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Re Sakr Nominees Pty Ltd

Re Sakr Nominees Pty Ltd

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Case Copied 29 May 2017 29 min read

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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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWSC 668
Decision Date: 29 May 2017

CaseChat Overview and Summary

The case of Re Sakr Nominees Pty Ltd involved an application by liquidators appointed to a company under the Corporations Act 2001 (Cth) seeking determination of their remuneration. The liquidators contended that the work they performed was not reasonably anticipated at the time of creditors' prospective approval of their remuneration, and thus, they were entitled to additional compensation. The court had to decide whether the liquidators' work, which was not initially anticipated, was reasonably necessary for the winding up of the company.

The primary legal issue before the court was whether the liquidators could claim additional remuneration for work that was not reasonably anticipated at the time of creditors' prospective approval. This involved interpreting the provisions of the Corporations Act, particularly section 473(b)(ii), which allows liquidators to apply to the court for determination of their remuneration. The court had to assess whether the additional work performed was reasonably necessary and whether it fell within the scope of the liquidators' duties as outlined in the Act.

The court found that the liquidators were entitled to additional remuneration for the work they performed, which was not reasonably anticipated at the time of creditors' prospective approval. The court reasoned that the liquidators had acted within the scope of their duties and that the additional work was necessary for the proper winding up of the company. The court considered the nature of the additional work, the circumstances under which it was performed, and whether it was reasonably necessary to achieve the objectives of the liquidation. The court concluded that the liquidators' actions were justified and that the additional work was reasonably necessary, thereby entitling them to the claimed remuneration.

The final orders of the court were that the liquidators were entitled to the additional remuneration they sought for the work performed, which was not reasonably anticipated at the time of creditors' prospective approval. The court determined that the liquidators had acted reasonably and within the scope of their duties, and that the additional work was necessary for the effective winding up of the company. The liquidators were thus granted the additional remuneration they had applied for.

Orders