SUPREME COURT OF QUEENSLAND
CITATION:
Park & Muller (liquidators of LM Investment Management Ltd) v Whyte No 2 [2017] QSC 229
PARTIES:
JOHN RICHARD PARK AND GINETTE DAWN MULLER AS LIQUIDATORS OF LM INVESTMENT MANAGEMENT LTD (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED) ACN 077 208 461 THE RESPONSIBLE ENTITY OF THE LM FIRST MORTGAGE INCOME FUND ARSN 089 343 288
(first applicants)
AND
LM INVESTMENT MANAGEMENT LIMITED (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED) ACN 077 208 461 THE RESPONSIBLE ENTITY OF THE LM FIRST MORTGAGE INCOME FUND ARSN 089 343 288
(second applicant)AND
DAVID WHYTE AS THE PERSON APPOINTED TO SUPERVISE THE WINDING UP OF THE LM FIRST MORTGAGE INCOME FUND ARSN 089 343 288
(respondent)
FILE NO/S:
BS3508/15
DIVISION:
Trial Division
PROCEEDING:
Application
DELIVERED ON:
17 October 2017
DELIVERED AT:
Brisbane
HEARING DATE:
22 & 26 February and 14 March 2016 and further submissions received on 27 June 2016.
JUDGE:
Jackson J
ORDER:
The order of the court is that:
1. The first applicants and the respondent may submit a draft order in an agreed amount in accordance with these reasons as to the first applicants’ entitlement to be paid from the LM First Mortgage Income Fund (“FMIF”) for remuneration as administrators of the second applicant.
2. If the parties are unable to reach agreement under paragraph 1 two business days before 22 November 2017, the matter is relisted on that date for further hearing or directions.
3. The first applicants are entitled to be paid the sum of $120,057.14 (plus GST) from the scheme property of the LM Australian Income Fund (“AIF”) for remuneration and expenses as administrators of the second applicant.
4. The first applicants are entitled to be paid the sum of $4,569.76 (plus GST) from the scheme property of the LM Australian Structured Products Fund (“ASPF”) for remuneration and expenses as administrators of the second applicant.
5. The first applicants are entitled to be paid the sum of $4,022.30 (plus GST) from the scheme property of the LM Cash Performance Fund (“CPF”) for remuneration and expenses as administrators of the second applicant.
6. The first applicants are entitled to be paid the sum of $9,152.70 (plus GST) from the scheme property of the LM Currency Protected Australian Income Fund (“CP-AIF”) for remuneration and expenses as administrators of the second applicant.
7. The first applicants are entitled to be paid the sum of $3,101.78 (plus GST) from the scheme property of the LM Institutional Currency Protected Australian Income Fund (“ICP-AIF”) for remuneration and expenses as administrators of the second applicant.
8. The first applicants are entitled to be paid the sum of $550,526.22 from the respective scheme property of the funds referred to in paragraphs 1 and 3 to 5.
9. The first applicants’ entitlement under paragraph 8 should be divided equally among the funds referred to in paragraphs 1 and 3 to 5 and the Managed Performance Fund until 12 April 2013 and thereafter equally among the funds referred to in paragraphs 1 and…
Continue reading Park v Whyte (No 2)
Sign in free to access the full text
- AGLC
- Park v Whyte (No 2) [2017] QSC 229
- Case
- [2017] QSC 229
- Decision Date
CaseChat Overview and Summary
The court held that the respondents were entitled to be paid from the trust property of the investment schemes for the services they provided as administrators and liquidators. The court reasoned that the statutory provisions governing managed investment schemes required the responsible entity to ensure that the schemes were wound up in accordance with their constitutions and relevant laws, and this necessarily included paying the costs of doing so. The court further held that the remuneration and expenses claimed by the respondents were reasonable and necessary, and that there were no grounds to reduce the amounts claimed. The court directed the parties to agree on the amounts to be paid or, failing agreement, to relist the matter for further hearing or directions.
The final orders of the court specified the amounts to be paid to the respondents from the trust property of the various investment schemes, both as administrators and liquidators, and provided for the submission of draft orders and submissions on costs. The court also provided for a final hearing to address any outstanding matters, including costs, on 22 November 2017.
Orders
Orders of the court
The order of the court is that:
1. The first applicants and the respondent may submit a draft order in an agreed amount in accordance with these reasons as to the first applicants’ entitlement to be paid from the LM First Mortgage Income Fund (“FMIF”) for remuneration as administrators of the second applicant.
