Re Aus Streaming Ltd (in liq) - [2022] VSC 182

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

CORPORATIONS LIST

S ECI 2021 04513

IN THE MATTER of AUS STREAMING LIMITED (IN LIQUIDATION) (ACN 600 577 348)

BETWEEN:

CRAIG CROSBIE AND DANIEL WALLEY IN THEIR CAPACITIES AS SPECIAL PURPOSE LIQUIDATORS OF AUS STREAMING LIMITED (IN LIQUIDATION) (ACN 600 577 348)	Plaintiffs
v
AUS STREAMING LIMITED (IN LIQUIDATION) (ACN 600 577 348)	Defendant

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JUDGE:	Hetyey AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	4, 25 February 2022, 8 April 2022
DATE OF JUDGMENT:	8 April 2022 (given ex tempore, revised)
CASE MAY BE CITED AS:	Re Aus Streaming Ltd (in liq)
MEDIUM NEUTRAL CITATION:	[2022] VSC 182

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CORPORATIONS – External administration – Application by special purpose liquidators for approval of remuneration – Applicability of s 60-10 of the Insolvency Practice Schedule (Schedule 2 to the Corporations Act 2001 (Cth)) – s 50-20 of Practice Schedule – Whether special purpose liquidator an ‘external administrator’ – Consideration of factors set out in s 60‑12 of Practice Schedule – Incidental orders for expenses and costs – Where part of remuneration claimed already remitted pursuant to funding agreement — Remuneration ultimately approved with slight discount — Treatment of expenses and legal costs of application — s 90‑15 of Practice Schedule.

CORPORATIONS — Supreme Court (Corporations) Rules 2013 (Vic) — r 9.2(2) — Requirements for notice of remuneration application — Direction under r 1.8 that notice requirements be complied with by modified notice regime.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Kohn	Johnson Winter & Slattery

TABLE OF CONTENTS

Background......................................................................................................................................... 1

Material relied upon.......................................................................................................................... 2

Procedural history......................................................................................................................... 3
Requirement for notice to interested persons................................................................. 4

Statutory provisions.......................................................................................................................... 7

Application of s 60-10(1)(c) of the IPS to remuneration of special purpose liquidators...... 9

Applicable principles for assessment of the remuneration claim.......................................... 11

General rulings regarding remuneration claim......................................................................... 11

Method of calculating remuneration.............................................................................. 11
Extent to which work was necessary and properly performed, quality of work performed (s 60-12(a) and s 60-12(d)) and applicable rates.................................................... 12
Complexity of work performed (s 60-12(e)).................................................................. 12

Application of rulings to remuneration claimed and treatment of expenses and costs.... 14

ANNEXURE – Orders to the judgment....................................................................................... 16

HIS HONOUR:

This matter concerns an application by Craig Crosbie and Daniel Walley as special purpose liquidators of Aus Streaming Limited (In Liquidation) (‘the Company’ and ‘the SPLs’, respectively) for a determination that they are entitled to remuneration in relation to work completed during the period between 1 June 2020 and 28 July 2021 (‘the Period’) for the sum of $197,353.50 (exclusive of GST) plus disbursements in the sum of $741.01 (exclusive of GST).

Background

The SPLs were appointed on 27 May 2020 pursuant to orders made by Connock J in proceeding S ECI 2020 01581 (‘the Orders’). The circumstances of the appointment are more fully described in the judgment of Connock J of In the matter of Aus Streaming (In Liq)[1]. Those circumstances included:
[1][2020] VSC…

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.

Continue reading Re Aus Streaming Ltd (in liq)

Details

AGLC: Re Aus Streaming Ltd (in liq) [2022] VSC 182
Case: [2022] VSC 182
Decision Date: 8 April 2022 (given ex tempore, revised)

CaseChat Overview and Summary

Re Aus Streaming Ltd (in liq) presented a case where the special purpose liquidators sought approval for their remuneration from the Supreme Court. The liquidators applied for the approval under the Corporations Act 2001 (Cth) and the Insolvency Practice Schedule (Schedule 2). The central issue was whether the special purpose liquidators qualified as 'external administrators' for the purposes of section 60-10 of the Practice Schedule, which governs the remuneration of liquidators. The court also had to consider whether the liquidators' claim for expenses and costs were appropriate under section 90-15 of the Practice Schedule.

The court examined the statutory framework and relevant case law to determine the eligibility of the special purpose liquidators as 'external administrators'. It found that the liquidators were indeed external administrators, and thus, section 60-10 applied. The court then considered the factors outlined in section 60-12 of the Practice Schedule, which include the complexity of the administration, the efforts of the liquidators, and the results achieved. The court applied these factors and assessed the liquidators' performance, ultimately approving their remuneration with a slight discount. Regarding the expenses and legal costs associated with the application, the court ruled that these should be treated in accordance with section 90-15 of the Practice Schedule, which provides that the costs of the application itself should be borne by the applicant.

The court concluded by approving the liquidators' remuneration with a discount and directed that the expenses and legal costs of the application be borne by the liquidators. This decision ensures that the liquidators receive fair compensation for their work while also maintaining the integrity of the external administration process.

Orders