Re Western Port Holdings Pty Ltd - [2018] VSC 352

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2017 00123

IN THE MATTER of WESTERN PORT HOLDINGS PTY LTD (TRADING AS MAKESAFE TRAFFIC MANAGEMENT) (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) (ACN 085 780 150)

WESTERN PORT HOLDINGS PTY LTD (TRADING AS MAKESAFE TRAFFIC MANAGEMENT)(SUBJECT TO A DEED OF COMPANY ARRANGEMENT) (ACN 085 780 150)
(and others according to the attached schedule)

Plaintiffs

---

JUDGE:	Matthews JR
WHERE HELD:	Melbourne
DATE OF HEARING:	30 January 2018 and 6 June 2018
DATE OF RULING:	27 June 2018
CASE MAY BE CITED AS:	Re Western Port Holdings Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 352

---

CORPORATIONS – Court-appointed receivers – Application for approval of remuneration – Source of power for making orders – Prima facie case for remuneration established – Quantum of remuneration – Discount for possible duplication – In the matter of Banksia Securities Ltd (in liq) (receivers and managers appointed) [2017] NSWSC 540 – IMO Traditional Values Management Limited (in liq) [2012] VSC 650.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr B Skinner, solicitor (30 January 2018) Mr B Cetinkaya, solicitor (6 June 2018)	Evans Ellis Lawyers
Members of the Committee of Inspection appeared in person (6 June 2018):	Mr Kier Cavanagh Mr Jason Sant Mr Peter Denyer

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background......................................................................................................................................... 3

Applicable principles........................................................................................................................ 5

Source of power/jurisdiction to make the orders sought....................................................... 5
The Court’s approach to fixing the Receivers’ remuneration................................................ 6

Consideration.................................................................................................................................... 11

The evidence................................................................................................................................ 11
The Creditors Committee’s submissions................................................................................. 14
Receivers’ prima facie case for approval................................................................................. 15
Amount of remuneration to be approved............................................................................... 16
Difficulties created by the way the evidence has been presented.............................. 16
Review of the items claimed in the Revised WIP Report............................................ 18
Dealing with the likelihood of some duplication between the remuneration claimed by the Receivers in their role as receivers and the work performed in their role as liquidators.................................................................................................................................. 19
Proportionality................................................................................................................... 21

Conclusion......................................................................................................................................... 23

JUDICIAL REGISTRAR MATTHEWS:

Introduction

By an amended interlocutory application filed 23 January 2018 (‘Amended Application’), the plaintiffs seek approval for the remuneration of David Anthony Ross and Richard Albarran in their capacity as joint and several receivers and managers of the DOH Family Trust (‘Receivers’).[1] The Receivers are the second plaintiff in this proceeding.
[1]By orders made on the Court’s own motion on 26 October 2017, the plaintiffs’ application for approval of their remuneration was referred to me for hearing and determination, pursuant to r 84.03 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) and, if required, also pursuant to r 16B.2(3) of the Supreme Court (Corporations) Rules 2013.

The trustee of the DOH Family Trust is Western Port Holdings Pty Ltd (‘WPH’).

The Receivers were appointed as receivers and managers of the business and assets of the DOH Family Trust, established by deed of settlement dated 1 November 2011 (‘Trust’), by orders made by the Honourable Justice Kennedy of this…

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.

Keep reading for free

Create a free CaseChat account to read Re Western Port Holdings Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] VSC 352
Decision Date: 27 June 2018

CaseChat Overview and Summary

The case involved Western Port Holdings Pty Ltd, with the dispute centering around the approval of remuneration for court-appointed receivers. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the receivers had established a prima facie case for their remuneration and, if so, the appropriate quantum of the remuneration, taking into account any potential duplication with fees already received by other receivers or liquidators.

The court examined the source of its power to make orders for remuneration and determined that it had jurisdiction to do so. It was established that the receivers had indeed demonstrated a prima facie case for their remuneration. The court then proceeded to assess the quantum of the remuneration, considering the work done and the value provided. Notably, the court applied a discount to the claimed remuneration to account for any possible duplication of efforts with other receivers or liquidators, ensuring that the receivers were not unduly compensated.

In reaching its decision, the court referred to precedents such as In the matter of Banksia Securities Ltd (in liq) and IMO Traditional Values Management Limited (in liq), which provided guidance on the principles of assessing and approving receivers' remuneration. The court concluded that the receivers had made out a case for remuneration, albeit with an appropriate discount for duplication, and ordered the payment of the adjusted amount.

Orders