Re Solfire Pty Ltd (in liq) (No 2) - [1998] QSC 92

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane No.7862 of 1996

Before the Hon. Mr Justice Shepherdson

[Re Solfire Pty Ltd]

IN THE MATTER of the Corporations Law

and

IN THE MATTER of SOLFIRE PTY LTD
(ACN 010 680 494) (in liquidation)

CATCHWORDS: COMPANY LAW -

1. Application by members of company for
(a)termination or permanent stay of winding up
(b)review of fees and expenses of provisional liquidator and liquidator (including legal costs incurred by provisional liquidator and liquidator)
(c)orders that liquidator and provisional liquidator furnish proper itemised accounts of their respective costs and expenses including legal costs incurred by lawyers retained by them

2.Power to review liquidators fees and outlays - ss.473, 477(2) and (6) Corporations Law and Rules 96 and 97 of the Companies (Qld) Rules 1985 considered
3.Liquidators fees disclosed in “one line sums” - no evidence of how calculated - no evidence as to contents of relevant scale on which based
4.Solicitors fees - “one line bills” - no bill of costs in taxable form - liquidator and provisional liquidator swear these fees are reasonable - power of court to order delivery of solicitors bills of cost in taxable form

re: Queensland Forests Limited (in liquidation) (1966) Qld.R 180; followed
re: Burns Philp Investment Pty Ltd v Dickins (No 2) (1993) 31 NSWLR; followed

re: Beddoe; Downes v Cottam (1893) 1 Ch 547; followed
re: Walsh Halligan Douglas’ Bills of Costs (1990) 1 Qd.R 288;
re: Malleson Stewart Stawell and Nankivell v Williams (1930) VLR 410

Counsel:Mr EJ Morzone for the applicants
Mr MD Martin for the respondent liquidator

Solicitors:Clayton Utz Solicitors for the applicant
Baker Johnson Lawyers for the respondent liquidator

Hearing date: 29 January 1998

REASONS FOR JUDGMENT - SHEPHERDSON J.
Judgment delivered 14 May 1998

Neal Malone and Gregory John Willis who describe themselves as contributories of the above company have applied for the following orders:-

That the winding up of the above named company “Solfire” be terminated or permanently stayed.
Alternatively:
(a)upon the payment by the applicants to the trust account of Baker Johnson lawyers of amounts owing under judgment debts to La Belle Curtains and F Webb & Co Pty Ltd the winding up of Solfire be stayed;
(b) the winding up of Solfire be stayed:-
(i)      pending:
(1)the liquidator and provisional liquidator furnishing to the Court a proper itemised account of their respective costs and expenses (including their legal costs incurred with Baker Johnson lawyers in accordance with the Costs Act 1867) of and incidental to the winding up;
(2)the approval or review by the court of the costs and expenses of the liquidator and provisional liquidator (including their legal costs) of and incidental to the winding up; or
(ii)     until further order of the Court;
(c) the applicants be entitled to be heard upon the approval or review by the Court of the costs and expenses referred to sub-para.(b)(i) above;
(d) upon:
(i)      finalization of the matters referred to in sub-para.(b)(i) above
(ii)     the receipt of payment by the Applicants…

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: [1998] QSC 92
Decision Date: 14 May 1998

CaseChat Overview and Summary

Neal Malone and Gregory John Willis applied to the Supreme Court of Queensland for the winding up of Solfire Pty Ltd to be terminated or permanently stayed. The applicants also sought to have the fees and expenses of the provisional liquidator and liquidator reviewed. The applicants further sought an order that the solicitors retained by the liquidator and provisional liquidator furnish proper itemised accounts of their respective costs and expenses including legal costs. The application was heard by the Hon. Mr Justice Shepherdson. The applicants argued that the provisional liquidator and liquidator were not entitled to the fees claimed by them. The liquidator and provisional liquidators argued that the fees were reasonable. The court found that the provisional liquidator's fees could not be reviewed due to insufficient information. However, the court found that the liquidator's fees could be reviewed as the applicants were entitled to sufficient information to make an informed decision on the reasonableness of the fees. The court ordered that the liquidator and provisional liquidators furnish proper itemised accounts of their respective costs and expenses including legal costs. The winding up of the company was stayed pending the furnishing of the accounts and review of the fees.

Orders