Re Golden Prosperity Pty Ltd (In Liq)
[2021] VSC 13
•22 January 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST
S CI 2015 03810
| CRAIG RUSSELL WALDOCK | Plaintiff |
| v | |
| KEITH SUTHERLAND and MICHEAL QUIN (AS LIQUIDATORS OF GOLDEN PROSPERITY PTY LTD (IN LIQ)) | Defendant |
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JUDICIAL REGISTRAR: | Irving JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 December 2020 |
DATE OF JUDGMENT: | 22 January 2021 |
CASE MAY BE CITED AS: | Re Golden Prosperity Pty Ltd (In Liq) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 13 |
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CORPORATIONS – Winding up – Corporations Act 2001 (Cth) – Section 482(1) – Termination of winding up – Where events leading to winding up have been explained and unsecured creditors paid out – Where company is a property holding company and mortgagee to property does not oppose termination of winding up – Where company has no debts due and payable – Where assets of company are sufficient to meet potential creditors’ claims – Where no reason for control not to be returned to former director – Application allowed.
CORPORATIONS – External administration – Corporations Act 2001 (Cth) – Remuneration application – Where the “old Act” applies – Where notice has not been provided to unsecured creditors – Where increase sought and explained – Application allowed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Z Partos | Vinci Solictors |
| For the Defendant | Maddocks |
JUDICIAL REGISTRAR IRVING:
On 11 September 2020 Craig Russell Waldock applied for an order under s 482 of the Corporation Act 2001 (Cth) (the Act) terminating the winding up of Golden Prosperity Pty Ltd (Golden Prosperity).
Golden Prosperity was incorporated on 11 June 2003 as the trustee of the Noble Prosperity Settlement Trust (the Trust), a discretionary trust of which Mr Waldock and his wife are the appointors. Golden Prosperity never traded but held various properties on trust as well as plant and equipment.
On 16 and 22 December 2020, I made orders terminating the winding up of Golden Prosperity and for the remuneration of its Liquidators. At the time of making those orders, I indicated to the parties that I intended to publish short reasons for making those orders. These are those reasons.
On 9 September 2015, Associate Justice Randall ordered that Golden Prosperity be wound up in insolvency. Keith Sutherland and Michael Quin (the Liquidators) were jointly and severally appointed liquidators for the purposes of the winding up.
The application for the winding up order was based on a debt as at 20 April 2015 of $95,987.07 owed to the Deputy Commissioner of Taxation. The debt was a GST liability determined by the Deputy Commissioner to have accrued from an arrangement between Golden Prosperity and another of Mr Waldock’s companies under which the second company would use or lease Golden Prosperity’s equipment.
Following the making of the winding up order Golden Prosperity reached an agreement with the Deputy Commissioner whereby the general interest charge was withdrawn and, on 4 September 2016, the remaining debt was paid in full.
Golden Prosperity’s only remaining asset is its sole proprietorship of Mr Waldock’s matrimonial home in Lovely Banks, Victoria (the Property) where he lives with his wife and daughter. Golden Prosperity holds this property as trustee of the Trust.
The Property is subject to an interest only mortgage to Clarke & Barwood Lawyers Colac Ltd in the amount of $650,000. The mortgage is Golden Prosperity’s only liability. Mr Waldock has and continues to make quarterly mortgage payments and the mortgage is not in default. The mortgagee has confirmed in writing to the liquidators that the mortgage is not in default and that the mortgagee consents to the winding up order being set aside. The current value of the property is estimated to be in the vicinity of $1.4 million.
Mr Waldock was the sole director, secretary and shareholder of Golden Prosperity immediately before its winding up. Mr Waldock deposes that if the winding up order is terminated, he has no intention to permit Golden Prosperity to trade. Mr Waldock also deposes that he will continue to service the mortgage through income he earns as a project manager under a contract with Geelong Baptist College. Mr Waldock has provided evidence that the current contract is in place until at least June 2023.
