Lucantonio v Benscrape Pty Ltd (No 2) - [2020] NSWSC 1114

Supreme Court

New South Wales

Medium Neutral Citation: Lucantonio v Benscrape Pty Ltd (No 2) [2020] NSWSC 1114
Hearing dates: 20 August 2020
Date of orders: 20 and 21 August 2020
Decision date: 21 August 2020
Jurisdiction: Equity
Before: Williams J
Decision:
Receiver’s remuneration for the period after 14 August 2020 is approved in a sum not exceeding $21,991.75. Receiver is authorised to pay internal disbursements charged by the Receiver’s firm out of the assets. Receiver’s appointment is terminated in respect of certain assets, but continues in relation to funds in an operating account to facilitate further work necessary to bring the receivership to an orderly conclusion. Receiver’s legal costs of and incidental to the application fixed in the sum of $36,174.00.

Catchwords:
RECEIVERS AND MANAGERS – Court-appointed receivers – remuneration – approval of remuneration – remuneration for work already performed – work performed on a time-charge basis – whether the amount of remuneration claimed, based on hourly rates, is fair and reasonable – remuneration approved
RECEIVERS AND MANAGERS – Court-appointed receivers – remuneration – approval of remuneration – remuneration for work to be performed in the future – where it is necessary for the receiver to perform future work in respect of the partnership, including lodging tax returns – whether proposed remuneration for future work is fair and reasonable – remuneration for future work approved in a fixed sum
RECEIVERS AND MANAGERS – Court-appointed receivers – termination of receivership – where receivership is proposed to be terminated but it is necessary for the receiver to perform limited future work, including lodging tax returns – receivership terminated except to the limited extent that the receiver has control over a particular operating bank account
EQUITY – remedies – declarations – whether it is appropriate to make a declaration as to the existence of matters of mere fact – where no evidence of the underlying basis for the declaration sought – declaration refused

Legislation Cited:
Corporations Act 2001 (Cth), s 420
Income Tax Assessment Act 1936 (Cth), s 254
Uniform Civil Procedure Rules 2005 (NSW), r 26.4

Cases Cited:
Australian Securities and Investments Commission vLawrenson Light Metal Die Casting Pty Ltd (1999) 158 FLR 307; [1999] VSC 500
Banning v Lean (No 3) (2019) 54 WAR 259; [2019] WASCA 30
HN QCV Bottle Tree Village Pty Ltd v QCV Bottle Tree Village Pty Ltd (No 2) [2019] NSWSC 433
In the matter of Sakr Nominees Pty Ltd [2017] NSWSC 668
Macquarie Bank Ltd v Two Eagles Pty Ltd [2014] NSWSC 367
Re Beverage Freight Services Pty Ltd [2020] NSWSC 797
Re Gondon Give Pty Ltd and Cui Family Asset Management Pty Ltd [2019] NSWSC 469
Re J & Lee Property Investment Group Pty Ltd (in liq) [2019] NSWSC 927
Re Jackgreen(International) Pty Ltd [2010] NSWSC 817
Re Say Enterprises Pty Ltd [2018] NSWSC 396
Shirlaw v Taylor (1991) 31 FCR 222; [1991] FCA 415
Sutton v NRS(J) Pty Ltd [2020] NSWSC 826

Texts Cited:
T Robinson and…

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

Case: [2020] NSWSC 1114
Decision Date: 21 August 2020

CaseChat Overview and Summary

In Lucantonio v Benscrape Pty Ltd (No 2), the parties were involved in a dispute concerning the remuneration of court-appointed receivers. The matter was heard by the Federal Court of Australia. The primary focus was on the approval of the receivers' fees, both for work already completed and for future services. The dispute arose from the receivers' claim for their fees, which were calculated on an hourly basis for the work completed, and a fixed sum for the anticipated future work, including the lodging of tax returns.

The court was required to determine whether the amount of remuneration claimed, based on the hourly rates for work already performed, was fair and reasonable. Additionally, it had to assess if the proposed fixed sum for future work was justified. The court needed to ensure that the receivers' remuneration was commensurate with the services rendered and that it did not exceed what could be considered fair and reasonable under the circumstances.

In its reasoning, the court found that the receivers' hourly rates for work already performed were fair and reasonable, and therefore approved the claimed remuneration. Regarding the future work, the court considered it necessary for the receivers to continue to manage the partnership's affairs, including the lodging of tax returns. The court determined that the proposed fixed sum for these future services was fair and reasonable, and it approved this amount. The court also ruled that the receivership should be terminated except to the limited extent that the receiver has control over a particular operating bank account.

The court's final order was to approve the receivers' remuneration for work already performed and for the limited future work required. It also terminated the receivership except for the specific control over the bank account. The court refused to make a declaration as to the existence of certain factual matters, as there was no evidence to support the claims.

Orders