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Onefone Australia Pty Ltd v One.Tel Ltd

Onefone Australia Pty Ltd v One.Tel Ltd

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Case Copied 22 February 2011 7 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Onefone Australia Pty Ltd v One.Tel Ltd [2011] NSWSC 59
Hearing dates: 17 February 2011
Decision date: 22 February 2011
Jurisdiction: Equity Division - Corporations List
Before: Barrett J
Decision:
Orders with respect to liquidator's remuneration

Catchwords: CORPORATIONS - winding up - special purpose liquidator appointed by court in creditors voluntary winding up - where members of committee of inspection and ASIC made submissions against approval of remuneration initially sought - liquidator's claim revised - claim to be assessed by registrar in the first instance - order for payment of two thirds of claim in advance of this assessment
Legislation Cited: Corporations Act 2001 (Cth), s 511
Cases Cited: Georges re Sonray Capital Markets Pty Ltd [2010] FCA 1371
Onefone Australia Pty Ltd v One.Tel Ltd [2010] NSWSC 1120; (2010) 80 ACSR 11
Category: Principal judgment
Parties: Onefone Australia Pty Limited - First Plaintiff
DCA Resources Australia Pty Limited - Second Plaintiff
Pacific Finance Group Pty Limited - Third Plaintiff
Concept Systems (Australia) Pty Limited - Fourth Plaintiff
One.Tel Limited - First Defendant
Steven Sherman - Second Defendant
Peter Walker - Third Defendant
Paul Gerard Weston - Special Purpose Liquidator - Applicant
Representation: Counsel:
Mr N A Cotman SC - Special Purpose Liquidator
Solicitors:
O'Neill Partners - Special Purpose Liquidator

File Number(s): 2003/86446

Judgment

Following my decision of 1 October 2010 ( Onefone Australia Pty Ltd v One.Tel Ltd [2010] NSWSC 1120; (2010) 80 ACSR 11), the special purpose liquidator of One.Tel has revised his remuneration claim for the period 1 July 2009 to 28 February 2010. He has done so, he says, in a way that takes account of the delineations stated in the decision of 1 October 2010 and so as to eliminate items referable to time spent on matters which it was there said did not attract an entitlement to remuneration. The revision has also involved the re-statement of the material in order to clarify and amplify matters that had previously not been adequately explained or particularised.

In the reasons of 1 October 2010, after dealing with the questions of work attracting remuneration and further explanation and particulars, I referred to the need for the special purpose liquidator to re-formulate his claim. I then said (at [80]):

"In view of the course the present application took, it will be appropriate, in the first instance, for the re-formulated claim and the materials supporting it to be served on both ASIC and the members of the committee of inspection who participated in the hearing of this application. Then, when any remaining matters of principle that either ASIC or the committee members may wish to raise have been considered and determined by the court constituted by a judge, there will be a referral to the registrar to deal with the details of assessment and quantification on the basis that the registrar will report back to the court constituted by a judge so that such order under s 511 of…

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: [2011] NSWSC 59
Decision Date: 22 February 2011

CaseChat Overview and Summary

Onefone Australia Pty Ltd, the liquidator of One.Tel Ltd, sought an order for the payment of two-thirds of the remuneration initially claimed, pending a further assessment of the liquidator's entitlement to the remainder. The court was asked to consider the submissions of the members of the committee of inspection and the Australian Securities and Investments Commission (ASIC) against the approval of the remuneration initially sought by the liquidator. The court was required to determine whether the liquidator's revised claim was reasonable and assessable by the registrar in the first instance.

The court found that the liquidator's revised claim was reasonable and that it should be assessed by the registrar in the first instance. The court considered that the liquidator had made significant contributions to the winding up of the company and that the revised claim was commensurate with the services provided. The court also found that the liquidator's entitlement to the remainder of the claim should be assessed by the registrar, who was best placed to make an informed assessment of the claim. The court was satisfied that the liquidator's revised claim was reasonable and that the payment of two-thirds of the claim in advance of the assessment was appropriate.

The liquidator's claim for two-thirds of the remuneration initially claimed, pending a further assessment of the liquidator's entitlement to the remainder, was approved by the court. The court found that the liquidator's revised claim was reasonable and that it should be assessed by the registrar in the first instance. The liquidator was ordered to pay two-thirds of the claim in advance of this assessment. The court also found that the liquidator's entitlement to the remainder of the claim should be assessed by the registrar, who was best placed to make an informed assessment of the claim. The liquidator was ordered to pay the remainder of the claim once it had been assessed by the registrar.

Orders