On 29 September 2020 the Liquidators filed a notice of appearance in the application. The Liquidators rely on Mr Quin’s affidavit sworn on 16 October 2020. That affidavit confirms that:
(a) the sole asset of Golden Prosperity is the Property, which is subject to an interest only mortgage in the amount of $650,000;
(b) there is sufficient equity in the Property to pay the debt owing under the mortgage;
(c) the debt to the ATO has been paid in full and that the ATO confirmed in writing on 28 September 2020 that there was no outstanding tax liability for Golden Prosperity as trustee of the Trust;
(d) a further proof of debt submitted in the liquidation by Shield Mercantile Pty Ltd on behalf of Toyota Financial Services was withdrawn as the debt was satisfied by Mr Waldock;
(e) the State Revenue Office advised the Liquidators on 28 September 2020 that the 2020 land tax assessment of $1,725 remained outstanding and that the Liquidators have reminded Mr Waldock that this amount must be paid;
(f) Golden Prosperity is a guarantor for a loan by Westpac Banking Corporation to Mr Waldock and his wife in the amount of approximately $366,000, which is currently in arrears in the amount of $1,342.25;
(g) Mr Waldock has advised the Liquidators, and the Liquidators’ independent property searches have confirmed, that the Westpac loan is secured by a mortgage on a property located at 370 Bluestone Bridge Road, Lovely Banks, Victoria, being a vacant block owned by another company controlled by Mr Waldock and his wife;
(h) the Trust’s financial records for the year ended 30 June 2015 record a loan owing to Mr Waldock in the amount of $1,045,697.50 as a beneficiary loan account, although Mr Waldock has not submitted a proof of debt in relation to the loan;
(i) a search of the Personal Property Securities Register for both Golden Prosperity and the Trust did not disclose any security interests registered against either entity;
(j) following limited investigations into the affairs of Golden Prosperity the liquidators are not aware of any instances of Mr Waldock breaching his duties as a director, nor any breaches by Mr Waldock of Commonwealth or State laws; and
(k) subject to Mr Waldock paying outstanding remuneration to the Liquidators (discussed further below), the Liquidators are not aware of any other facts or circumstances that would make it inappropriate for the control of Golden Prosperity to be returned to Mr Waldock.
Section 482(1) of the Act provides that at any time during the winding up of a company the Court may, on application, make an order staying the winding up either indefinitely or for a limited time or terminating the winding up on a day specified in the order.
An application may be made by the liquidator, creditor or contributory of the company. As noted above Mr Waldock is the sole shareholder of Golden Prosperity. The applicant must establish that the order is appropriate.
The decision whether to order that a winding up be terminated is discretionary. In Re Spartan Pastoral Company Pty Ltd (in liq),[1] Black J helpfully summarised the relevant principles and authorities relevant to the exercise of the Court’s power to order the termination of a winding up:
[1][2020] NSWSC 1218, [25]-[31].
25… The Court’s power to make an order terminating a winding up under s 482 of the Corporations Act is discretionary, as the case law has noted, and a person who seeks such an order must establish that the order is appropriate. The factors relevant to whether a winding up should be stayed or terminated were summarised by Master Lee QC of the Supreme Court of Queensland in Re Warbler Pty Ltd (1982) 6 ACLR 526 at 533 as follows:
‘1.The granting of a stay is a discretionary matter, and there is a clear onus on the applicant to make out a positive case for a stay: Re Calgary and Edmonton Land Co Ltd (in liq) (1975) 1 WLR 355 at 358–359 per Megarry J. See also sec 243 of the Act [i.e., Companies Act 1961].
2.`There must be service of notice of the application for a stay on all creditors and contributories, and proof of this: Re South Barrule Slate Quarry Co (1869) LR 8 Eq 688; Re Bank of Queensland Ltd (1870) 2 QSCR 113.
3.The nature and extent of the creditors must be shown, and whether or not all debts have been discharged: Krextile Holdings Pty Ltd v Widdows supra [[1974] VR 689]; Re Data Homes Pty Ltd supra [1971] 1 NSWLR 338].
4.The attitude of creditors, contributories and the liquidator is a relevant consideration: sec 243(1), Re Calgary and Edmonton Land Co Ltd supra.
