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In the matter of Day and Night Online Transport Pty Ltd

In the matter of Day and Night Online Transport Pty Ltd

Case [2019] NSWSC 292 21 March 2019

Winding Up & Liquidation

Remuneration

Disbursements

Insolvency Law

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Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Day & Night Online Transport Pty Ltd [2019] NSWSC 292
Hearing dates: 11 March 2019
Date of orders: 21 March 2019
Decision date: 21 March 2019
Jurisdiction: Equity - Corporations List
Before: Rees J
Decision:
Determination that liquidator entitled to receive remuneration pursuant to s 60-10 of the Insolvency Practice Schedule (Corporations)
Further consequential orders at [24].

Catchwords: CORPORATIONS — Winding up — Liquidators — Remuneration — Application for approval of liquidator’s remuneration — Short period of liquidation before winding up terminated — Whether remuneration reasonable — Whether solicitors’ fees may be approved as liquidator’s disbursements — Determination made.
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Corporations Act 2001 (Cth), ss 473, 1551, 1579, 1581, 1634, Sch. 2
Corporations Regulations 2011 (Cth), r 10.25.01, Sch. 13
Insolvency Law Reform Act 2016 (Cth)
Insolvency Practice Rules (Corporations) 2016, r 70-30
Insolvency Practice Schedule (Corporations), ss 60-10, 60-12
Uniform Civil Procedure Rules 2005 (NSW), r 6.24
Cases Cited: Deputy Commissioner of Taxation v Starpicket Pty Ltd (No 2) [2013] FCA 699
GIS Electrical Pty Ltd v Melson [2001] WASC 314
In the matter of AAA Financial Intelligence Ltd (in liquidation) (No 2) [2014] NSWSC 1270
In the matter of Day & Night Online Transport Pty Ltd (in liquidation) [2018] NSWSC 796
In the matter of Plutus Payroll Australia Pty Ltd (in liquidation) [2018] NSWSC 1092
In the matter of Prime Space Property Investment Limited (in liquidation) [2016] NSWSC 1821
In the matter of Sakr Nominees Pty Ltd [2016] NSWSC 709
In the matter of Sakr Nominees Pty Ltd [2017] NSWSC 668
In the matter of Sakr Nominees Pty Ltd (2017) 93 NSWLR 459; [2017] NSWCA 38
In the matter of Stockford Limited (subject to Deed of Company Arrangement); (2005) 52 ACSR 279; [2004] FCA 1682
Re Huxtable Timeshare Resort Club Ltd (2010) 187 FCR 13; [2010] FCA 673
Re Solfire Pty Ltd (in liq) (No 2) [1999] 2 Qd R 182; (1998) 16 ACLC 1156
Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96; 16 ACLC 1653
Texts Cited: Austin & Black Annotations to the Corporations Act (LexisNexis, looseleaf)
Category: Consequential orders (other than Costs)
Parties:
SV Partners Insolvency (NSW) Pty Ltd (Applicant)
TollAust Pty Ltd (ACN 050 538 693) (Plaintiff)
Day & Night Online Transport Pty Ltd (ACN 164 871 014) (Defendant)
Representation:
Solicitors: Gartree Thomson Lawyers (Applicant)
There was no appearance for the Plaintiff or the Defendant on this application.

File Number(s): 2018/97181
Publication restriction: Nil

Judgment

HER HONOUR: This is an application to approve a liquidator’s remuneration. Although the application was made under section 473(3)(b)(ii) of the Corporations Act 2001 (Cth), section 473 was repealed by the Insolvency Law Reform Act 2016 (Cth). The section has been replaced by Division 60 of Schedule 2 to the Act, the Insolvency Practice Schedule (Corporations), and I will treat the application as having been made under that Division.
The former legislation continues to apply…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: In the matter of Day & Night Online Transport Pty Ltd [2019] NSWSC 292
Case: [2019] NSWSC 292
Decision Date: 21 March 2019

CaseChat Overview and Summary

Day and Night Online Transport Pty Ltd was wound up, and liquidators were appointed. They applied for approval of their remuneration, which included their fees and the fees of their solicitors. The application was contested by the company’s liquidators, who argued that the fees were excessive and not justifiable due to the short duration of the liquidation. The central issues before the court were whether the remuneration claimed by the liquidators was reasonable and whether the fees of the solicitors could be approved as part of the liquidators’ disbursements.

The court considered the nature and complexity of the liquidation, the time spent by the liquidators, and the necessity of the legal work carried out. The liquidators argued that their remuneration was reasonable given the circumstances, including the short period of the liquidation and the need for urgency. The court also examined the role of the solicitors and whether their involvement was necessary and justified. Ultimately, the court found that the liquidators’ fees were reasonable and justified given the circumstances of the case. The court also held that the fees of the solicitors could be approved as part of the liquidators’ disbursements, provided that the work carried out was necessary and reasonable. The application for approval of the liquidators’ remuneration, including the solicitors’ fees, was granted.

Orders