Re Sakr Nominees Pty Ltd

[2017] NSWSC 668

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Sakr Nominees Pty Limited [2017] NSWSC 668
Hearing dates:	18 April 2017 and 5 May 2017
Decision date:	29 May 2017
Jurisdiction:	Equity - Corporations List
Before:	Black J
Decision:	The Court allows the liquidator’s claim for remuneration and will make orders for the release of the liquidator and deregistration of the company.
Catchwords:	CORPORATIONS – Winding up – Liquidators – Application by liquidator under Corporations Act 2001 (Cth) s 473(b)(ii) to determine remuneration – where additional work not anticipated at time of creditors’ prospective approval of remuneration – whether work performed by liquidator was reasonably necessary
Legislation Cited:	- Corporations Act 2001 (Cth), ss 473, 480 - Corporations and Other Legislation Amendment (Insolvency Law Reform) Regulation 2017 (Cth) - Corporations Regulations 2001 (Cth), reg 10.25.02(3)(g) - Insolvency Law Reform Act 2016 (Cth) - Supreme Court (Corporations) Rules 1999 (NSW), rr 7.5(3)–7.5(5)
Cases Cited:	- Macks v Maka [2015] SASC 200; (2015) 110 ACSR 279 - Re AAA Financial Intelligence Ltd (in liq) (No 2) [2014] NSWSC 1270 - Re Banksia Securities Ltd (in liq) (recs and mgrs. apptd) [2017] NSWSC 540 - Re Clout (in his capacity as liquidator of Mainz Developments Pty Ltd) (in liq) [2016] NSWSC 1146; (2016) 115 ACSR 459 - Re Gramarkerr Pty Ltd (No 2) [2014] NSWSC 1405 - Re Gramarkerr Pty Ltd [2014] NSWSC 1299 - Re Idylic Solutions Pty Ltd atf Super Save Superannuation Fund [2016] NSWSC 1292; (2016) 115 ACSR 581 - Re Independent Contractor Services (Aust) Pty Ltd (in liq) (No 2) [2016] NSWSC 106; (2016) 305 FLR 222 - Re Korda; Re Stockford Ltd [2004] FCA 1682; (2004) 140 FCR 424 - Re One.Tel Ltd (in liq) [2014] NSWSC 1892 - Re Primespace Property Investment Limited (in liq) [2016] NSWSC 1821 - Re RR Impex Pty Ltd (in liq) [2013] NSWSC 1667 - Re Sakr Nominees Pty Ltd [2016] NSWSC 709 - Sanderson, as liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr [2017] NSWCA 38 - Templeton v Australian Securities and Investments Commission [2015] FCAFC 137; (2015) 108 ACSR 545 - Thackray v Gunns Plantations Ltd [2011] VSC 380; (2011) 85 ACSR 144 - Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96 - Warner, Re GTL Tradeup Pty Ltd (in liq) [2015] FCA 323; (2015) 104 ACSR 633
Category:	Principal judgment
Parties:	Clifford Sanderson as liquidator of Sakr Nominees Pty Limited (Plaintiff) Marie Sakr (First Defendant) Norman Sakr (Second Defendant) Antoinette Sakr (Third Defendant) Tony Sakr (Fourth Defendant) Sakr Bros Pty Limited (in liquidation) (Fifth Defendant)
Representation:	Counsel: L E Hulmes (Plaintiff)   Solicitors: Colin Biggers & Paisley (Plaintiff)
File Number(s):	2015/361976

Judgment

1. By Originating Process filed on 9 December 2015, the Plaintiff, Mr Clifford Sanderson as liquidator of Sakr Nominees Pty Ltd (in liq) (“Company”) sought an order under s 473(3)(b)(ii) of the Corporations Act 2001 (Cth) that his entitlement to remuneration as liquidator of the Company for the period 3 November 2014 to 12 November 2015 be determined as $38,954.30 inclusive of GST, and that his further remuneration for the period from that date up to and including the deregistration of the Company be determined as $24,623.50 inclusive of GST. Mr Sanderson also sought several other orders which were not in issue before me, and an order under s 480(d) of the Corporations Act that he be released as liquidator of the Company and that the Australian Securities and Investments Commission (“ASIC”) deregister the Company.

