Re Upmarket Services Australia Pty Ltd (in liq)

The matter in Re Upmarket Services Australia Pty Ltd (in liq) involved an application by the liquidator, Upmarket Services Australia Pty Ltd, for approval of their remuneration. The case was heard in the Supreme Court of New South Wales. The primary legal issue was whether the Court should apply the Insolvency Practice Schedule (Schedule 2 to the Corporations Act 2001 (Cth)) or section 473 of the Corporations Act 2001 (Cth) in determining the remuneration of the liquidator.

The Court considered whether the Insolvency Practice Schedule applied to the liquidator’s remuneration, given that the liquidator was appointed prior to the commencement date of the new provisions concerning remuneration in Division 60 of the Practice Schedule. It was common ground between the parties that the Practice Schedule applied to this case, rather than section 473 of the Act. The Court agreed, noting that section 473 applied to liquidators appointed by the Court or in a winding up in insolvency, whereas the Practice Schedule applied to liquidators appointed in a voluntary winding up.

In making its decision, the Court referred to relevant sections of the Insolvency Practice Schedule, including sections 90-15 and 90-20, and Division 60. The Court also noted that the Practice Schedule defines an external administrator to include liquidators and that a company is taken to be under external administration on certain events, including the appointment of a liquidator. Section 60-10 of the Practice Schedule was relevant in this case, and the Court was required to have regard to whether the remuneration was reasonable, taking into account all relevant matters.

The Court approved the liquidator’s remuneration in a reduced amount, having regard to the reasonable remuneration criteria as set out in the Practice Schedule. It also noted that the Court’s approach would be the same regardless of which provisions applied. The liquidator’s remuneration was approved in a reduced amount, reflecting the Court's consideration of the reasonableness of the remuneration.