5.The current trading position and general solvency of the company should be demonstrated. Solvency is of significance when a stay of proceedings in the winding-up is sought: Re a Private Company [1935] NZGazLawRp 17; [1935] NZLR 120; Re Mascot Home Furnishers Pty Ltd [1970] VR 593 at 598.
6.If there has been non-compliance by directors with their statutory duties as to the giving of information or furnishing a statement of affairs, a full explanation of the reasons and circumstances should be given: Re Telescriptor Syndicate Ltd, supra [[1903] 2 Ch 174].
7.The general background and circumstances which led to the winding-up order should be explained: Krextile Holdings Pty Ltd v Widdows, supra.
8.The nature of the business carried on by the company should be demonstrated, and whether or not the conduct of the company was in any way contrary to “commercial morality” or the “public interest”: Krextile Holdings Pty Ltd v Widdows, supra; Re Data Homes Pty Ltd, supra …’
26Master Lee noted that this list was not intended to be exhaustive and should not be regarded as a series of rigid principles, and that proposition has subsequently been endorsed in later case law: Dubolo Pty Ltd (t/as Fender Signs) v Codrington Investment Corporation Pty Ltd (1998) 26 ACSR 723 at 724, Metledge v Bambakit Pty Ltd (in liq) [2005] NSWSC 160 at [5] and Von Riesefer v Mainfreight International Pty Ltd [2009] VSCA 129; (2009) 73 ACSR 427 at 438; Re 311 Hume Highway Liverpool Fund Pty Ltd (in liq) [2013] NSWSC 465; 93 ACSR 683 at [4].
27In Mercy & Sons Pty Ltd v Wanari Pty Ltd [2000] NSWSC 756; (2000) 35 ACSR 70 at [47]–[51], Austin J in turn observed that:
In considering an application to stay or terminate a court-ordered winding up under s 482, the court has regard to various categories of interests. First, the court considers the interests of creditors, taking into account whether they object to the proposed termination. But even if all the existing creditors agree, the court may take the view that the proposed termination puts at risk the interests of future creditors. For example, the court is likely to be concerned where the proposal preserves the existing debts but defers their payment, particularly if the deferment has no enforceable status: see the remarks of Street J at first instance in Re Data Homes Pty Ltd [1971] 1 NSWLR 338 at 341. Similarly, if the proposal is that the principal shareholder/creditor will pay out all the other creditors and seek recovery of his debt by [instalments], the court is unlikely to permit the company to start trading again and thereby incur additional debts, since if the company fails again, recovery by the new creditors may be prejudiced by the existing debt. However, if the principal shareholder/creditor capitalises his debt, the court may well take a different view: Collins v G Collins & Sons Pty Ltd (1984) 9 ACLR 58.
The cases concerning the interests of creditors do not, in my opinion, establish inflexible rules. Specifically, I do not believe that there is any absolute rule that a winding up cannot be terminated as long as one or more debts remains undischarged. Instead, the cases identify the range of concerns which the court is likely to have in exercising its discretion when an application is made, and therefore give guidance as to the matters upon which the court will need to be satisfied.
Second, the court considers the interests of the liquidator, particularly with respect to costs. …
Third, the court considers the interests of contributories. Generally a stay or termination will not be granted unless each member of the company either consents or is otherwise bound not to object to it, or his or her rights are properly secured: Re Calgary and Edmonton Land Co Ltd (in liq) [1975] 1 All ER 1046. …
Finally, the court considers the public interest, including matters of commercial morality, taking the initial approach that insolvent companies should be wound up: Re Data Homes Pty Ltd [1972] 2 NSWLR 22.
His Honour there also noted (at [53]) that the factors relevant to the exercise of that discretion were not “absolute rules” but “identify the range of discretionary concerns which the court will need to address”.
28Relevant factors were in turn identified by Austin J in Vero Workers Compensation (NSW) Ltd v Ferretti Pty Ltd [2006] NSWSC 292; (2006) 57 ACSR 103 at [17] as including the interests of the company’s creditors, including future creditors; the interests of the liquidator, particularly with regard to costs; the interests of contributories and the interests of the public, including the public interest in matters of commercial morality, and the public interest that insolvent companies should be wound up.