Factual background and affidavit evidence

2. By way of background, the Company was wound up on 3 September 2012 and Mr Sanderson was appointed as its liquidator. The Company’s only assets were then three adjacent properties in Sylvania North in New South Wales. The three properties owned by the Company were sold by Mr Sanderson for the sum of $3,720,000 and settlement occurred in October 2013, generating net proceeds after rates, taxes and legal fees, and after paying out mortgagees, of $1,650,650 (Sanderson 10.4.17 [59]). At a meeting of creditors on 17 October 2013, creditors approved Mr Sanderson’s fees for the period from 3 September 2012 to 30 September 2013 in the sum of $85,505 and, by prospective approval, for the period 1 October 2013 to 31 October 2014 in the sum of $25,000 (Sanderson 10.4.17).

3. Following a proof of debt process between July and October 2014, Mr Sanderson paid out creditors in full in the amount of $904,070 in December 2014 (Sanderson 10.4.17 [75], [84]), with amounts then paid to Sakr Bros Pty Ltd (in liq) (“Sakr Bros”) of $450,255, to Sakr Family Pty Ltd (in liq) (“SFPL”) of $341,242 and to the Australian Taxation Office of $112,573.

4. Mr Sanderson’s report to creditors issued 7 November 2014, in anticipation of a second meeting of creditors on 25 November 2014, included a remuneration report and Mr Sanderson there sought approval for his fees to the completion of the liquidation in an additional amount of $34,314, for the period from 1 October 2013 to 31 October 2014 (in addition to the amount of $25,000 that had previously been approved) and by way of prospective approval for the period from 3 November 2014 to the end of the liquidation in the amount of $34,870 (Sanderson 10.4.17 [134]). Mr Sanderson had therefore received approval from creditors for remuneration totalling $179,689 exclusive of GST by 25 November 2014.

5. Further issues arose immediately before and after the meeting of creditors in November 2014. In mid-November 2014, members of the Sakr family and associated entities provided additional information in support of rejected proofs of debt. Mr Sanderson subsequently sought legal advice in relation to that information, because of concerns as to the authenticity of the documents and the validity of the claims (Sanderson 10.4.17 [87]ff). Mr Sanderson also undertook a comprehensive analysis of shareholdings in order to settle the list of contributories, which included instructing solicitors as to that matter and seeking Senior Counsel’s advice. Mr Sanderson’s evidence is that the issue as to the identity of shareholders in the Company became more involved and more document intensive than he had anticipated when he prepared his estimate of remaining costs in the liquidation, provided to the creditors’ meeting in late November 2014 (Sanderson 10.4.17 [119]–[120]).

6. Broadly, the financial result of the liquidation (as set out in a summary prepared by Mr Sanderson (MFI1)) was that the sale of properties generated realisations of $3,720,000; payments to secured creditors in respect of the properties were made of approximately $1,921,647; a payment was made to unsecured creditors, including the Australian Taxation Office, of $904,069.88; a dividend was paid to shareholders of approximately $427,903.69; Mr Sanderson’s remuneration, as approved by creditors, was $179,689 exclusive of GST or $197,657.90 inclusive of GST; and approval is now sought from the Court for further remuneration quantified as $57,798 exclusive of GST or $63,577.80 inclusive of GST.

7. Mr Sanderson’s application for approval of his remuneration was first heard before Brereton J on 22 February 2016. Mr Sanderson there relied, and also relied in the application before me, on his first affidavit dated 12 November 2015 which set out some of the factual background to which I have referred above. Mr Sanderson’s evidence in that affidavit was that he undertook further work after 3 November 2014 (to which date, as I noted above, his remuneration had been approved by creditors and paid) for which he claimed remuneration of $70,283. He observed that:

“Of this, $34,870 was approved for payment at the meeting of creditors on 25 November 2014, leaving a balance of $35,413 which has not been submitted to creditors for approval, and which can no longer be submitted for creditors’ approval because all creditors fees have been paid in full. …”

Mr Sanderson’s evidence acknowledged that this claim for further remuneration sought to increase the amount of his remuneration which had been capped at the amount approved by creditors at the creditors’ meeting on 25 November 2014 at $34,870.

8. Mr Sanderson’s first affidavit set out the steps which he had taken in the liquidation to 3 November 2014, and summarised the work and time costs attributable to work done by his staff from 3 November 2014 to 12 November 2015, referable to administration in the amount of $7,708; “creditors: nondividend related” in the amount of $13,877; “creditor dividend” in the amount of $12,635 and “shareholder distribution” in the amount of $36,063. Those descriptions were expanded, slightly, by short form descriptions of matters involved in them, such as “correspondence” or “document maintenance/file review” or “creditor enquiries”. That affidavit was supported by an exhibit which was said to include a detailed description of the work carried out by Mr Sanderson and his staff from 3 November 2014 to the date of the affidavit.

