Re Pluton Resources Ltd
[2023] VSC 160
•6 April 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST
S ECI 2018 01136
IN THE MATTER of
BETWEEN:
| ZIZIPHUS PTY LTD & ANOR (according to the attached Schedule) | Plaintiffs |
| v | |
| PLUTON RESOURCES LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) & ANOR (according to the attached Schedule) | Defendants |
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JUDGE: | Caporale JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 6 April 2023 |
CASE MAY BE CITED AS: | Re Pluton Resources Ltd |
MEDIUM NEUTRAL CITATION: | [2023] VSC 160 |
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CORPORATIONS – Court determination of a liquidator’s remuneration – Special purpose liquidator – s 60-10(c) of the Insolvency Practice Schedule (Corporations), Schedule 2 of the Corporations Act 2001 (Cth) – Prima facie case that remuneration reasonable – Regard to relevant matters in s 60-12 of Schedule 2.
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JUDICIAL REGISTRAR:
Introduction
Pluton Resources Limited (Receivers and Managers Appointed) (In Liquidation) (ACN 114 561 732) (company) operated an iron ore mining business located on Cockatoo Island, Western Australia.[1]
[1]Affidavit of Laurence Andrew Fitzgerald, sworn on 3 December 2020, [8] – [10], (‘3 December Fitzgerald Affidavit’).
On 6 September 2018 the Court ordered that Laurence Fitzgerald, Registered Liquidator and Chartered Accountant, be appointed as Special Purpose Liquidator (SPL) of the company pursuant to s 472(1) of the Corporations Act 2001 (Cth) (Act).[2]
[2]Order of Sifris J in Pluton Resources Limited (receivers and managers appointed) (in liquidation) (ACN 114 561 732) (Supreme Court of Victoria, S ECI 2018 01136, commenced 5 September 2018, (‘Order of Sifris J’).
On 30 March 2021 the Court made a determination that the SPL was entitled to remuneration in the amount of $420,334.50 (excluding GST) for work performed for the period 6 September 2018 to 16 November 2020 (first remuneration application).[3]
[3]Order of Irving JR in Pluton Resources Limited (receivers and managers appointed) (in liquidation) (ACN 114 561 732) (Supreme Court of Victoria, S ECI 2018 01136, commenced 5 September 2018) (‘Order of Irving JR’).
The SPL now seeks a determination under s 60-10(1)(c) of the Insolvency Practice Schedule(Corporations), being Schedule 2 of the Act (IPS),[4] that he is entitled to further remuneration in the amount of $600,719.50 (exclusive of GST) for work performed for the period 17 November 2020 to 21 October 2022 (relevant period) (together with other ancillary orders) (application). In support of the application the SPL relies on an affidavit sworn by him on 7 December 2022 and an affidavit affirmed by one of his solicitors, William Madani, on 18 January 2023. Exhibited to the SPL’s affidavit are timesheet listings for the period 17 November 2020 to 21 October 2022 (timesheets).
[4]Corporations Act 2001 (Cth) sch 2 (‘Insolvency Practice Schedule (Corporations)’).
Dealing with the application ‘on the papers’
Rule 9.2 of the Supreme Court (Corporations) Rules 2013 (Rules) provides for a process where applicants for a remuneration determination can serve the application and other documents on 1 or more of 4 groups of people, as set out in r 9.2(2).[5] If no objection is made to the remuneration claimed within 21 days after service, the application can be dealt with in the absence of the public and without the attendance of the applicant. This is often referred to as dealing with the application ‘on the papers’.
[5]Supreme Court (Corporations) Rules 2013 (Vic) r 9.2 (‘Rules’).
In this matter, the SPL has served the required documents in compliance with r 9.2(2)(c),[6] being the 5 largest creditors of the company measured by the amount of debt. The required documents have also been served in accordance with r 9.2(2)(d), being each member of the company whose shareholding represents at least 10% of the issued capital of the company, who, in this matter, were also the 5 largest creditors.[7] None of them have made an objection to the remuneration claimed.[8]
[6]Rules (n 5), r 9.2(2)(c).
