In the matter of Mecfab Holdings Pty Ltd
[2015] NSWSC 2053
•27 April 2015
Supreme Court
New South Wales
Medium Neutral Citation: In the matter of Mecfab Holdings Pty Ltd [2015] NSWSC 2053 Hearing dates: 27 April 2015 Date of orders: 27 April 2015 Decision date: 27 April 2015 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Receiver’s remuneration approved; receiver’s statement of accounts passed.
Catchwords: CORPORATIONS – receivers, controllers and managers – remuneration and expenses – where units holders of unit trust in receivership have not objected to claimed remuneration – held, amount claimed by receiver approved. Legislation Cited: (Cth) Corporations Act 2001, s 437A Category: Procedural and other rulings Parties: Darren John Vardy (applicant)
Mecfab Holdings Pty Ltd (voluntary administrator appointed) ACN 124 869 736 (first respondent)
Christopher Paul Nicholson (second respondent)
Michael Dolso (third respondent)
Mark Antony Cutts (fourth respondent)Representation: Counsel:
Solicitors:
Mr J T Johnson (applicant)
Mr Prowse (solicitor) (third and fourth respondents)
Mr Addison (solicitor) (second respondent)
O’Neill Partners incorporating Sally Nash & Co (applicant)
DibbsBarker (second respondent)
MCW Lawyers (third and fourth respondents)
File Number(s): 2014/94441
Judgment (ex tempore)
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HIS HONOUR: On 10 February 2015, the Court made orders appointing Mr Vardy receiver and manager of the business and property of the Mecfab Enterprises Trust with the powers given to an administrator under (Cth) Corporations Act 2001, s 437A, for the reason that he had been appointed voluntary administrator of the company Mecfab Holdings Pty Limited which was trustee of that trust and by operation of the trust deed, the trustee company thereupon became a bare trustee and was not entitled to discharge any of the positive functions of the trustee.
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At the second meeting of creditors of the company, the creditors resolved that the administration of the company end. As a consequence, the Court on 13 April 2015 ordered that Mr Vardy's appointment as receiver be discharged, made directions for the provision to unit holders of the trust of a statement of his receipts and payments, and adjourned until today the questions of what if any further account would be required and the fixing of the receiver's remuneration.
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In his affidavit of 27 April 2015, Mr Vardy sets out a statement of his receipts and expenditure as receiver, which discloses receipts of $959,854, payments of $554,827 and cash at bank of $405,025. Mr Vardy’s affidavit states that as at 16 April, cash at bank was only $132,715. The Court has been informed by counsel for the receiver that the apparent discrepancy is explained by the return of the difference to the company following Mr Vardy's discharge. Presumably, that was to the company in its capacity as trustee of the trust, so that it represents a refund to the trust.
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The statement of receipts and expenditure has been provided to each of the unit holders in conformity with the earlier directions of the Court. None lodged any objection to it.
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The receiver has also provided particulars of his claim for remuneration to each of the unit holders. Two of them have, subject to the Court's approval, agreed to the claim, and the third neither consents to nor opposes it.
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The remuneration claimed is $100,000 plus GST. That represents slightly in excess of 10 per cent of the receipts. In circumstances where the unit holders have had an opportunity to object if they wish, and where the majority of them have consented, it seems to me that I should not quibble with the amount claimed. And in circumstances where the unitholders have had an opportunity to raise issues about the statement of receipts and expenditure and have not done so, again it seems to me that it would only incur further costs for little benefit to require any further accounting.
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The Court therefore orders that:
The remuneration of Darren John Vardy as receiver of the Mecfab Enterprises Trust for the period 10 February to 13 April 2015 be approved in the amount of $100,000 exclusive of GST.
The receiver's accounts as set out at page 9 of the affidavit sworn 27 April 2015 and elaborated by the advice to the Court as to the further payment to the company be passed, and any requirement for further accounts be dispensed with.
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Decision last updated: 26 February 2016
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