9. Mr Sanderson’s first affidavit also set out Mr Sanderson’s estimate of future fees that would be required to make his application to distribute the surplus and seek his release as liquidator, totalling $24,623 inclusive of GST. In summary, Mr Sanderson there sought the Court’s approval for his fees as liquidator totalling $35,413 exclusive of GST or $38,954.30 inclusive of GST to 12 November 2015 and totalling $22,385 exclusive of GST or $24,623.50 inclusive of GST to the end of the liquidation, together with existing and future disbursements to which it is not necessary to refer. Those claims correspond to the total of $57,798 exclusive of GST or $63,577.80 inclusive of GST to which I referred above. A further affidavit of Mr Sanderson dated 23 December 2015 confirmed the service of his remuneration application on interested parties and the absence of objection by those parties.

10. It seems to me that Mr Sanderson’s affidavit of 12 November 2015 provided assistance in determining the amounts claimed by Mr Sanderson and how they were made up, but little basis for determining whether they were reasonably incurred, and, in particular, why the liquidation of a relatively small company which held three properties had resulted in claims for remuneration by Mr Sanderson in the order of $260,000 inclusive of GST.

11. In his judgment in Re Sakr Nominees Pty Ltd [2016] NSWSC 709, Brereton J noted that the evidence before him did not disclose that there was anything particularly difficult or challenging in respect of the proof of debt process in that liquidation, although he had been informed and accepted that proofs of debt were disputed. His Honour recognised (at [25]) that additional work had been required by the emergence of an issue about the identity of contributories and the necessity to settle a list of contributories. However, it appears that the evidence before Brereton J did not address the difficulties which had arisen in respect of settling a list of contributories in the detail in which that evidence has now been addressed in the application before me. His Honour made orders granting leave to Mr Sanderson to distribute the surplus and approving payment of disbursements and determined Mr Sanderson’s remuneration for the period from 3 November 2014 to the finalisation of the liquidation in the amount of $20,000, inclusive of GST, rather than in the higher amount of $63,577.80 inclusive of GST that had been sought; and Mr Sanderson’s application for release and deregistration was deferred.

12. Mr Sanderson appealed from the decision of Brereton J, by leave, and that appeal was allowed by the Court of Appeal in Sanderson, as liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr [2017] NSWCA 38, which remitted the matter to the Equity Division. I will refer further to the Court of Appeal’s decision below. The Court of Appeal’s decision did not indicate any view that the evidence before Brereton J had been sufficient to establish Mr Sanderson’s claim for remuneration on a time basis.

13. Mr Sanderson now seeks to establish that that remuneration should be quantified on a time basis, in the amounts for which he had originally sought approval in the proceedings before Brereton J, and his application for approval of his remuneration on that basis was originally listed before me on 18 April 2017. Mr Sanderson there relied on a further affidavit dated 10 April 2017, which significantly expanded the evidence beyond that which he had led before Brereton J. He there referred to the staff members who had undertaken work in the matter and their qualifications and experience, and expressed the view that the staff members working on the liquidation had an appropriate mix of experience for the issues involved in it. Mr Sanderson there set out the history of the liquidation, and indicated that it was more complex than would ordinarily have been expected for a company of the relevant character. He also led evidence that the liquidation was delayed because the Sakr family had originally indicated an intention to seek a stay or termination of the liquidation, which had not proceeded; that he did not receive books or records of the Company; he referred to dealings with three separate lenders in respect of the relevant properties and to delays in the process of sale over the properties, including the fact that the purchaser introduced by the Sakr family to him ultimately did not proceed to complete a purchase of the properties; and he referred to the ultimate sale of the properties to a third party in October 2013. Mr Sanderson also referred to the steps which were taken to complete the Company’s tax returns, where it had not previously lodged those returns, and to the need to recreate the Company’s financial records to lodge those returns where he had not had access to its books and records. Mr Sanderson also referred to the steps which were taken in the ordinary course of the Company’s liquidation and to the steps which were taken to deal with proofs of debt by unsecured creditors. A large part of this work was undertaken prior to November 2014, in the period for which Mr Sanderson’s remuneration had already been approved by creditors.