[7]Ibid, r 9.2(2)(d).
[8]Affidavit of William Madani, affirmed on 18 January 2023, 2 – 5.
There is no committee of inspection so r 9.2(2)(b) is not relevant.[9] The last remaining group of people set out in r 9.2(2) is each creditor who was present, in person or by proxy, at any meeting of creditors, in accordance with r 9.2(2)(a).[10] The SPL did not serve the application and other documents on this group and asks the Court to dispense with compliance with this rule. In his affidavit, the SPL asks for such a dispensation as due to the number of meetings which took place (that being 8), the cost and time associated with identifying the creditors who attended these meetings (approximately 58) and the time which has passed since the meetings took place (the most recent meeting was held on 14 February 2018), he considers it impractical and unduly costly to provide notification of this application to all creditors who have attended creditors’ meetings.[11] Such a dispensation was given in the first remuneration application.[12] For the reasons set out in the SPL’s affidavit, together with the fact that service of the application has been served on the persons set out in r 9.2(2)(c) and (d), I will order that compliance with the requirements of r 9.2(2)(a) is dispensed with.
[9]Rules (n 5), r 9.2(2)(b).
[10]Ibid, r 9.2(2).
[11]Affidavit of Laurence Andrew Fitzgerald, sworn on 7 December 2022, 12 [48], (‘7 December Fitzgerald Affidavit’).
[12]Order of Irving JR (n 3).
Rule 9.2(4)(b) provides that the SPL, if he wishes for the application to be heard ‘on the papers’, must endorse the application with a request that the application be so dealt with.[13] The SPL did not do this. Instead, the application provided that it would be heard by me on 20 February 2023 at 10.30am. No-one enquired of the Court about that proposed hearing date and whether it would be heard in-person or on-line, nor did they indicate that they wished to appear or observe the hearing. In those circumstances, and given that no objections to the claimed remuneration have been made, I will also order that compliance with the requirements of r 9.2(4)(b) is dispensed with.
[13] Rules (n 5), r 9.2
The appointment of the SPL
As set out above, the SPL was appointed by this Court on 6 September 2018. The purpose of the appointment and the powers granted to the SPL are limited in scope and as ordered by the Court. The SPL was appointed for the purpose of investigating and prosecuting, and extending the time for prosecution of, claims by, or on behalf of, or for the benefit of, the company (including without limitation, conducting public examinations under sections 596A and 596B of the Act), except for prosecuting any proceeding filed by the Second Defendants on or prior to 7 September 2018.[14] The appointment of the SPL runs concurrently with the incumbent liquidators of the company and does not affect their duties as liquidators.
[14]Order of Sifris J (n 2).
On 26 October 2018 the SPL obtained leave from the Court to extend the period during which an application could be made under s 588FF(1) of the Act to 30 June 2020. The SPL has since settled all actions relating to voidable transactions.[15]
[15]3 December Fitzgerald Affidavit (n 1), [19].
On 9 June 2021 the SPL made an application under s 588M of the Act seeking relief in relation to insolvent trading. This matter is on-going.[16]
[16]7 December Fitzgerald Affidavit (n 11), [17]
It is against this background that the application is considered.
Legal principles
Section 60-10(1)(c) of the IPS provides the Court with power to make a determination about the remuneration that the SPL is entitled to receive for necessary work properly performed by him as liquidator of the company.[17]
[17]Insolvency Practice Schedule (Corporations) (n 4), s 60-10(c).
Section 60-12 of the IPS provides that, in making that determination, the Court must have regard to whether the remuneration is reasonable, taking into account any or all of the matters set out in s 60-12(a) – (m).[18]
[18]Ibid, s 60—12.
The principles concerning applications for approval of remuneration incurred by insolvency practitioners are well established and have been referred to in many decisions of this Court. These principles were developed when previous statutory provisions of the Corporations Act 2001 applied. However, the matters contained in s 60-12 of the IPS are materially the same as the matters that were set out in s 449E(4) of the Act (now repealed). Accordingly, the authorities that deal with the now repealed provisions concerning Court approval of a liquidator’s remuneration remain relevant.
