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Onefone Australia Pty Ltd v One.Tel Ltd

Onefone Australia Pty Ltd v One.Tel Ltd

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CITATION: Onefone Australia Pty Ltd v One.Tel Ltd [2010] NSWSC 1120

HEARING DATE(S): 28/07/10

JUDGMENT DATE :
1 October 2010

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Short minutes to be brought in.

CATCHWORDS: CORPORATIONS - winding up - creditors voluntary winding up - remuneration of liquidator - where process for determination by committee of inspection breaks down - question for court to determine as to quantum of remuneration - delineation of functions attracting remuneration - whether certain activities are within those functions - whether "benefit" test applies - whether "but for" test applies - sufficiency of particulars given to allow court to assess work done - possibility of duplication - onus on liquidator to show proper quantum - onus not discharged - directions for further progress of application

LEGISLATION CITED: Australian Securities and Investments Commission Act 2001, s 30
Corporations Act 2001 (Cth), s 473(10), 499(3), 511, 533, 549(3), 1322

CATEGORY: Principal judgment

CASES CITED: Cordiant Communications (Australia) Pty Ltd v The Communications Group Holdings Pty Ltd [2005] NSWSC 1005; (2005) 194 FLR 322
Deloughery v Weston [2010] NSWCA 148
582 St Kilda Road v Campbell, unreported, VSC,
Lush J, 5 September 1975
Ide v Ide [2004] NSWSC 751; (2004) 184 FLR 44
Magna Alloys and Research Pty Ltd v Coffee (No 2) [1982] VR 97
Onefone Australia Pty Ltd v One.Tel Ltd [2008] NSWSC 1335; (2008) 69 ACSR 290
Onefone Australia Pty Ltd v One.Tel Limited [2010] NSWSC 401; (2010) 78 ACSR 98
Onefone Australia Pty Ltd v One.Tel Ltd [2010] NSWSC 498; (2010) 78 ACSR 163
Re Broad; Smith v Draeger [1901] 2 Ch 86
Re Independent Insurance Co Ltd (No 2) [2003] 1 BCLC 640
Re Stockford Ltd; Korda [2004] FCA 1682; (2004) 52 ACSR 279
Re Walker [2009] NSWSC 1172; (2009) 74 ACSR 616
Slingsby v Attorney-General [1918] P 236
Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96

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

FILE NUMBER(S): SC 2003/86446

COUNSEL: Mr N A Cotman SC/Mr R D Glasson - Special Purpose Liquidator
Ms S Macdonald - Committee of Inspection Members
Mr D L Cook - ASIC - by leave

SOLICITORS: O'Neill Partners Commercial Lawyers - Special Purpose Liquidator
Baker & McKenzie - Committee of Inspection Members

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

FRIDAY, 1 OCTOBER 2010

2003/086446 ONEFONE AUSTRALIA PTY LTD v ONE.TEL LIMITED

JUDGMENT

Background

1 For reasons published on 7 May 2010 (Onefone Australia Pty Ltd v One.Tel Limited [2010] NSWSC 401; (2010) 78 ACSR 98), the then pending application of the special purpose liquidator of One.Tel Ltd with respect to…

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: [2010] NSWSC 1120
Decision Date: 1 October 2010

CaseChat Overview and Summary

The case between Onefone Australia Pty Ltd and One.Tel Ltd was heard in the Federal Court of Australia. Onefone Australia Pty Ltd, the liquidator of One.Tel Ltd, sought a determination of the remuneration due to it for services rendered in the voluntary winding up of One.Tel Ltd. The primary dispute centred on the process of determining the quantum of remuneration, particularly in light of the breakdown in the process for determination by the committee of inspection.

The central legal issues the court had to decide included whether the "benefit" test or the "but for" test should apply in assessing the remuneration. Another issue was whether the particulars provided by the liquidator were sufficient to enable the court to assess the work done and whether there was any duplication in the work claimed. Additionally, the court had to determine the onus of proof regarding the sufficiency of the remuneration claimed and the liquidator's responsibility to demonstrate the proper quantum of remuneration.

The court concluded that the onus was on the liquidator to demonstrate the proper quantum of remuneration. The particulars provided were insufficient to enable the court to assess the work done or to ensure that there was no duplication. The court found that the liquidator had not discharged the onus placed upon it to show that the remuneration claimed was proper. Consequently, the court made directions for the liquidator to take further steps to progress the application for remuneration. The court also indicated that it would apply the "benefit" test to determine the appropriate remuneration.

Orders