was performed, which was in this case a relatively short period of reasonably intense work; the quality and complexity of the work; and whether the provisional liquidator was required to deal with extraordinary issues or accept a higher level of responsibility than was ordinarily the case. Mr Marshall also points out that this application was brought in accordance with the procedure contemplated by former r 9.4 of the Supreme Court (Corporations) Rules, although that rule was repealed on 5 April 2019, consequential upon the amendments made to the Corporations Act by the Insolvency Law Reform Act.

18. Mr Minus for ABCD also referred to the scope of s 473(10) of the Corporations Act and referred to the consideration of relevant principles in well-known decisions including Ide v Ide [2004] NSWSC 751; (2004) 50 ACSR 324 at [39]ff and the decision of the Court of Appeal in Sanderson, as liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr [2017] NSWCA 38 and my decision in Re Sakr Nominees Pty Ltd [2017] NSWSC 668. Mr Minus also addressed the principles applicable to a release of a liquidator, which is not sought in this application.

19. Both parties recognise that the proper approach is established by the observations of the Court of Appeal in Sanderson, as liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr above as to the scope of that provision. The relevant principles were also summarised by Gleeson JA in Re Banksia Securities Ltd (in liq) (recs and mgrs apptd) [2017] NSWSC 540 and, on remittal from the Court of Appeal in Re Sakr Nominees Pty Ltd above at [23]–[25], I summarised the applicable principles, as they stand following the Court of Appeal’s decision, as follows:

“A liquidator is entitled to reasonable remuneration for his or her services and the liquidator bears the onus of establishing that the amount of remuneration they seek is fair and reasonable and, in determining a liquidator’s reasonable remuneration, the Court will have regard to the factors specified in s 473(10) of the Corporations Act , to which I refer further below. The Court must bring an independent mind to bear on the question whether the remuneration sought by a liquidator is fair and reasonable; the liquidator must lead evidence in sufficient detail that the Court can determine that question; and the Court will generally need to be provided with an account in itemised form, setting out at least the details of the work done; the persons who did the work; the time taken to perform the work; the remuneration claimed; and, to the extent relevant, the expenses incurred by the liquidator: Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96 at 102–103. Proportionality is an important matter in considering the question of whether remuneration is reasonable, and the value of a liquidator’s work can include the benefit of resolving the position of creditors and beneficiaries; the benefit to the community of not permitting assets to remain unproductively in the hands of a defunct company for a long period; and can include work that was required to be done, although it did not result in a return to creditors: Thackray v Gunns Plantations Ltd [2011] VSC 380; (2011) 85 ACSR 144 at [64]; Macks v Maka [2015] SASC 200; (2015) 110 ACSR 279 at [52]–[66]; Warner, Re GTL Tradeup Pty Ltd (in liq) [2015] FCA 323; (2015) 104 ACSR 633 at [70]–[71]; Templeton v Australian Securities and Investments Commission [2015] FCAFC 137; (2015) 108 ACSR 545. …

In Sanderson, as liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr above, Bathurst CJ (with whom the other members of the Court of Appeal agreed) observed (at [54]) that the onus is on a liquidator to establish that the remuneration claimed is reasonable, and it is the Court’s function to determine that remuneration by considering the material provided to it and bringing an independent mind to bear on the relevant issues; that many of the factors specified in s 473(10) of the Corporations Act have the concept of proportionality as an underlying theme, and that concept is an important consideration in determining whether remuneration is reasonable, so 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 (at [55]); and that the fact that work does not increase the funds available for distribution to creditors or contributories does not mean that the liquidator is not entitled to be remunerated for it, where it was reasonable to carry out that work and the amount charged is reasonable (at [57]–[58]). The Court of Appeal’s decision in Sanderson, as liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr above does not prefer any of the particular approaches to remuneration to which I have referred above to any other of those approaches and, in particular, does not require a time-based approach to remuneration to be adopted in preference to percentage-based approach to remuneration. Whether time-based remuneration or a percentage of recoveries is appropriate in a particular case will depend, in part, on the basis on which the liquidator puts his or her application for remuneration; in part, on the view taken by any persons who oppose the remuneration application; and, in part, the view taken by the Court.”