Gardiner AsJ summarised the relevant principles in Re Traditional Values Management Limited (in liq) at paragraphs [18] to [25].[19] For convenience I adopt his Honour’s summary, which referred to the principles identified by Davies J in Thackray v Gunns Plantations. I summarise those principles as relevant to the application as follows:
[19][2012] VSC 650 at [18] – [25] (‘Traditional Values’).
(a) a summary procedure was involved, not unlike that applicable to the taxation of a solicitor’s costs, where not all the rules that normally apply to an action are applicable;
(b) the initial task of the Court is to consider whether the liquidator has made out a prima facie case on the evidence before the Court that the remuneration claimed is fair and reasonable, bringing an independent mind to the assessment procedure. If a prima facie case is established, the Court must then consider the validity of any objections;
(c) there is no absolute rule regarding the amount of detail required to support a remuneration claim but the evidence relied on should be sufficient to enable potential objectors to review the claim and decide if any objection should be taken, and for the Court and any objector to have a clear view about what was done so that an assessment can be made about the reasonableness of the claim; and
(d) there is no universal approach applicable in all circumstances by which the ‘reasonableness’ of remuneration claimed or expenses incurred should be measured. The size, importance and complexity of the tasks performed are all factors to be taken into account.[20]
[20]Traditional Values (n 19) at [18] – [25]; (2011) 85 ACSR 144 at [60], (‘Thackray’).
Black J also summarised the applicable principles in Re Sakr Nominees Pty Ltd, where his Honour stated at [23] that:
[T]he Court will generally need to be provided with an account in itemised form, setting out at least the details of the work done; the persons who did the work; the time taken to perform the work; the remuneration claimed; and, to the extent relevant, the expenses incurred by the liquidator.
Proportionality is an important matter in considering the question of whether remuneration is reasonable, and the ‘value’ of a liquidator’s work can include the benefit of resolving the position of creditors and beneficiaries, the benefit to the community of not permitting assets to remain unproductively in the hands of a defunct company for a long period; and can include work that was required to be done, although it did not result in a return to creditors.[21]
The evidence in support of the application and prima facie case that the remuneration claimed is fair and reasonable
[21][2017] NSWSC 668, at [23], (‘Sakr Nominees Pty Ltd’).
In his affidavit, the SPL deposes that he has been a registered liquidator since 1996 and has practised primarily in the field of insolvency and corporate restructuring since 1985.[22]
[22]7 December Fitzgerald Affidavit (n 11), [1].
The SPL states that the key purpose of his appointment was to investigate the affairs of the company for the purpose of investigating and prosecuting any claims for the benefit of the company’s creditors, with the key tasks undertaken being prosecuting voidable transaction claims and investigating and prosecuting insolvent trading proceedings against certain directors of the company.[23]
[23]Ibid, [10].
The SPL commenced three voidable transaction proceedings prior to the relevant period and during the relevant period continued to prosecute each of the proceedings. Each proceeding settled during the relevant period, with a substantial amount of money being recovered.[24]
[24]Ibid, [11] – [13].
The s 439A Report prepared by the company’s liquidators identified a potential insolvent trading action against the directors with a possible recovery of $16.7M. During the first period, the SPL commenced investigations into the potential insolvent trading claim.[25]
[25]Ibid, [14] – [15].
The SPL states that following his initial investigations, he concluded that there was a voidable claim which should be pursued. On 26 November 2020, the SPL made application for approval to enter into a funding agreement. The application was granted.[26]
[26]Ibid, [16].
On 9 June 2021 the SPL issued insolvent trading proceedings against 8 directors, with the total amount of the claim being approximately $48.6M.[27]
[27]Ibid, [17].