29In Modena Imports Pty Ltd (in liq), Re Leveraged Capital Pty Ltd (recs and mgrs. apptd) (in liq) v Modena Imports Pty Ltd (in liq) [2010] NSWSC 739 at [13], Palmer J identified other relevant considerations, including that the applicant must make out a positive case for the favourable exercise of the Court’s discretion and must show the nature and extent of the creditors, and whether all debts have been discharged; the attitude of creditors, contributories and the liquidator; the current trading position and general solvency of the company; a full explanation by the applicant of any non-compliance by the directors with their statutory duties; the general background and circumstances leading to the winding up order; and the nature of the company’s business and whether the conduct of the company was in any way contrary to “commercial morality” or “the public interest”. The identification of these considerations were approved by Gleeson JA in Re CNL Transport Pty Ltd (in liq) Hunt v Smith [2017] NSWSC 291 at [22].
30In Re Glass Recycling Pty Ltd [2014] NSWSC 439 at [15]ff, Brereton J summarised the relevant principles and observed at [18]–[19] (omitting citations) that:
Essentially, on such an application, the court must be satisfied, first, that the state of affairs that required that the company be wound up no longer exists. Where the winding up was on grounds of insolvency, it will be necessary for the applicant to demonstrate that the company is not, or is no longer, insolvent. This is usually the most significant consideration ... Thus it has been said that an order terminating the winding up would usually be made if all the creditors are paid out, the liquidators’ costs and expenses are covered, and the members agree ...
However, the factors to which the cases refer demonstrate that more is necessary than merely establishing that the state of affairs that required the company to be wound up no longer exists. This appears from, inter alia, the references to “commercial morality” as a relevant consideration, and also from references to the interests of future as well as extant creditors. These factors illustrate that the second broad consideration that informs the exercise of the court’s discretion – once satisfied that the state of affairs that originally required winding up no longer exists – is that it would be reasonable to entrust the affairs of the company, once again, to the directors under whose management it previously failed.
31In Re Glass Recycling Pty Ltd above, Brereton J also referred to the observations of Bergin CJ in Eq in Re SNL Group Pty Ltd (in liq) [2010] NSWSC 797, which emphasised the importance of solvency in determining such an application. Her Honour there noted (at [24]) that:
The other considerations, such as the extent of the creditors, the status of the debts and the nature of the company’s business will be taken into account in determining whether the company has returned to, or will be returned to solvency.
His Honour also referred to Apostolou v VA Corporation of Australia Pty Ltd [2010] FCA 64; (2010) 77 ACSR 84 at [58] where Finkelstein J noted that an order terminating a winding up would usually be made if all the creditors are paid out, the liquidator’s costs and expenses are covered and the members agree, although his Honour also recognised that there may be exceptional circumstances where that would not occur despite a company’s solvency.
I am satisfied for the following reasons that it is appropriate to order that the winding up of Golden Prosperity be terminated.
First, the events that led to the winding up order have been explained and the identified unsecured creditors paid out in full.
Second, Golden Prosperity did not trade and Mr Waldock has explained to the Court that there is no intention that Golden Prosperity will trade in the future.
Third, the sole purpose of Golden Prosperity is to hold property. Since the winding up order was made Mr Waldock has met and agreed to continue to meet the mortgage repayments relating to the Property. The mortgagee does not oppose the termination of the winding up.
Fourth, Golden Prosperity has no other creditors with debts due and payable.
Fifth, the assets of Golden Prosperity are sufficient to meet any other potential creditors’ claims.
Sixth, following albeit limited investigations, the Liquidators are not aware of any instances of Mr Waldock breaching his duties as a director or not complying with his obligations under the Act. Issues of commercial morality do not arise.
Seventh, subject to the Court making orders for the payment of their remuneration, the Liquidators are not aware of any facts or circumstances that would make it inappropriate for the control of Golden Prosperity to be returned to Mr Waldock.
Liqiudators’ remuneration
As noted above the Liquidators were appointed by order of the Court made 9 September 2015.
The Liquidators seek an order for their remuneration as follows:
(a) from 9 September 2015 to 23 September 2020 in the amount of $42,947.82 plus GST; and
(b) from 24 September 2020 to the completion of the liquidation in the amount of $8,000 plus GST.