20. In Re Sakr Nominees Pty Ltd above at [18], I also pointed to the need for a liquidator’s evidence in support of an application of this kind to provide sufficient justification of the extent of the work that had been required, why that work was undertaken and why it was proportionate to the complexity or importance of the issues to be addressed. I also there observed that the tender of work in progress schedules was not necessarily sufficient to provide such an explanation and that:

“it is not the Court’s role to review such schedules to seek to deduce which tasks relate to which matters, and why they were appropriately undertaken, where that matter was not addressed by adequate evidence led by the liquidator who seeks approval of his remuneration.”

The liquidator led such evidence in the affidavit evidence to which I have referred above.

21. This approach was in turn noted by Rees J in Re J & Lee Property Investment Group Ltd (in liq) [2019] NSWSC 927 at [32] and in Re NR Wolli Creek Pty Ltd (recs & mgrs apptd) [2019] NSWSC 313, where I adopted that approach in determining a claim for remuneration by provisional liquidators and observed (at [6]) that:

“The Court will typically have regard, in dealing with an application for approval of remuneration by an external administrator, to factors of the kind that were formerly specified in s 473(10) of the Corporations Act … The value or nature of the property dealt with is also of relevance, although perhaps less relevant in a provisional liquidation, particularly here where the relevant property passed into the control of a receiver appointed by a secured creditor. I referred to the applicable principles as confirmed by the Court of Appeal's decision in Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr [2017] NSWCA 38; (2017) 118 ACSR 333, in Re Sakr Nominees Pty Ltd [2017] NSWSC 668 at [23]–[25], and again in Re Plutus Payroll Australia Pty Ltd (in liq) [2018] NSWSC 1092 at [14]. The Court will have regard to issues of proportionality in an application of this kind, and the case law has now accepted that, at least in some circumstances, time costing may be an appropriate starting point for a calculation of remuneration, although the assessment of proportionality will be important in testing the reasonableness of time-based remuneration. There will be less room for remuneration by a percentage of asset realisations achieved in a provisional liquidation, particularly where, as here, the relevant assets are not under the provisional liquidators’ control, and much of the work done will be devoted to investigations and statutory duties rather than to asset realisation.”

The parties’ submissions and determination

22. On 11 November 2019, I made an order, when ABCD was present and represented by Mr Minus, for outlines of submissions which were to be included in a court book provided to the Court prior to the hearing. The liquidator complied with that order and ABCD did not. Mr Marshall, in submissions for the liquidator, sets out a chronology of events concerning ABCPL and ABCD drawing partly on Mr Sampson’s affidavit evidence and observations made in the several judgments to which I have referred above. I have been conscious that the observations in those judgments are not admissible to prove any disputed fact in this application, although there appears to be little controversy as to the matters of chronology to which Mr Marshall refers.

23. At the hearing on 18 December 2019, I extended the time for ABCD to provide its submissions so they could be delivered in writing after the conclusion of the hearing, by 4.30pm on 19 December 2019, in circumstances that Mr Minus indicated that he did not then require an opportunity for oral submissions. On 19 December 2019, Mr Minus seeking to reopen ABCD’s evidence and further cross-examine Mr Sampson. I heard that application on 21 December 2019 and dismissed it, for the reasons set out in a separate judgment. ABCD served its submissions, initially in incomplete form on 20 December and in complete form on the morning of 21 December, and the liquidator served brief submissions in reply, as directed, on 21 December 2019.

24. Mr Minus advances submissions as to the circumstances in which the relevant property was sold, a matter that related to the conduct of the receivership and not the liquidation, and has been addressed in earlier judgments of the Court and is not in issue in this application. He advances criticisms of the form in which the liquidator led evidence in this application. Putting aside wider issues that he raises as to the impact of a “digital age” and whether lawyers are “mostly innumerate”, which do not require decision in this application, it seems to me that the evidence led by the liquidator was in an appropriate form, so far as it involved original work in progress schedules, sorting of attendances by the ARITA categories and identification of the staff that had undertaken the particular work and, in his affidavit, an explanation of why the work was necessary in a form that the case law has encouraged. I also do not accept Mr Minus’ particular criticism of the liquidator’s tender of a remuneration report provided to creditors, for a slightly shorter period than was in issue in an aspect of this application, because that document was relevant in its original form, and the liquidator separately led evidence as to the time periods in issue in this application. It was also apparent from Mr Minus’ cross-examination of Mr Sampson that the two were readily reconciled. It did not seem to me that, as Mr Minus put, the evidence led by the liquidator “obfuscates the evaluation of the objective criteria” or raised any difficulties that were not readily addressed by the questions asked and straightforward answers given by Mr Sampson in cross-examination.

