Re Application of Sutherland

Case [2004] NSWSC 798


Reported Decision:

50 ACSR 297
(2004) 22 ACLC 1326

Supreme Court


CITATION: Application of Sutherland [2004] NSWSC 798
HEARING DATE(S): 23 August 2004
JUDGMENT DATE:
23 August 2004
JURISDICTION:
Equity
JUDGMENT OF: Campbell J
DECISION: Remuneration allowed. Procedure for fixing remuneration laid down.
CATCHWORDS: TRUSTS - trustee goes into administration, then into liquidation - first administrator, then liquidator, does work in administering trusts - basis on which administrator and liquidator remunerated for work in administering trust assets - TRUSTS - inherent jurisdiction of court to permit remuneration of trustee - extends to permit remuneration of person in practical control of corporate trustee - CORPORATIONS - administration and winding up - administrator and liquidator do work in administering trusts of which company is trustee - basis for remuneration of administrator and liquidator - procedure for fixing amount of remuneration which is reasonable and proper
LEGISLATION CITED: Corporations Act 2001 (Cth)
CASES CITED: 13 Coromandel Place Pty Ltd v C L Custodian Pty Ltd (in liq) (1999) 30 ACSR 377
In re Berkeley Applegate (Investment Consultants) Ltd (In liquidation)
Boardman v Phipps [1967] 2 AC 46
Clutha v Millar (No 5) (2002) 43 ACSR 295; (2003) 21 ACLC 1; [2002] NSW SC 833
Re Cox's Will (1890) 11 LR (NSW) Eq 124
In Re Duke of Norfok's Settlement Trusts; Perth (Earl) v Fitzalan-Howard [1982] Ch 61
Re Eastern Capital Futures LTB (1989) 5 BCLC 223
In re Freeman's Settlement Trusts (1887) 37 Ch D 148
Re French Caledonia Travel [2003] NSWSC 1008; (2003) 48 ACSR 97; (2003) 204 ALR 353; (2003) ACLC 498
re G B Nathan & Co Pty Ltd (In Liq) (1991) 24 NSWLR 674
Harris v Conway [1989] 1 Ch 32
In re Jarvis, decd; Edge v Jarvis [1958] 1 WLR 815
Johnston v Johnston (1903) 4 SR (NSW) 8
In Re Keeler's Settlement Trusts [1981] 1 Ch 156
Marshall v Holloway (1820) 2 Swans 432
In Re Masters, decd [1953] 1 WLR
Nissen v Grunden (1912) 14 CLR 297
Plomley v Shepherd (1896) 17 LR (NSW) Eq 215
Richardson v Allen (1870) 10 SCR (Eq) 1
Re White; Tweedie v Attorney-General (2003) 7 VR 219
In Re Worthington, decd; Leighton v MacLeod [1954] 1 WLR 526

PARTIES :

Roderick Mackay Sutherland - First Applicant
French Caledonia Travel Service Pty Limited (in liquidation) - Second Applicant
FILE NUMBER(S): SC 3173/02
COUNSEL: S Golledge, solicitor - First Applicant
SOLICITORS: The Argyle Partnership - First Applicant

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

CAMPBELL J

MONDAY 23 AUGUST 2004

3173/02 APPLICATION OF RODERICK MACKAY SUTHERLAND

JUDGMENT – Ex Tempore; revised 30 August 2004

1 HIS HONOUR: I delivered judgment in this matter on 24 November 2003: Re French Caledonia Travel [2003] NSWSC 1008; (2003) 48 ACSR 97; (2003) 204 ALR 353; (2003) 22 ACLC 498. The problems dealt with in the judgment all related to the administration of two trust funds held by a company which was…

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AGLC
Re Application of Sutherland [2004] NSWSC 798
Case
[2004] NSWSC 798
Decision Date

CaseChat Overview and Summary

The case involves an application by Sutherland, the liquidator of a company, for an order permitting the remuneration of the first administrator and the liquidator for their work in administering trust assets. The dispute arose in the context of the company going into administration and subsequently liquidation, and the court was required to determine the legal basis on which the administrator and liquidator could be remunerated for their work in administering the trusts. The matter was heard in the Federal Court of Australia.

The key legal issues that the court needed to resolve included whether the inherent jurisdiction of the court to permit remuneration of a trustee extends to a person in practical control of a corporate trustee, and the appropriate basis for remuneration of the administrator and liquidator. Additionally, the court had to consider the procedure for fixing the amount of remuneration that is reasonable and proper. The court examined relevant case law and statutory provisions to address these issues.

In reaching its decision, the court held that the inherent jurisdiction of the court to permit remuneration of a trustee extends to a person in practical control of a corporate trustee. The court also determined that the basis for remuneration of the administrator and liquidator should be aligned with the principles applicable to the remuneration of trustees. The court further outlined the procedure for fixing the amount of remuneration, emphasising the need for transparency, fairness, and adherence to relevant statutory guidelines. The court's decision provided clarity on the legal framework governing the remuneration of administrators and liquidators in the context of administering trusts.

The final orders of the court included the approval of the remuneration of the first administrator and the liquidator for their work in administering the trust assets, subject to the principles and procedures outlined in the judgment. The court emphasised the importance of ensuring that the remuneration is reasonable and proper, taking into account the nature and extent of the work performed and the statutory guidelines applicable to the administration and winding up of the company.

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Background to the litigation

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