Niardone v Clubb (No 2)

FEDERAL COURT OF AUSTRALIA

Niardone v Clubb (No 2) [2021] FCA 54

File number:

WAD 7 of 2021

Judgment of:

COLVIN J

Date of judgment:

2 February 2021

Catchwords:

CORPORATIONS - application by administrators for orders fixing remuneration - where orders made for administration to end on identified date - orders made in terms of proposed orders

Legislation:

Corporations Act 2001 (Cth) s 447A, Part 5.3A, Schedule 2 (Insolvency Practice Schedule (Corporations)) Division 60

Cases cited:

Commonwealth Bank of Australia v Fernandez [2010] FCA 1487

Niardone v Clubb [2021] FCA 14

Division:

General Division

Registry:

Western Australia

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Number of paragraphs:

7

Date of last submissions:

29 January 2021 (First Respondent)

Date of hearing:

Determined on the papers

Counsel for the Applicants:

Mr AJ Papamatheos

Solicitor for the Applicants:

Tottle Partners

Counsel for the First Respondent:

Mr JR Anderson

Solicitor for the First Respondent:

Allen & Overy

Counsel for the Second Respondent:

The Second Respondent did not appear

Counsel for the Third Respondents:

The Third Respondent did not appear

ORDERS

WAD 7 of 2021

BETWEEN:

PAUL CLEMENT NIARDONE

First Applicant

ADAM STUART DAVEY

Second Applicant

ANDREW PAUL JENSEN

Third Applicant

MATTHEW JOSEPH LAHOOD

Fourth Applicant

AND:

DUNCAN EDWARD CLUBB AND ANDREW THOMAS SALLWAY

First Respondent

MCL 105 PTY LTD (ACN 638 967 218)

Second Respondent

THE AGENCY GROUP AUSTRALIA LTD (ACN 118 913 232)

Third Respondent

ORDER MADE BY:	COLVIN J
DATE OF ORDER:	29 JANUARY 2021

THE COURT ORDERS THAT:

1.The first respondents be granted leave to file in Court an interlocutory process dated 29 January 2021 and the affidavit of Duncan Edward Clubb sworn on 29 January 2021, subject to the undertaking of the solicitors for the first respondents to pay the applicable filing fees.

2.The interlocutory process be returnable instanter.

3.Pursuant to s 447A of the Corporations Act 2001 (Cth) (Act), Part 5.3A of that Act operate in relation to the third respondent, The Agency Group Australia Ltd (administrators appointed), such that the remuneration of the first respondents, Andrew Thomas Sallway and Duncan Edward Clubb, as external administrators of the third respondent for the period 18 January 2021 up to and including 1 February 2021, be fixed in the amount of $14,323 (plus GST, if applicable) and paid from the assets of the third respondent.

4.Costs of this interlocutory process be costs in the first respondents' external administration of the third respondent, such costs to be paid from the assets of the third respondent.

THE COURT NOTES THAT the third respondent reserves its position as to any application to seek to recover from any other person the costs of the administrators the subject of these orders.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1. On 18 January 2021, administrators were appointed to The Agency Group Australia Ltd (The Agency) by MCL 105 Pty Ltd (MCL) on the basis…