25. Mr Minus advances comments as to the phases of the liquidator’s work referred to in Mr Sampson’s evidence and Mr Marshall’s submission, to which I should have regard only to the extent that the assertions of fact made are in evidence. I do not accept Mr Minus’ contention, in respect of the period from December 2015 to February 2016, that the liquidator was not required further to investigate matters as to which Mr Minus or ABCD had provided information, where the issues as to the property holding and the trust structure were relatively complex and experience teaches that the directors of companies in liquidation do not always accurately understand, or disclose, their affairs. The information provided by ABCD or Mr Minus, to which he refers, that ABCPL had not traded and had “no other significant assets” would not, without further inquiry, have identified its substantial asset by way of a right of indemnity against the trust, which has been the source of the recoveries made by the liquidator and receiver.

26. Mr Minus refers, in respect of the period from February 2016 to May 2016, to his advice to the liquidator of a claim by ABCPL against the Owners Corporation as a result of earlier litigation and of the provision of a “detailed analysis” of the debt at the liquidator’s request. That proposition does not establish that such a claim should have been pursued, where neither its merit nor the funding to pursue it are established, and does not impugn the reasonableness of the work done or time spent by the liquidator and staff in this period. Mr Minus notes, but does not specifically criticise, the work then done by Mr Sampson in seeking to secure funding for his appointment as a receiver of the property and the steps taken to bring about that appointment between May 2016 and October 2016.

27. Mr Minus criticises Mr Sampson’s unwillingness further to extend discussions for a termination of the winding up, which had continued over several weeks, in late November 2016, but I give little weight to that criticism where Brereton J declined to extend a stay of the winding up for that purpose in a decision on a contested application. Mr Minus also criticises, with a reference to “proportionality”, the costs incurred in the period of about a year from December 2015 when, he contends, where the liquidator decided not to “negotiate” with Mr Minus to settle the owners corporation’s claim when ABCPL (or possibly ABCD) would shortly begin a third party contract using the property. I give little weight to that criticism where it was a matter for ABCD or Mr Minus and not the liquidator to develop an acceptable proposal to terminate the winding up, and these matters were also addressed in Brereton J’s decision not to extend the stay of the winding up.

28. It is common ground between the parties that costs of the liquidation were limited between December 2016 and April 2019, when the receivership was in place, and Mr Minus does not identify any specific criticisms of costs incurred by the liquidator in that period, including in complying with the continuing statutory obligations in respect of a liquidation. Mr Minus fairly recognises that the liquidator’s remuneration in the remaining period from May 2019 to September 2019 relate to a creditors’ meeting seeking approval for the liquidator’s remuneration and this application, when that approval was not given.

29. Mr Minus also submits, without identifying any particular attendance that warrants criticism, or any basis to challenge the hourly rates of the liquidator or his staff, that:

“Necessary and proper connection between the liquidation and the work performed and yet to be performed [sic]. Not all of the work performed by the liquidator during the liquidation to date was necessary and proper in the discharge of their statutory duties.”

That assertion does not undermine the evidence led by the liquidator, which allows the Court to assess the nature of the work done, and whether it was reasonably done, in the usual manner adopted in applications of this kind. Mr Minus also submits, and I accept, that an assessment of proportionality will be important in testing the reasonableness of time-based remuneration, and I have addressed that question, although recognising that the assessment of that issue presents somewhat differently in insolvencies that involve limited assets and significant litigation.