Throughout the relevant period the SPL has prosecuted the insolvent trading proceedings and they remain on foot, save that there was a settlement with one of the directors and the proceeding was discontinued in relation to another two of the directors. The SPL expects that the proceeding in relation to the remaining directors will be listed for trial in mid-2023 for ten days. The SPL’s costs of the insolvent trading proceeding is payable by the litigation funder.[28]
[28]Ibid, [18] – [20].
The details of the remuneration sought in the application are set out in the SPL’s Remuneration Approval Report dated 28 October 2022 (Remuneration Approval Report).[29]
[29]Ibid, [22].
The SPL states that his fees (and the fees of his staff) have been calculated using a time based methodology, being on an hourly rates basis. The SPL considers this to be the most appropriate method for the following reasons:[30]
[30]Ibid, [23].
(a) given the complexity of the company’s external administration, which has been ongoing since September 2015 and was preceded by a number of receivership appointments, the SPL was uncertain of the work that would be required to complete the winding up. As such, it was not possible to calculate a fixed fee which accurately reflected the work that would be undertaken;
(b) a fee based on assets realised would not be appropriate given that no assets of the company were available to the SPL at the time of his appointment. At the time of his appointment the SPL also did not have access to the books and records of the company; and
(c) contingency remuneration is not applicable as the object of the Special Purpose Liquidation is an uncertain outcome which may require substantial work to be performed.[31]
[31]3 December Fitzgerald Affidavit (n 1), [30]
The SPL has grouped the tasks performed during the relevant period into three separate categories – firstly, investigations (comprised of the sub-categories ‘conducting investigations’ and ‘litigation/recoveries’); secondly, administration (comprised of tasks such as ‘legal issues’, ‘litigation funding’, ‘correspondence’ and ‘ATO and other statutory reporting’); and thirdly, creditors (comprised of creditor/shareholder/employee enquiries, requests and directions).[32]
[32]7 December Fitzgerald Affidavit (n 11), [25].
The apportioning of work across these three categories and sub-categories is as follows:[33]
[33]Ibid, at [26].
Fee Type Hours Value (ex. GST) % Value Investigations – Voidable Transactions Conducting investigations 7.90 $ 3,398.00 0.57% Litigation/Recoveries 71.40 $ 36,871.00 6.14% Sub – Total 79.30 $ 40,269.00 6.70% Investigations – Insolvent Trading Conducting investigations 419.70 $ 190,308.50 31.68% Litigation/Recoveries 452.30 $ 241,871.00 40.26% Sub – Total 872.00 $ 432,179.50 71.94% Investigations Total 951.30 $ 472,448.50 78.65% Administration Administration 289.80 $ 119,715.00 19.93% Creditors Creditors 18.00 $ 8,556.00 1.42% Total 1,259.10 $ 600,719.50 (ex. GST) 100%
As can be seen from that table, the largest proportion of work has been performed in the investigations category in relation to insolvent trading (78.65%).
As noted above, ‘conducting investigations’ is a sub-category of the investigations tasks. This sub-category accounts for 32.25% of the remuneration claimed in the application. The main tasks included in this sub-category are:
(a) making numerous requests for company books and records from the Liquidators and Receivers of Pluton, to obtain Reckon data of Pluton and also Auxilium Partners, who are the current Receivers of Pluton;
(b) liaising with incumbent Liquidator(s) to collate accurate data on creditor and employee claims;
(c) liaising with Receiver regarding receivership and asset sale process updates;
(d) liaising with retired external administrators regarding books and records of the company;
(e) liaising with the company’s former advisors regarding books and records of the company;
(f) reviewing the company’s books and records;
(g) meeting with key stakeholders to discuss relevant documents;
(h) reviewing images of Pluton’s server and discoverable documents;
(i) completing investigations regarding voidable transactions claims;
(j) conducting financial and evidentiary analysis on insolvent trading claims and assessing the merits of the same;
(k) preparation of investigation file notes for the purpose of assessing the merits of voidable transaction and insolvent trading claims;
(l) preparing chronologies of key events;
(m) preparation of verification analysis regarding creditor claims and quantifying potential insolvent trading and voidable transaction claims; and
(n) drafting solvency report. [34]
[34]Ibid, at [27] – [28].