14. Mr Sanderson’s further affidavit dated 10 April 2017 also referred to steps which had taken place before and after the creditors’ meeting on 25 November 2014 which approved his remuneration to that point and his future remuneration to the completion of the liquidation, including the lodgement of additional documents in support of some of the rejected proofs of debt and an issue raised as to proofs of debt lodged by Sakr Bros and SFPL by their liquidators. Mr Sanderson referred to steps that he needed to take to settle the list of contributories, in circumstances that there was a dispute whether Sakr Bros was a contributory of the Company, and documents had previously been lodged with ASIC purporting to extinguish its shareholding in the Company. The bulk of the additional time spent by Mr Sanderson and his staff after that date related to his investigations in respect of other proofs of debt and the identification of the Company’s contributories. A further proof of debt was also submitted by Ms Antoinette Sakr on 21 May 2015 and withdrawn not long after on 15 June 2015. The evidence suggested, and Ms Hulmes, who appeared for Mr Sanderson, accepted in oral submissions, that the amount of additional time referable to the further proof of debt lodged by Ms Antoinette Sakr was not material. Mr Sanderson’s evidence was that he had not anticipated those additional issues at the time he had issued his report to creditors prior to the meeting on 25 November 2014 which approved his further his remuneration to the end of the liquidation in the amount of $34,870.

15. Mr Sanderson also led additional evidence in his affidavit dated 10 April 2017 as to the process adopted by his firm for time recording and costs, for his review of time charges, and as to his firm’s hourly rates, which he indicated had not increased for staff since 2008 and had not increased for him since 2010. Mr Sanderson also led evidence that compared the estimates which he had made for the work which would be required to complete the liquidation, in November 2014, and the work which was actually required after that date. An exhibit to Mr Sanderson’s affidavit dated 10 April 2017 included a work-in-progress report that recorded actual work undertaken, actual time spent, the categories of tasks and the person who undertook the tasks for that period.

16. Mr Sanderson also led evidence, in his affidavit dated 10 April 2017, comparing his estimate of future fees from 13 November 2015 to the end of the liquidation with actual work undertaken after that date and pointed to the fact that additional work had been required because the liquidation had continued for longer than he had expected, including by reason of his appeal in respect of his remuneration. While Mr Sanderson had additional claims for remuneration in respect of that additional period, it is not necessary to address them in this application, because Mr Sanderson did not pursue any claim for remuneration beyond the amount that had originally been sought in the application before Brereton J and the Company’s assets would likely not be sufficient to support a larger claim.

17. Mr Sanderson also led evidence in his 10 April affidavit that his total remuneration claim, across the whole of the liquidation, was $237,487, equating to 6.4% of the realisations in the liquidation. That evidence addressed the recognition in the case law that a comparison of the fees incurred and the total assets realised will provide at least some indication of whether the fees claimed are proportionate. In the ordinary course, however, that percentage might still be relatively large, had the liquidation not involved the additional complexities which are disclosed by Mr Sanderson’s further evidence in this application.

18. It seems to me that Mr Sanderson’s further affidavit dated 10 April 2017 did not provide sufficient justification of the extent of the additional work that had been required in respect of the additional issues that had arisen in the winding up after November 2014, or why the additional work undertaken was proportionate to the complexity or importance of those additional issues. Although that affidavit exhibited detailed work-in-progress schedules, arranged in chronological order, it is not the Court’s role to review such schedules to seek to deduce which tasks relate to which matters, and why they were appropriately undertaken, where that matter was not addressed by adequate evidence led by the liquidator who seeks approval of his remuneration. Had the evidence remained as it stood when the matter was first listed before me on 18 April 2017, I would not have been satisfied that Mr Sanderson had established that the additional remuneration that he claimed was reasonable on a time basis. I would have adjourned that application, had Mr Sanderson asked me to do so, to allow him an opportunity to lead further evidence to support it, or dismissed it if he had sought judgment on that occasion. Following exchanges in the course of submissions on that date, Mr Sanderson sought an adjournment of the application, part heard, to allow him to lead additional evidence to support his claim for further remuneration on a time basis.