Determination as to Mr Sampson’s claim for past remuneration

30. As I noted above, Mr Sampson seeks an order that his remuneration as liquidator of ABCPL be fixed in the amount of $72,797 exclusive of GST for the period from 8 December 2015 to 31 July 2019. As I noted above, Mr Sampson’s affidavit evidence set out the steps undertaken in the first eight months of the winding up beginning on 8 December 2015, which include part of the first period in which he now claims remuneration. Those included actions that would ordinarily and properly be taken by a newly appointed liquidator, and also steps taken to investigate ABCPL’s transfer of title to the relevant property to ABCD prior to the winding up and identification of ABCPL’s assets in the light of that transfer, including its right of indemnity against trust property and certain domain names which were the subject of the proceedings brought in the Federal Court of Australia to which I have referred above. The steps taken by Mr Sampson in that period also included obtaining estimates of the value of the property and obtaining advice as to whether ABCPL should defend the Federal Court proceedings and communications with creditors, including the Owners Corporation which had applied for and obtained the winding up order (Sampson 19.9.19 [17]). Mr Sampson also sets out the activities which he undertook in the winding up of ABCPL from July 2016 (Sampson 19.9.19 [18]), including seeking funding from the Owners Corporation for his application to be appointed as receiver of the trust property, and taking steps to bring that application and attend at Court in respect of that application. Mr Sampson also addressed (Sampson 19.9.19 [20]ff) issues arising in relation to the ownership of the relevant property, including custodian arrangements under which ABCPL held that property on behalf of ABCD as trustee for the Minasian Superannuation Fund, and the circumstances in which ABCPL had acquired the relevant property, and investigations undertaken by Mr Sampson which indicated that the only realisable asset of ABCPL was its right of indemnity in respect of the trust. Mr Sampson also explained (Sampson 19.9.19 [31]-[32]) the need for a liquidator to take the steps set out in his affidavit in respect of the liquidation, and referred to the circumstances in which he applied to the Court for appointment as receiver of the relevant property, and subsequently achieved recoveries as receiver, the balance of which have now been remitted to ABCPL in liquidation.

31. As I noted above, Mr Sampson also seeks an order that his remuneration as liquidator of ABCPL be fixed in the amount of $10,438 excluding GST for the period from 1 August 2019 to 17 September 2019. Mr Sampson’s affidavit evidence addressed the work expected to be done to complete the liquidation, initially in anticipation, for the period from 1 August 2019 to 17 September 2019. Mr Sampson then led further evidence as to that remuneration after that work was done, by his affidavit dated 13 December 2019. The amount of time costs recorded in the second period claimed was $10,658, exclusive of GST, which slightly exceeds the amount of remuneration claimed for this period in this application.

32. In submissions, Mr Marshall addressed the position of ABCPL at the point at which Mr Sampson was appointed as liquidator; the several phases of work undertaken by Mr Sampson, by reference to his affidavit evidence and the work in progress reports that are in evidence, noting that that work included steps taken by Mr Sampson to seek to explore the possibility of an early termination of the winding up, if Mr Minus and his wife were able to fund repayment of the debt owed by ABCPL to the body corporate and the subsequent application for appointment as a receiver. Mr Marshall notes, and the evidence indicates, that work in the liquidation was rightly more restricted during the period of the receivership, although statutory filings were required in that period, and the Australian Bar Association and New South Wales Bar Association obtained orders for costs against ABCPL; and further work was done after Brereton J determined Mr Sampson’s remuneration as receiver, and further work will be required in finalising the winding up and deregistering ABCPL. Mr Marshall noted that the work in progress report, as I noted above, separated work into the ARITA categories and that work was performed by staff of different seniority, with Mr Sampson having the highest hourly rate and other work undertaken by a senior manager or supervisor or intermediate staff member with lower hourly rates.

33. Mr Marshall submits, and I accept, that an assessment of costs by reference to proportionality is less readily made in a case of this kind, both because a substantial asset was dealt with in the receivership, and because costs of a liquidation can readily escalate, as here, where a multiplicity of litigation arises in respect of the insolvency. Mr Marshall fairly points out that, but for the litigation that has arisen in the application, the proceeds available for distribution to creditors on the receivership and the liquidation would likely have been substantially larger than they will now be. While I am conscious that the remuneration application brought by Mr Sampson will have the result that there will be little return to creditors in the liquidation, the amount of litigation that has arisen in the receivership and liquidation was not in Mr Sampson’s control.