In addition the Liquidators seek an order for the payment of their internal disbursements for the period 9 September 2015 to 23 September 2020 in the amount of $575.26 plus GST.
The Liquidators’ application is supported by the affidavit of Michael Francis Quin sworn 16 October 2020 which exhibits, among other things, the Liquidators’ remuneration approval request report. Mr Waldock does not oppose the Liquidators’ application.
Rule 9.2 of the Supreme Court (Corporations) Rules 2013 sets out the notice requirements to be complied with by external administrators seeking a determination of their remuneration entitlement from the Court. In this instance there is no evidence that the Liquidators have provided notice of their application to the creditors of Golden Prosperity that were identified during the course of the liquidation, being the ATO and Shield Mercantile. However, the evidence before the Court demonstrates that, as at the date of the Liquidators’ remuneration application, Golden Prosperity has no current creditors other than perhaps Mr Waldock.
Mr Waldock, as the sole member of Golden Prosperity is on notice of the Liquidators’ application. In these circumstances I am satisfied that the lack of notice to the prior unsecured creditors should not be a barrier to the determination of the Liquidators’ application.
The Liquidators appointment by the Court pre-dates the commencement of the remuneration provisions in Division 60 of the Practice Schedule.[2] For this reason s 473 of the Act continues to apply to the Liquidator’s application.[3]
[2]1 September 2017 by virtue of regulation 10.25.02(3) of the Corporations Regulations 2001 and s 1581 of the Act.
[3]For an explanation of the transitional provisions for approval of remuneration applications see, for example, In the matter of Allston Homes (in liq) [2017] VSC 500, [8]-[11] and Re Tuscan Property Development Pty Ltd [2018] VSC 511, [22].
Section 473(3) of the Act provides:
(3)A liquidator is entitled to receive such remuneration by way of percentage or otherwise as is determined:
(a)if there is a committee of inspection – by agreement between the liquidator and the committee of inspection; or
(b)if there is no committee of inspection or the liquidator and the committee of inspection fail to agree:
(i)by resolution of the creditors; or
(ii)if no such resolution is passed – by the Court.
The liquidators’ application falls to be determined under s 473(3)(b)(ii).
Section 473(10) of the Act prescribes the matters which the Court must take into account when exercising the power to determine the Liquidators’ remuneration:
(10)In exercising its powers under subsection (3), (5) or (6), the Court must have regard to whether the remuneration is reasonable, taking into account any or all of the following matters:
(a)the extent to which the work performed by the liquidator was reasonably necessary;
(b)the extent to which the work likely to be performed by the liquidator is likely to be reasonably necessary;
(c)the period during which the work was, or is likely to be, performed by the liquidator;
(d)the quality of the work performed, or likely to be performed, by the liquidator;
(e)the complexity (or otherwise) of the work performed, or likely to be performed, by the liquidator;
(f)the extent (if any) to which the liquidator was, or is likely to be, required to deal with extraordinary issues;
(g)the extent (if any) to which the liquidator was, or is likely to be, required to accept a higher level of risk or responsibility than is usually the case;
(h)the value and nature of any property dealt with, or likely to be dealt with, by the liquidator;
(i)whether the liquidator was, or is likely to be, required to deal with:
(i)one or more receivers; or
(ii)one or more receivers and managers;
(j)the number, attributes and behaviour, or the likely number, attributes and behaviour, of the company’s creditors;
(k)if the remuneration is ascertained, in whole or in part, on a time basis:
(i)the time properly taken, or likely to be properly taken, by the liquidator in performing the work; and
(ii)whether the total remuneration payable to the liquidator is capped;
(l) any other relevant matters.
In taking into account the matters referred to in s 473(10) of the Act, the court must consider the actual nature of the work undertaken by the liquidator, whether it was reasonably necessary to carry it out and the appropriateness of the amount charged.[4]
[4]Sanderson (as liquidator of Sakr Nominees Pty Ltd (in liq)) v Sakr (2017) 118 ASCR 333, 344 (Bathurst CJ).