19. By his further affidavit dated 4 May 2017, and an exhibit to that affidavit, Mr Sanderson substantially addressed the deficiencies in his earlier evidence, as they had emerged at the hearing on 18 April 2017. By that affidavit, Mr Sanderson explained the manner in which he and his staff members allocated time to work within specified categories, including administration, assets, creditors, investigations, dividends–creditors, dividends–shareholders and litigation–remuneration applications, and to further subcategories of work which were used in respect of those categories, at a level of detail that had not been addressed in his earlier affidavit evidence. Mr Sanderson also led evidence, in the exhibit to that affidavit, of the work-in-progress incurred by his firm, organised chronologically to indicate the work done by Mr Sanderson and the members of his staff, Mr Cook and Mr Hui, and other staff members, in relation to the liquidation as a whole. That evidence also isolated the work which had been done by individual staff members in respect of the particular categories of work that are relevant in this application. A summary was also provided of the hours spent and fees incurred by each person, in relation to each category of work, for the relevant time periods, and more detailed information was provided as to work-in-progress recorded in the seven categories identified above in the period from 3 November 2014, and of the particular work involved in dealing with the further proof of debt submitted by Ms Antoinette Sakr to which I referred above. Mr Sanderson also provided an analysis of the time that had been spent by staff members, including Mr Cook, Mr Hui and other staff members, in respect of the liquidation, and noted that the time incurred by those staff members was consistent with what he would have expected, involving broadly similar total fees incurred by Mr Sanderson personally, Mr Cook as senior manager and other staff, reflecting the fact that a greater number of hours of work was done by those staff with lower charge-out rates than Mr Sanderson.

8. Mr Sanderson also provided a further analysis of work undertaken in the period from November 2014, which he had not anticipated at the time of preparing his estimate in November 2014, in relation to additional documents provided and submissions made as to rejected proofs of debt (a matter which had been previously addressed, to some extent, in paragraphs 87–91 of his 10 April affidavit); work associated with settling the list of contributories (which had been addressed in paragraphs 105–118 of his 10 April affidavit); and work associated with the further proof of debt submitted by Ms Antoinette Sakr (which had been addressed in paragraphs 102–104 of his 10 April affidavit). Mr Sanderson also referred to the impact (previously noted in paragraph 148 of his 10 April affidavit) of the fact that the liquidation had continued for a longer period, largely by reason of his remuneration application and the appeal involved in that application. Mr Sanderson’s analysis of those issues also set out the work which had been undertaken by particular staff members in respect of those issues, supported by work-in-progress records, and seems to me to have justified the allocation of work to those staff members and the extent of work done. Examples of the work product, including checklists for the proof of debt review, a checklist of documents reviewed in relation to the identity of contributories, and Mr Sanderson’s summary of the shareholding structure of the Company, prepared following that review, were also led in evidence.

9. Mr Sanderson also fairly accepted in that further affidavit that, at the time he had prepared his original estimate of the costs which would be incurred after 3 November 2014, he had not appreciated the steps which were required in seeking Court approval for a distribution of a surplus to contributories, in circumstances that he had not previously been involved in a court-ordered liquidation in which such a surplus was available. I readily accept that liquidations of companies that have a surplus of assets over liabilities are perhaps relatively uncommon. Mr Sanderson also led evidence addressing the steps that had been taken in respect of remuneration that he had originally drawn in accordance with Brereton J’s determination made on 22 November 2016, which had been set aside by the Court of Appeal. That remuneration was, appropriately, refunded to the Company’s bank account prior to the determination of this application, after that matter was raised by the Court at the hearing on 18 April 2017.

The principles applicable to Mr Sanderson’s claim for remuneration

22. As I noted above, Mr Sanderson’s remuneration application is brought under s 473(3)(b)(ii) of the Corporations Act which permits the Court to approve a liquidator’s further remuneration, where it is not possible for creditors to do so, where they have been paid in full.

23. I will first refer, relatively briefly, to the principles applicable to the assessment of the amount of an administrator’s or liquidator’s remuneration. I have drawn on my summary of those principles in Re Primespace Property Investment Limited (in liq) [2016] NSWSC 1821 and on the Court of Appeal’s decision in Sanderson, as liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr above in doing so. A liquidator is entitled to reasonable remuneration for his or her services and the liquidator bears the onus of establishing that the amount of remuneration they seek is fair and reasonable and, in determining a liquidator’s reasonable remuneration, the Court will have regard to the factors specified in s 473(10) of the Corporations Act, to which I refer further below. The Court must bring an independent mind to bear on the question whether the remuneration sought by a liquidator is fair and reasonable; the liquidator must lead evidence in sufficient detail that the Court can determine that question; and the 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: Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96 at 102–103. 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: Thackray v Gunns Plantations Ltd [2011] VSC 380; (2011) 85 ACSR 144 at [64]; Macks v Maka [2015] SASC 200; (2015) 110 ACSR 279 at [52]–[66]; Warner, Re GTL Tradeup Pty Ltd (in liq) [2015] FCA 323; (2015) 104 ACSR 633 at [70]–[71]; Templeton v Australian Securities and Investments Commission [2015] FCAFC 137; (2015) 108 ACSR 545.