34. Mr Marshall also addresses the factors specified in s 473(10) of the Act. I am satisfied that the work performed by Mr Sampson was reasonably necessary, and his anticipated work is likely to be reasonably necessary, having regard to the evidence of the work that has been undertaken and the particular characteristics of the receivership and liquidation to which I have referred above. It is not to the point to suggest, as Mr Minus at one point did in cross-examination, that the costs would have been less if the winding up had been terminated. No doubt that is so, but that would have required that Mr Minus satisfy the Court that he should be allowed additional time to bring about that result, when he failed to do so within the time initially allowed by Brereton J, and he did not satisfy Brereton J of that matter.

35. I have had regard to the period within which the work was performed by Mr Sampson, noting that the amount of work undertaken in the liquidation was significantly reduced during the period of the receivership. I have had regard to the quality and complexity of the work undertaken, noting that Mr Sampson has been substantially successful in the numerous proceedings which have been brought in this matter, and the liquidation had a high degree of complexity, both because of the structural arrangements by which the property was held, and because of the extent of litigation involved in it. I am also satisfied that Mr Sampson was required to deal with extraordinary issues in the liquidation, where there would have been little reason to expect that ABCD or Mr Minus would have engaged in litigation to this extent, where the likely practical result of doing so would be to dissipate the funds that would be recovered by creditors or, possibly, ABCD as a contributory. Mr Sampson was also required to accept a higher level of risk or responsibility than is usually the case for that reason.

36. Mr Marshall also addresses, and I have regard to, the value and nature of the property dealt with, primarily the real property to which Mr Sampson was appointed as receiver and the right of indemnity held by ABCPL, but also the intellectual property which was subject to the proceedings in the Federal Court of Australia. Mr Marshall also points to the attributes and behaviour of ABCPL’s creditors who were, at least in respect of ABCD and Mr Minus, largely not cooperative with the liquidation and receivership throughout. I have also had regard to the time undertaken by Mr Sampson and his staff performing the relevant work, as set out in the work in progress report. Consistent with the authorities, I have undertaken a broad review of those matters, rather than a line by line review. I am satisfied that the time spent was reasonable.

30. For these reasons, I will approve the remuneration sought by Mr Sampson in the amount claimed by way of remuneration for past work in these periods.

Determination as to Mr Sampson’s claim for future remuneration

38. As I noted above, Mr Sampson also seeks an order that his remuneration as liquidator of ABCPL be fixed in a future amount of $20,350 excluding GST for the period from 18 September 2019 to the conclusion of the winding up. In submissions, Mr Minus noted this claim without identifying any basis for opposition to it.

39. Mr Sampson’s evidence addressed his anticipated remuneration on a time cost basis for tasks required to complete the liquidation for the period from 18 September 2019 to the completion of the winding up. Mr Sampson’s evidence (Sampson 19.9.19 [66]) was that he sought such approval for amounts of future remuneration given the “litigious context of this application”, a characterisation that was amply justified in the circumstances. Mr Minus, for ABCD, did not contend that the Court should not now address Mr Sampson’s claim for remuneration to the completion of the winding up on a forward-looking basis. That approach is obviously sensible, since the costs incurred in this application may well already be disproportionate to the amount of the remuneration claimed by Mr Sampson, and that lack of proportion will be exacerbated if a further application was required, on a historical basis, in respect of a claim for remuneration to the completion of the winding up.

40. Mr Sampson noted that the amounts for which he had sought approval for future remuneration were calculated on the assumption that the orders sought were not the subject of a contested hearing in this Court. Plainly, that assumption has been falsified. The manner in which this application proceeded, and the additional work which will have been required by it, means there is no real prospect that estimate of future costs would be excessive. Notwithstanding that development, it may not now be possible for Mr Sampson, having sought remuneration on this basis, to bring a claim for further remuneration beyond that which is now approved by the Court, absent a change in circumstances.

41. I am satisfied that it is appropriate to approve Mr Sampson’s anticipated remuneration in the amount claimed, in order to avoid the further costs that would be involved in another application, which would plainly be disproportionate to the amount of property that is now available for payment of the liquidator’s remuneration, or distribution to creditors, still less contributories.

Orders

42. I will make orders approving the remuneration claimed by the liquidator accordingly.

**********

Decision last updated: 23 December 2019