Re Alternate Dwellings Pty Ltd (in liquidation) - [2018] VSC 653

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2018 00403

IN THE MATTER of ALTERNATE DWELLINGS PTY LTD (IN LIQUIDATION) (ACN 006 245 307)

PAUL WILLIAM LANGDON AND PETER ROBERT VINCE IN THEIR CAPACITIES AS LIQUIDATORS OF ALTERNATE DWELLINGS PTY LTD (IN LIQUIDATION) (ACN 006 245 307)	Plaintiff
v
ALTERNATE DWELLINGS PTY LTD (IN LIQUIDATION) (ACN 006 245 307)	Defendant

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JUDICIAL REGISTRAR:	Matthews JR
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	1 November 2018
CASE MAY BE CITED AS:	Re Alternate Dwellings Pty Ltd (in liquidation)
MEDIUM NEUTRAL CITATION:	[2018] VSC 653

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CORPORATIONS – External administration – Application by former administrators and current liquidators for determination of remuneration pursuant to ss 449E(1)(c) and 473(3)(b) of the Corporations Act 2001 (Cth) – Consideration of transitional provisions in respect of the new Insolvency Practice Schedule (Corporations) as Schedule 2 to the Corporations Act 2001 (Cth) – Remuneration approved, with minor adjustments.

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NOTE: The plaintiff has served all parties required to be served with notice of the intention to make this application and no such party appeared to oppose or contradict it. In such circumstances and in light of the provisions of r 9.2 of the Supreme Court (Corporations) Rules 2013, it was considered appropriate to deal with the application in the absence of the public and without the necessity for the plaintiff to attend at Court.

JUDICIAL REGISTRAR MATTHEWS:

Introduction
Nature of the application and material relied upon

The Plaintiffs, Paul William Langdon and Peter Robert Vince, were appointed as administrators of the defendant, Alternate Dwellings Pty Ltd (in liquidation) (‘Company’) on 21 October 2016, pursuant to s 436A of the Corporations Act 2001 (Cth) (‘Act’).[1] On 29 November 2016, the Plaintiffs were appointed liquidators of the Company pursuant to a resolution of creditors at the second meeting of creditors and s 439C of the Act. I shall refer to Mr Langdon and Mr Vince as the Plaintiffs in these reasons, except where it is necessary to distinguish between their roles as administrators and liquidators, where I will refer to them as the Administrators or the Liquidators, as the case may be.
[1]Affidavit of Paul William Langdon sworn 28 May 2018, [5]; Exhibits PWL-1 - PWL-2.

By originating process issued 18 July 2018 and as amended on 2 October 2018, the Plaintiffs apply, under ss 449E(1) and 473(3)(b)(ii) of the Act and r 9.2 of the Supreme Court (Corporations) Rules 2013 (‘Rules’), for the approval of their remuneration in relation to the:

(a) administration of the Company for the period 21 October 2016 to 29 November 2016 (‘Administration Period’) in the amount of $128,269.16 (including GST) (‘Administration Fees Application’); and

(b) liquidation of the Company for the period since 5 October 2017 in the amount of $55,136.40 (including GST) (‘Liquidation Fees Application’).

The applications are supported by three affidavits from Mr Langdon sworn…

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: [2018] VSC 653
Decision Date: 1 November 2018

CaseChat Overview and Summary

In the Supreme Court of Victoria, the plaintiffs, Paul William Langdon and Peter Robert Vince, applied for the approval of their remuneration in relation to the administration and liquidation of Alternate Dwellings Pty Ltd (the Company). The application was made pursuant to s 449E(1)(c) and s 473(3)(b)(ii) of the Corporations Act 2001 (Cth) and r 9.2 of the Supreme Court (Corporations) Rules 2013. The Court was satisfied that the plaintiffs had made out a prima facie case that the remuneration claimed was fair and reasonable, and the work performed and to be performed was reasonably necessary. The Court was satisfied that the amount of remuneration claimed was reasonable, taking into account the complexity of the work performed and the time taken to perform the tasks. However, the Court reduced the amount claimed by $4,000 for legal costs, bringing the total approved remuneration to $123,389.56 (including GST) for the administration period and $49,804.70 (including GST) for the liquidation period. The Court approved the plaintiffs’ remuneration in the amounts specified.

Orders