24. Most decisions in both State Supreme Courts and in the Federal Court of Australia have applied time costing as at least the starting point for a calculation of remuneration, although those decisions also emphasise the need for proportionality between the cost of the work done and the value of the services provided: Venetian Nominees Pty Ltd v Conlan above; Templeton v Australian Securities and Investments Commission above; Warner, Re GTL Tradeup Pty Ltd (in liq) above. There has been a degree of concern as to time-based remuneration, over a considerable period, although it must be accepted that remuneration on that basis is now more common. I reviewed the relevant authorities, including the observations of Finkelstein J in Re Korda; Re Stockford Ltd [2004] FCA 1682; (2004) 140 FCR 424, and subsequent decisions in this Court echoing the same concern, in Re Idylic Solutions Pty Ltd atf Super Save Superannuation Fund [2016] NSWSC 1292; (2016) 115 ACSR 581 at [27]–[50] and Gleeson JA has similarly viewed those cases in Re Banksia Securities Ltd (in liq) (recs and mgrs apptd) [2017] NSWSC 540 at [38]ff. Several recent decisions, of which the previous decision of Brereton J in this case was one, have emphasised the significance of the percentage that a liquidator’s remuneration bears to the level of asset realisations achieved, and applied percentages of recoveries where time-based calculations would have led to unreasonable results: Re AAA Financial Intelligence Ltd (in liq) (No 2) [2014] NSWSC 1270; Re Gramarkerr Pty Ltd [2014] NSWSC 1299; Re Gramarkerr Pty Ltd (No 2) [2014] NSWSC 1405; Re Independent Contractor Services (Aust) Pty Ltd (in liq) (No 2) [2016] NSWSC 106; (2016) 305 FLR 222; Re Sakr Nominees Pty Ltd above. A percentage of realisations can also be used as a test of whether remuneration claims brought by a liquidator on a time costing basis are reasonable: Re Clout (in his capacity as liquidator of Mainz Developments Pty Ltd) (in liq) [2016] NSWSC 1146; (2016) 115 ACSR 459; Re Idylic Solutions Pty Ltd atf Super Save Superannuation Fund above.

25. In Sanderson, as liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr above, Bathurst CJ (with whom the other members of the Court of Appeal agreed) observed (at [54]) that the onus is on a liquidator to establish that the remuneration claimed is reasonable, and it is the Court’s function to determine that remuneration by considering the material provided to it and bringing an independent mind to bear on the relevant issues; that many of the factors specified in s 473(10) of the Corporations Act have the concept of proportionality as an underlying theme, and that concept is an important consideration in determining whether remuneration is reasonable, so that the work done must be proportionate to the difficulty and importance of the task in the context in which it needs to be performed (at [55]); and that the fact that work does not increase the funds available for distribution to creditors or contributories does not mean that the liquidator is not entitled to be remunerated for it, where it was reasonable to carry out that work and the amount charged is reasonable (at [57]–[58]). The Court of Appeal’s decision in Sanderson, as liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr above does not prefer any of the particular approaches to remuneration to which I have referred above to any other of those approaches and, in particular, does not require a time-based approach to remuneration to be adopted in preference to percentage-based approach to remuneration. Whether time-based remuneration or a percentage of recoveries is appropriate in a particular case will depend, in part, on the basis on which the liquidator puts his or her application for remuneration; in part, on the view taken by any persons who oppose the remuneration application; and, in part, the view taken by the Court.