In Re ACN 004 323 184 Pty Ltd,[5] Dodds-Streeton J considered the principles applicable to assessing a remuneration application brought under s 473(3)(b) of the Act:
[5][2002] VSC 353, [30]-[32].
Venetian Nominees Pty Ltd v Conlan,[6] a decision of the Full Court of the Supreme Court of Western Australia, involved an appeal from a Master’s approval of a provisional liquidator’s claim for remuneration pursuant to s.473. Although the case concerned the remuneration claim of a provisional liquidator, in my opinion, the approach adopted by the Full Court applies with equal validity to a claim by a liquidator.
[6](1998) 16 ACLC 1653.
The propositions enunciated in Venetian Nominees which I consider applicable to a liquidator’s claim pursuant to s.473(3) of the Act include the following:
(a)The procedure for the determination is a summary one for fixing costs of an officer of the court as part of its supervisory function, in which strict observance of the rules of evidence is not ordinarily required.
(b)The onus is on the liquidator to establish that the remuneration claimed is fair and reasonable.
(c)The function of the court is to make an independent determination, based on the material proffered, of whether the remuneration claimed is fair and reasonable.
(d)If the liquidator establishes a prima facie case on the basis of the proffered material, which may include evidence which would not be admissible pursuant to strict observance of the rules of evidence, the court should then consider the validity of any objections.
(e)The mere listing of the persons who performed the work, the hours worked and the amounts claimed may be insufficient for the court to reach a determination. Ordinarily, the liquidator will provide ‘a statement of account reflecting in the appropriate itemised form, details of the work done, the identity of the persons who did the work, the time taken for doing the work, and the remuneration claimed accordingly.’[7]
(f) the statement of account should be verified by affidavit.[8]
In my opinion, the approach of the Full Court of the Supreme Court of Western Australia in Venetian Nominees, in rejecting an absolute rule in detailed terms for the statement of account to be provided by a provisional liquidator, is equally applicable to the case of a liquidator. More or less particularised statements may be appropriate in different cases, and ‘every case depends on its own circumstances’.[9] I agree with the Full Court’s articulation of the overriding principle in this context, namely, that “sufficient information must be provided to the court to enable it to perform its function” under s.473(3)(b)(ii).[10]
[7]Ibid 1658.
[8]Ibid.
[9]Ibid 1659.
[10]Ibid.
The Liquidators’ Remuneration Approval Request Report states that Golden Prosperity’s creditors were advised in the Liquidators’ Initial Remuneration Report dated 9 October 2015 that the Liquidators proposed to have their remuneration calculated on a time based hourly method. The amount now sought by the Liquidators is significantly in excess of the estimation of remuneration the Liquidators provided to creditors at the commencement of the liquidation. The Liquidators explain that due to the length of time Mr Waldock has taken to file his application to terminate the winding up, the Liquidators have had to spend more time than originally anticipated on statutory and administrative tasks, including preparing and lodging half yearly and annual accounts for the liquidation with ASIC, lodging quarterly Business Activity Statements with the ATO, maintaining insurance over the Property and conducting six monthly file reviews as part of the Liquidators’ internal control procedures. I am satisfied that the Liquidators have provided a satisfactory explanation for the increase in the remuneration they seek.
For the period from 9 September 2015 to 23 September 2020 the Liquidators’ Remuneration Approval Request Report sets out the total hours and amounts billed according to the Liquidators themselves and their various employees across a number of task areas. In summary those amounts are:
9 September 2015 to 23 September 2020 Position Employee Total Hours Total Amount Appointee Keith Sutherland 15.70 $8,495.50 Appointee Michael Quin 24.20 $13,166.50 Manager 1 Employee BT 42.70 $14,827.40 Supervisor Employee JB 0.90 $196.80 Supervisor Employee RC 0.20 $38.20 Senior 2 Employee SK 0.10 $15.50 Senior 2 Employee YY 16.63 $2,690.17 Personal Assistant Employee JK 0.25 $35.00 Personal Assistant Employee JS 0.10 $14.00 Personal Assistant Employee LF 1.70 $227.90 Personal Assistant Employee RJ 10.60 $1,378.00 Personal Assistant Employee SL 8.80 $1,170.40 Personal Assistant Employee TP 0.20 $28.00 Personal Assistant Employee VC 2.25 $315.00 Support Staff 2 Employee MS 3.75 $349.45 128.08 $42,947.82
The above table suggests that a large amount of the work was undertaken by the more senior staff involved in the liquidation. Having regard to the particular circumstances of this liquidation and the significant liaison with Mr Waldock and his legal representatives, I am satisfied that this was appropriate.