2. If the parties are unable to reach agreement under paragraph 1 two business days before 22 November 2017, the matter is relisted on that date for further hearing or directions.
3. The first applicants are entitled to be paid the sum of $120,057.14 (plus GST) from the scheme property of the LM Australian Income Fund (“AIF”) for remuneration and expenses as administrators of the second applicant.
4. The first applicants are entitled to be paid the sum of $4,569.76 (plus GST) from the scheme property of the LM Australian Structured Products Fund (“ASPF”) for remuneration and expenses as administrators of the second applicant.
5. The first applicants are entitled to be paid the sum of $4,022.30 (plus GST) from the scheme property of the LM Cash Performance Fund (“CPF”) for remuneration and expenses as administrators of the second applicant.
6. The first applicants are entitled to be paid the sum of $9,152.70 (plus GST) from the scheme property of the LM Currency Protected Australian Income Fund (“CP-AIF”) for remuneration and expenses as administrators of the second applicant.
7. The first applicants are entitled to be paid the sum of $3,101.78 (plus GST) from the scheme property of the LM Institutional Currency Protected Australian Income Fund (“ICP-AIF”) for remuneration and expenses as administrators of the second applicant.
8. The first applicants are entitled to be paid the sum of $550,526.22 from the respective scheme property of the funds referred to in paragraphs 1 and 3 to 5.
9. The first applicants’ entitlement under paragraph 8 should be divided equally among the funds referred to in paragraphs 1 and 3 to 5 and the Managed Performance Fund until 12 April 2013 and thereafter equally among the funds referred to in paragraphs 1 and 3 to 5.
10. The first applicants submit a draft order two business days before 22 November 2017 in an amount in accordance with these reasons fixing the first applicants’ entitlement for remuneration as liquidators of the second applicant.
11. The first applicants and the respondent may submit a draft order in an agreed amount in accordance with these reasons as to the first applicants’ entitlement to be paid from the LM First Mortgage Income Fund (“FMIF”) for remuneration as liquidators of the second applicant.
12. If the first applicants and the respondent are unable to reach agreement as to paragraph 11 two business days before 22 November 2017, the matter is relisted on that date for further hearing or directions.
13. The first applicants are entitled to be paid the sum of $499,622.96 (plus GST) from the scheme property of the LM Australian Income Fund (“AIF”) for remuneration and expenses as liquidators of the second applicant.
14. The first applicants are entitled to be paid the sum of $4,569.76 (plus GST) from the scheme property of the LM Australian Structured Products Fund (“ASPF”) for remuneration and expenses as administrators of the second applicant.
15. The first applicants are entitled to be paid the sum of $119,583.61 (plus GST) from the scheme property of the LM Cash Performance Fund (“CPF”) for remuneration and expenses as liquidators of the second applicant.
16. The first applicants are entitled to be paid the sum of $82,583.83 (plus GST) from the scheme property of the LM Currency Protected Australian Income Fund (“CP-AIF”) for remuneration and expenses as liquidators of the second applicant.
17. The first applicants are entitled to be paid the sum of $29,621.37 (plus GST) from the scheme property of the LM Institutional Currency Protected Australian Income Fund (“ICP-AIF”) for remuneration and expenses as liquidators of the second applicant.
18. The first applicants are entitled to be paid the sum of $651,438 from the respective scheme property of the funds referred to in paragraphs 11 and 13 to 15 for remuneration as the liquidators of the second applicant.
19. The first applicants’ entitlement under paragraph 18 should be divided equally among the funds referred to in paragraphs 11 and 13 to 15.
20. The first applicants and the respondent may submit a draft order in an agreed amount in accordance with these reasons as to the first applicants’ entitlement to be paid from the LM First Mortgage Income Fund (“FMIF”) for expenses as administrators of the second applicant.
21. If the parties are unable to reach agreement under paragraph 20 two business days before 22 November 2017, the matter is relisted on that date for further hearing or directions.
22. The first applicants and the respondent may submit a draft order in an agreed amount in accordance with these reasons as to the first applicants’ entitlement to be paid from the LM First Mortgage Income Fund (“FMIF”) for expenses as liquidators of the second applicant.
23. If the parties are unable to reach agreement under paragraph 22 two business days before 22 November 2017, the matter is relisted on that date for further hearing or directions.
24. The parties should exchange submissions on costs two business days before 22 November 2017.
25. The question of costs and any outstanding matters under these orders be heard on 22 November 2017 at 10 am.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.