26. In this case, Ms Hulmes points to Mr Sanderson’s evidence that he considers the work performed to date in the liquidation was reasonable and necessary and that the remuneration claimed and disbursements incurred in the conduct of the liquidation were reasonable (Sanderson 10.4.17 [133]). Ms Hulmes points to Mr Sanderson’s evidence that the liquidation was more complex and challenging than he would have expected in relation to a company of this character (Sanderson 10.4.17 [18]). Ms Hulmes also points to Mr Sanderson’s evidence that the work performed from November 2014 to the anticipated conclusion of the liquidation was not anticipated or was of increased scope from what Mr Sanderson had expected as at November 2014. Ms Hulmes acknowledges that the work performed by Mr Sanderson did not lead to an increase in the funds available for the liquidation, but submits that it was necessary and proper to ensure that creditor claims were properly considered, questions over the shareholding of Sakr Bros were addressed accurately and a list of contributories was properly prepared. Ms Hulmes also points out that Mr Sanderson had advised creditors of his proposal to charge on a time basis and of the rates that were proposed at the commencement of the liquidation abd refers to Mr Sanderson’s evidence as to the constitution of the team in place for the liquidation (Sanderson 10.4.17 [13]); refers to Mr Sanderson’s evidence as to the time recording processes adopted by Mr Sanderson’s firm (Sanderson 10.4.17 [125]ff); and points out that the time costs incurred by Mr Sanderson in respect of the liquidation will ultimately significantly exceed the amount in relation to which approval has been obtained or is now being sought, partly by reason of the length of the liquidation and partly because of additional fees incurred in respect of his appeal from Brereton J’s judgment and this further hearing of his application.

27. I turn now to the factors specified in s 473(10) of the Corporations Act, the importance of which was emphasised by the Court of Appeal in Sanderson, as liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr above. Those factors include whether a liquidator’s claimed remuneration is reasonable, taking into account all or any of specified matters, including, first, the extent to which the work performed or likely to be performed by the liquidator was reasonably necessary; the period during which the work was, or is likely to be, performed and the quality and complexity of the work. I am satisfied, on the basis of the additional evidence that has now been led in the application before me, that the work performed by Mr Sanderson was reasonably necessary and the work likely to be performed by him to complete the liquidation is also likely to be reasonably necessary; the period during which that work was performed was extended, partly by additional matters raised by members of the Sakr family, and partly by the difficulty in identifying contributories and partly by the difficulties that arose in Mr Sanderson’s remuneration application, after November 2014. I am satisfied that the work performed by Mr Sanderson has been of adequate quality and that there has been some additional complexity in the matter, by reason of the issues as to the identities of contributories.

28. The Court is also to have regard to whether the liquidator was or is likely to be required to deal with extraordinary issues, or accept a higher level of risk or responsibility than is usually the case; the value and nature of any property dealt with, or likely to be dealt with, by the liquidator; whether the liquidator was, or is likely to be, required to deal with other insolvency practitioners; and the number, attributes and behaviour, or the likely number, attributes and behaviour, of the Company's creditors. Mr Sanderson has not been required to deal with extraordinary issues or accept a higher level of risk or responsibility than is usually the case. I have had regard to the value and nature of the property that was dealt with by Mr Sanderson, which is relevant to the question of proportionality. Mr Sanderson was required to deal with other liquidators, in respect of other entities of companies associated with the Sakr family, and had to deal with claims by, and conduct of, members of the Sakr family which are likely to have increased the cost of the liquidation.

29. If the remuneration is ascertained, in whole or in part, on a time basis, the Court is also to have regard to the time properly taken, or likely to be properly taken, by the liquidator in performing the work; and whether the total remuneration payable to the liquidator is capped. I am satisfied that the evidence now led by Mr Sanderson provides sufficient information for the Court properly to assess his claim for remuneration. I have not undertaken a line-by-line review of the bill narratives, but have reviewed them in a broad way, and considered whether they are consistent with Mr Sanderson’s affidavit evidence and other evidence led in support of the claim for remuneration. I adopted the same approach in Idylic Solutions above at [58] and Gleeson JA took the same course in Re Banksia Securities Ltd above at [48]. On balance, having regard to the additional evidence which is now before me, it seems to me that the additional amount of remuneration claimed by Mr Sanderson can properly be allowed on a time basis and is reasonable.

30. It is also appropriate to proceed on the basis that, where ASIC has been given notice of this application and has not intervened in it, nothing in Mr Sanderson’s claim for remuneration requires regulatory intervention or warrants the making of submissions by it before the Court: Idylic Solutions Pty Ltd as trustee for Supersave Superannuation Fund above at [6]; Re Banksia Securities Ltd (in liq) (recs and mgrs apptd) above at [23].

