In the matter of Hunter Rural Division of General Practice Limited (in liquidation)
[2015] NSWSC 279
•23 February 2015
Supreme Court
New South Wales
Medium Neutral Citation: In the matter of Hunter Rural Division of General Practice Limited (in liquidation) [2015] NSWSC 279 Hearing dates: 23 February 2015 Date of orders: 23 February 2015 Decision date: 23 February 2015 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Liquidators’ remuneration fixed. Costs to be paid out of assets of the company.
Catchwords: CORPORATIONS – winding up – liquidators – liquidators’ remuneration – application for order fixing liquidators’ remuneration – appropriateness of quantum – source of court’s power to fix liquidators’ remuneration – where creditors have fixed remuneration – held, (Cth) Corporations Act 2001, s 504, more appropriate Legislation Cited: (Cth) Corporations Act 2001, s 504, s 511 Cases Cited: In the matter of Lowery Classic Homes Pty Ltd (in liq) [2013] NSWSC 719 Category: Procedural and other rulings Parties: Brad Morelli and Andrew John Spring as liquidators of Hunter Rural Division of General Practice Limited (in liquidation) (plaintiffs) Representation: Counsel:
Solicitors:
E A Walker (plaintiffs)
Harris Wheeler Lawyers (plaintiffs)
File Number(s): 2014/356417
Judgment (ex tempore)
-
HIS HONOUR: The plaintiffs Brad Morelli and Andrew Spring, are the voluntary liquidators of the company Hunter Rural Division of General Practice Limited, which went into a deemed creditors voluntary winding up consequent upon an earlier voluntary administration in which the liquidators were the administrators.
-
The creditors approved remuneration of the administrators in the sum of $34,825. On 21 May 2012, after the winding up commenced, the creditors approved their remuneration prospectively in the amount of $45,000. A further $5,438 was approved on 1 October 2012 retrospectively, and $5,000 prospectively. For the period from 13 September 2013, a further $15,000 was approved. That amounts, in all, to a total approval in respect of the liquidation for $70,438.
-
The liquidation has realised receipts of $2,222,116. Creditors have been paid in full 100 cents in the dollar. A surplus in excess of $1 million remains.
-
The company being a company limited by guarantee, the liquidators have had to take steps to ascertain the wishes of the members as to an appropriate destination for the surplus in conformity with the provisions of the constitution. In order to do so, the liquidators sought submissions from a number of potential beneficiaries, considered them and put them to a general meeting. They now apply by originating process for an order pursuant to (Cth) Corporations Act 2001, s 511 or s 504, fixing their further remuneration in a sum of approximately $35,000 to compensate work done in excess of the amount approved to date, and provision for the work to be undertaken to complete the liquidation.
-
The originating process proposes that the matter be referred to the registrar to fix and determine the quantum of the remuneration, but it seems to me that that simply unnecessarily incurs additional costs where the exercise can be undertaken by the Court on the available evidence.
-
I have, on a number of occasions in recent times, expressed views about the amount of liquidators’ remuneration. In this case, however, the total amount claimed, if the amount presently sought is approved, will be a little in excess of $100,000, which represents less than 5% of realisations in the liquidation, and it seems to me entirely appropriate.
-
Accordingly, I propose to make orders approving and fixing the remuneration without further ado.
-
It is clear enough that there is power under either s 504 or under s 511 to do so. I am inclined to think that s 504 is probably the appropriate source of power here, since the creditors have fixed remuneration to the conclusion of the liquidation, although making provision for a further application to be made. In short, in the absence of a further application, the remuneration would be as fixed by the last creditors meeting and, for that reason, it seems to me that the appropriate course is probably to act under s 504; but, alternatively, s 511 is available [In the matter of Lowery Classic Homes Pty Ltd (in liq) [2013] NSWSC 719, [11]].
-
The Court therefore orders that:
Pursuant to Corporations Act, s 504(1) and/or s 511(2), the remuneration of the plaintiffs as liquidators of Hunter Rural Division of General Practice Limited (in liquidation) ACN 061 782 965, for the period from 1 October 2013 to finalisation of the liquidation, be fixed in the sum of $35,000 plus GST of $3,500 and be paid to the plaintiffs out of the assets of the company.
The costs of the application fixed in the sum of $9,900 be paid out of the assets of the company.
**********
Decision last updated: 20 March 2015
1
1