The SPL states work performed in relation to this sub-category has been primarily undertaken by more senior staff members with 70.14% of work in this sub-category attributable to staff at these levels. This is so because the work involved, amongst other things, concerns analysis of complex financial data and potential evidence in litigation, considering the legal implications of the available evidence, considering legal advice, negotiating with third parties and making strategic decisions prior to commencing litigation.[35]
[35]Ibid, at [29].
Another sub-category of the investigations task is ‘litigation/recoveries’. The sub-category accounts for 46.4% of the remuneration claimed in the application. The main tasks included in this sub-category are:
(a) internal meetings to discuss status of litigation matters;
(b) preparing briefs to solicitors;
(c) review of Court documents including pleadings, statements of claim, affidavits, mediation position papers and other Court documents received from the Defendants;
(d) liaising and negotiating with potential action funders regarding pursuable voidable transaction and insolvent trading claims;
(e) preparing Court application for approval of nominated funding agreement;
(f) collating discoverable documents, creditor claim data, expert and lay evidence in support of claims;
(g) compliance with discovery requirements and notices to produce documentation;
(h) liaising with solicitors and counsel regarding recovery actions, legal issues, security for costs and litigation strategy;
(i) conducting litigation budgeting and cost analysis and preparing forecast estimated outcomes;
(j) reviewing affidavits, consent orders, filed defences and other legal documentation; and
(k) attending two mediations.[36]
[36]Ibid, at [30] – [31].
The SPL states that the work performed in relation to this sub-category has been primarily undertaken by staff members at Director and Principal level with approximately 62.88% of work in this sub-category attributable to staff at these levels. This is because the work involved considering complex legal issues, instructing lawyers, considering legal advice, negotiating with third parties and making strategic decisions.[37]
[37]Ibid, at [32].
The administration category of work accounts for 19.93% of the remuneration claimed in the application. The main tasks performed in this category are:
(a) addressing incoming and preparing outgoing correspondence with various miscellaneous parties who are not creditors, including but not limited to current and former administrators, the Receiver, legal advisors, the Australian Tax Office, IT providers, insurers and Courts;
(b) responding to subpoenas and notice to produce; including review of e-discovery platform providers and discussions with IT service provider regarding arranging data ingestion, seeking digital books and records;
(c) preparation of litigation funding reporting notices for reimbursement of litigation costs;
(d) preparing correspondence opening and closing accounts;
(e) requesting bank statements and undertaking bank reconciliations;
(f) preparation of receipt and payment vouchers and processing transfers;
(g) correspondence with the bank regarding specific transfers;
(h) attending to statutory reporting obligations including preparation and lodgement of the annual administration return, Form 5602, with ASIC;
(i) preparing BAS lodgements;
(j) attendances by the SPL’s team regarding this application including the work to prepare his Second Remuneration Report and liaising with his solicitors in respect of the same; and
(k) identifying any insurance issues and engaging with specialists in this field where necessary.[38]
[38]Ibid, at [34].
The SPL states that the work performed in relation to this category was primarily undertaken by staff members at Manager level and below with approximately 80% of work in this category attributable to staff across these levels.[39]
[39]Ibid, at [35].
The creditors category of work accounts for 1.42% of the remuneration claimed in the application. The main tasks performed in this category are:
(a) reviewing and preparing letters to creditors (including the initial circular to all creditors upon appointment);
(b) receiving and responding to creditor and shareholder enquiries received in response to the circular and maintaining a log in respect of same; and
(c) maintaining creditor request logs.[40]
[40]Ibid, at [36].
The SPL states that the work performed in relation to this category was primarily performed by staff at Assistant Manager and below.[41]
[41]Ibid, at [37].
A summary of the remuneration claimed in the application broken down by staff member levels is set out in the table below:[42]
[42]Ibid, at [38].