The task areas are identified in the Liquidators’ Remuneration Approval Request Report as Assets, Creditors, Investigations, Dividend and Administration.
Tasks undertaken within the Assets task area include reviewing property searches, obtaining valuations of properties and making inquiries of various parties regarding the property.
Tasks undertaken within the Creditors task area include corresponding with the mortgagee to obtain the balance of the loan, reviewing land tax notice assessments received from the State Revenue Office, corresponding with the director and his solicitor regarding payment of outstanding land tax, reviewing creditors’ proofs of debt, corresponding with the ATO to discuss Golden Prosperity’s running balance account deficit and preparing the circular to the creditors dated 12 October 2015.
Tasks undertaken within the Investigations task area include collection and review of Golden Prosperity’s books and records, review of Mr Waldock’s Report as to Affairs and conducting various searches and enquiries including of Golden Prosperity’s accountants, preparing and lodging the s 476 report with ASIC and preparing for the termination of the liquidation.
Tasks undertaken within the Dividend task area include registering proofs of debt and liaising with Mr Waldock’s solicitor regarding the Liquidators’ costs.
Tasks undertaken within the Administration task area include dealing with correspondence, maintaining files, attending to insurance and bank account administration.
I am satisfied that each of the tasks undertaken in the period 9 September 2015 to 23 September 2020 were necessary and appropriate. I am also satisfied that the hourly rates and hours billed in relation to each task were appropriate in all the circumstances of this liquidation.
The remuneration sought for the period 24 September 2020 to the completion of the liquidation is set out in the Liquidators’ Remuneration Approval Request Report as a summarised figure against the task areas of Creditors, Investigations and Administration with the content of the various tasks included detailed in the relevant schedule to the Report:
Category Amount Hours Implied hourly rate Creditors $1,000.00 2.5 $400/hr Investigations $6,000.00 15 $400/hr Administration $1,000.00 4 $250/hr Previous average hourly rate Aggregate $8,000.00 23.5 $340/hr $335/hr
I am satisfied that each of the tasks proposed to be undertaken in the period 24 September 2020 to the end of the liquidation are necessary and appropriate. I am also satisfied that the proposed hourly rates and estimate of hours is appropriate in all the circumstances of this liquidation.
Having regard to the information provided in the Liquidators’ Remuneration Approval Request Report and Mr Quin’s affidavit sworn 16 October 2020,
I am satisfied that:
(a) the work performed by the Liquidators was necessary and properly performed;
(b) the work to be performed by the Liquidators is necessary and appropriate;
(c) the work required of the Liquidators was not complex;
(d) the Liquidators were not required to accept a higher level of risk or responsibility than is usually the case or to deal with extraordinary issues;
(e) the value and nature of the property involved was respectively modest and relatively straightforward;
(f) the number of creditors was small; and
(g) the remuneration was calculated on a time basis and the time taken for each task and the level of employee performing the task is set out in sufficient detail.
The Liquidators seek an order for the payment of their internal disbursements in the amount of $575.26 (excl. GST). Their Remuneration Approval Request Report provides a comprehensive breakdown of these costs including photocopying, facsimiles, postage, printing and DLX regular post. Given the relatively modest amount claimed and that they appear to be of the kind likely to be incurred in the course of a liquidation and there is no objection by Mr Waldock, I am satisfied that it is appropriate to make an order for the payment of the internal disbursements.[11]
[11]Lucantonio v Benscape Pty Ltd (No 2) [2020] NSWSC 1114.
Finally, I note that on December 2018 Mr Waldock paid $40,000 to the Liquidators towards the costs of the liquidation of which $37,378.04 remains in the liquidation account.
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