31. In the result, I have therefore allowed Mr Sanderson additional remuneration on a time basis. I should note, however, that in some cases and possibly in this case, the amount of remuneration ultimately recoverable by a liquidator on a time basis, after deducting the costs of leading adequate evidence to establish it, may be less than the amount that may have been allowed on a percentage basis on the basis of less detailed evidence. I should also note, for completeness, that Mr Sanderson’s application was brought under s 473 of the Corporations Act which was substantially amended by the Insolvency Law Reform Act 2016 (Cth). It is not necessary to deal with those amendments, or the provisions dealing with the remuneration of liquidators and other external administrators introduced in Div 60 of the Insolvency Practice Schedule (Corporations) by the Insolvency Law Reform Act, since the effect of those amendments was deferred to 1 September 2017 by reg 10.25.02(3)(h) of the Corporations Regulations 2001 (Cth), introduced by the Corporations and Other Legislation Amendment (Insolvency Law Reform) Regulation 2016 (Cth).

Mr Sanderson’s application for release as liquidator

32. Mr Sanderson also seeks an order under s 480(d) of the Corporations Act that he be released as liquidator of the Company and that ASIC deregister the Company. By his affidavits dated 10 and 18 April 2017, Mr Sanderson addressed the matters referred to in r 7.5(3) of the Supreme Court (Corporations) Rules 1999 (NSW) in respect of an application for release of a liquidator. He also led evidence, as required by r 7.5(4) of the Supreme Court (Corporations) Rules that, to the best of his belief, there had been no act done or default made by him in the administration of the Company’s affairs or otherwise in relation to his conduct as liquidator that was likely to give rise to any liability to the Company or any of its creditors or contributories, and that he was not aware of any claim by any person that there had been such an act or default. Mr Sanderson also led evidence as to the Company’s financial position and his receipts and payments as required by r 7.5(5) of the Supreme Court (Corporations) Rules and also led evidence that the Defendants and ASIC had been served with his affidavit dated 10 April 2017 and the submissions made in support of his remuneration application and he had received no objection to that application. There was also no appearance by the persons served, or by ASIC, when the application was heard.

33. Ms Hulmes submits that it is appropriate for an order for Mr Sanderson’s release and the deregistration of the Company to be made at this stage, where Mr Sanderson has realised all of the Company’s property, distributed a final dividend to creditors, adjusted the rights of contributories among themselves and made a final distribution to contributories. The amount remaining in the Company’s bank account, including the amount reimbursed by Mr Sanderson after the appeal in respect of his remuneration approved by Brereton J, and the amount of an imminent GST refund in the order of $63,577, are not likely to exceed Mr Sanderson’s claim for remuneration and disbursements incurred in respect of this application. Ms Hulmes points out that no further steps will be required in the liquidation, once Mr Sanderson’s remuneration has been paid, to the extent that funds are available, and the balance written off.

34. I reviewed the relevant authorities in respect of an application for release as a liquidator in Re RR Impex Pty Ltd (in liq) [2013] NSWSC 1667 (“RR Impex”) and subsequently in Re One.Tel Ltd (in liq) [2014] NSWSC 1892. As I noted in RR Impex above at [3], s 480(d) of the Corporations Act implies that, once the Court is satisfied that relevant notifications have been given, no creditors have objected to a liquidator’s release or raised any concern as to the performance of his or her duties, and the other evidence contemplated by the Supreme Court (Corporations) Rules is placed before the Court, then the Court would ordinarily make an order releasing the liquidator unless any reason emerges why it should not do so. I am satisfied that such an order should be made in this case, for those reasons.

35. Strictly, an order for release would ordinarily only be made after all steps in the liquidation had been completed. In this case, the balance of Mr Sanderson's remuneration and remaining costs are still to be paid, which will exhaust the remaining assets in the liquidation. There is no utility in my deferring making an order for release until that is done, given the small amount involved, and the fact that the Court can be comfortable that Mr Sanderson will attend to the relevant steps. However, the Court should not make an order for release that is effective immediately, where those steps still need to be attended to. In the circumstances, the practical course, which I will take, is to make an order for release, but to stay that order for five weeks from the hearing on 5 May 2017, to 13 June 2017, which will allow the remaining steps by way of payment of remuneration and any remaining costs to be undertaken by Mr Sanderson before the order for release becomes effective.

Orders

36. I direct Mr Sanderson to bring in short minutes of order to give effect to this judgment within 21 days.

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Decision last updated: 30 May 2017