Position
Total Hours
Total Hours (%)
Total Cost ($)
Average Hourly Rate
Appointee/Director/Principal
523.50
41.58%
$315,394.00
$602
Manager
129.30
10.27%
$64,650.00
$500
Supervisor/Assistant Manager
440.30
34.97%
$172,578.50
$392
Senior Accountant/Intermediate 2/Intermediate 1
130.60
10.37%
$39,724.00
$304
Bookkeeper
28.80
2.29%
$7,121.00
$247
Graduate
5.20
0.41%
$1,035.00
$199
Team Assistant
1.40
0.11%
$217.00
$155
Total
1,259.10
$600,719.50
$477
The table reveals that the majority of the work performed has been undertaken at the Appointee/Director/Principal level (41.58%) (with the majority of the work performed in the investigation/litigation category). The SPL states that this is appropriate because the work has been extremely complicated and predominantly involved providing instructions to lawyers, reviewing legal documents, considering legal advice and preparing evidence, and these tasks can only be responsibly undertaken by the SPL and the more senior members of his team.[43]
[43]Ibid, at [39].
The SPL states that administration tasks have been delegated to the less experienced staff whilst matters that raised significant or complex issues were performed above the Assistant Manager/Senior Accountant level.[44]
[44]Ibid, at [40].
Attached to the Remuneration Approval Report is a table setting out the applicable hourly charge out rates for the SPL and his staff, which includes a description of their title, including qualifications and experience. [45] The rates have increased slightly during the relevant period. The rates are still within the ‘market’ for Melbourne liquidators and are comparable to those charged by large firms of insolvency practitioners conducting insolvency administrations of above average size and complexity.
[45]Exhibit LAF2-3 to affidavit of Laurence Andrew Fitzgerald, sworn on 7 December 2022, 40 (‘Exhibit LAF2-3’).
The SPL and his staff have recorded the time each of them performed a task against the relevant category, the amount of time taken and a description of the work undertaken.[46] These are the timesheets referred to in paragraph 4 above.
[46]Ibid, 49 – 76.
The narrative for each entry is detailed and informative. The total number of entries in the timesheets is approximately 1,300. In reviewing the timesheets, I did not examine each and every entry. Instead, I arbitrarily selected ten from each page of the 25 page document that made up the timesheets, and of the ten on each page selected the amount charged was over $500. Each such entry was examined by me more closely to determine if the task being performed was undertaken by a person of the appropriate level of responsibility, whether the time taken was reasonable and whether the task performed was necessary in the conduct of the special purpose liquidation. I am satisfied of all those matters.
In my view, the evidence filed in support of the application, and in particular the Remuneration Approval Report (a lot of which is repeated in the SPL’s affidavit) and the timesheets, complies with the requirements of r 9.2.6 of the Rules and the standard described by cases that have dealt with Court approval of liquidators’ remuneration. The evidence establishes that the remuneration sought is prima facie fair and reasonable.
Application of the criteria prescribed by s 60-12 of the IPS
I now consider the matters mentioned in s 60-12 of the IPS which the Court is required to take into account in exercising the power to determine the administrators’ remuneration.
As set out above, the SPL, by the evidence relied upon by him, has made out a prima facie case that his claim for remuneration is fair and reasonable. In this regard, the evidence complies with the standard required by the Rules and described in such decisions as Thackray and Sakr Nominees Pty Ltd.[47] That evidence also addresses the matters set out in s 60-12(a) to (d) which collectively amount to an assessment as to whether the claim made is fair and reasonable.
[47]Thackray (n 5); Sakr Nominees Pty Ltd (n 6).
Sections 60-12(e) to (g) relate to complexity, dealing with extraordinary issues and the extent to which the SPL was required to accept a higher level of responsibility than is usually the case.[48] Section 60(j) relates to time properly taken in performing the work if it is worked out wholly or partly on a time-cost basis.[49]
[48]Insolvency Practice Schedule (Corporations) (n 4), s 60-12(e) – (g).
[49]Ibid, s 60-12(j)
The matters set out in sections 60(h), (i), (k) and (l) are not relevant to the application.[50]
[50]Ibid, s 60-12(h) – (i), (k) – (l).
The work performed by the SPL and his staff was different from a usual run of the mill liquidation. The work was concentrated and focused on investigations and the collection of evidence to support complicated legal proceedings brought by the SPL. These legal proceedings involved large amounts of money and I think it is fair to say that they would have been extremely document heavy. The documents that the SPL and his staff would have had to locate and forensically analyse would have been substantial. So too would have been the time (as is borne out by the time sheets) liaising with the lawyers retained by the SPL in a type of legal proceeding that can be difficult to prosecute. The appointment of the SPL as ordered by the Court, which was for the purpose of investigating and prosecuting claims by, or on behalf of, or for the benefit of, the company, called for a high degree of judgment, responsibility and knowledge.
The total amount of time spent by the SPL and his staff on investigations is equivalent, approximately, to one person working full time on investigations for 6 months. Given the volume of documents that would have been necessary to analyse in relation to a number of potential defendants, I do not think this amount of time is unreasonable.
The SPL seeks determination of his remuneration on a time basis for the reasons set out in his affidavit (by reference to an earlier affidavit) and for the reasons set out at pages 9 to 10 of the Remuneration Approval Report.[51] The SPL has, as set out in these reasons, provided a detailed account and detailed evidence of the time spent on various tasks together with a narrative (contained especially in the time sheets). From this material, the time spent on those tasks appears to be necessary and reasonable, and proportionate as to what was at stake and what was trying to be achieved by the prosecution of the claims against the former directors.
[51]Exhibit LAF2-3, 38 – 39.
There are no objectors to the remuneration claimed.
On an application of the relevant matters set out in s 60-10, I have concluded that there should be no reduction in the amount sought by the SPL in his performance of his obligations as ordered by the Court on 6 September 2018 and 26 October 2018 for the period 17 November 2020 to 21 October 2022.
Orders
I will make the following orders:
(a) pursuant to Rule 1.3 of the Supreme Court (Corporations) Rules 2013 (Corporations Rules) and Rule 2.04(1) of the Supreme Court (General Civil Procedure) Rules 2015, compliance with the requirements of Rule 9.2(2)(a) and Rule 9.2(4)(b) of the Corporations Rules is dispensed with;
(b) pursuant to Rule 9.2(4)(c) of the Corporations Rules the interlocutory process filed by the Applicant/Special Purpose Liquidator on 30 January 2023 be dealt with in the absence of the public and without attendance by or on behalf of the Applicant/Special Purpose Liquidator;
(c) pursuant to Rule 28A.06 of the Supreme Court (General Civil Procedure) Rules 2015, exhibit LAF2 -2 to the affidavit of Laurence Andrew Fitzgerald sworn on 7 December 2022 is to be marked ‘confidential’ on the electronic Court file and is not to be published or accessed except by order of the Court; and
(d) pursuant to 60-10 (1)(c) of the Insolvency Practice Schedule (Corporations), being Schedule 2 of the Corporations Act 2001 (Cth), it is determined that the Applicant to the Interlocutory Process filed with the Court on 30 January 2023, being the Special Purpose Liquidator appointed by the Court on 6 September 2018, is entitled to receive remuneration in the amount of $600,719.50 (exclusive of GST) for all work performed in relation to his appointment as Special Purpose Liquidator of the First Defendant, for the period 17 November 2020 to 21 October 2022 (excl).
SCHEDULE OF PARTIES
| S ECI 2018 01136 | |
| BETWEEN: | |
| ZIZIPHUS PTY LTD | First Plaintiff |
| CELTIC CAPITAL PTY LTD | Second Plaintiff |
| - v - | |
| PLUTON RESOURCES LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) | First Defendant |
| SAM ANDREW MARSDEN AND DERRICK CRAIG VICKERS IN THEIR CAPACITIES AS JOINT AND SEVERAL LIQUIDATORS OF PLUTON RESOURCES LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 114 561 732) | Second Defendant |
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