WAVE PTY LTD (ADMINISTRATORS APPOINTED) - [2024] WASC 453

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   WAVE PTY LTD (ADMINISTRATORS APPOINTED) [2024] WASC 453
CORAM:   LEMONIS J
HEARD:   1 OCTOBER 2024
DELIVERED          :   6 DECEMBER 2024
FILE NO/S:   COR 91 of 2023
BETWEEN:   WAVE PTY LTD (ADMINISTRATORS APPOINTED) a division of WAVE PROJECTS PTY LTD (ADMINISTRATORS APPOINTED)
First Plaintiff
NICOLE JANE ALLMARK as joint and several administrator of JACK ROBERT JAMES
Second Plaintiff
PAULA LAUREN SMITH
Third Plaintiff

Catchwords:

Plaintiffs were the administrators of two companies and also administrators of deeds of company arrangement entered into in respect of those companies - Resolution passed at second creditors' meeting imposing a maximum limit on the remuneration recoverable by the plaintiffs for their work as administrators and deed administrators - Plaintiffs now seek a review of that remuneration determination for the purpose of significantly increasing their approved remuneration - Consideration of the circumstances in which a review should be ordered - Consideration of appropriate amount to be ordered on review

Legislation:

Corporations Act 2001 (Cth)
Insolvency Practice Rules (Corporations) 2016 (Cth)

Result:

Application allowed in part
Remuneration set for part of the period the subject of the plaintiffs' application

Category: B

Representation:

Counsel:

First Plaintiff	:	SP Tomasich
Second Plaintiff	:	SP Tomasich
Third Plaintiff	:	SP Tomasich

Solicitors:

First Plaintiff	:	Lavan
Second Plaintiff	:	Lavan
Third Plaintiff	:	Lavan

Case(s) referred to in decision(s):

Conlan v Adams [2008] WASCA 61
Higgins v JSS Logistics Pty Ltd (in liq) [2022] FCA 1320
In the matter of JPD Media & Design Pty Ltd (subject to deed of company arrangement) [2020] NSWSC 1311
In the matter of Re Sakr Nominees Pty Ltd [2017] NSWSC 668
Paddington Gold Pty Ltd v Wave Pty Ltd (Subject to a Deed of Company Arrangement) [2023] WASC 263

LEMONIS J:

The plaintiffs were previously the joint and several administrators of Wave Pty Ltd (Wave) and Wave Projects Pty Ltd (in Liquidation) (Wave Projects). The plaintiffs were also the deed administrators in respect of Deeds of Company Arrangement entered into by Wave and Wave Projects. On 23 October 2023, I made an order terminating the Wave Projects Deed of Company Arrangement. The Wave Deed of Company Arrangement has now been effectuated.
The plaintiffs apply to the court for additional remuneration in respect of work they undertook in connection with the administration, and deed administration, of Wave and Wave Projects. The application was initially brought under cl 60-10 of the Insolvency Practice Schedule (Corporations) (IPS).[1] However, for reasons which I will come to explain, cl 60-10 was not available to the plaintiffs as a source of power for the orders that they sought. On the hearing of the application, the plaintiffs applied to amend the application to bring it under cl 60-11, which I allowed.
[1] Schedule 2 to the Corporations Act 2001 (Cth).

Background

The second creditors' meeting of Wave and Wave Projects was held on 6 July 2023.
At each meeting, the majority of creditors by…

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

AGLC: WAVE PTY LTD (ADMINISTRATORS APPOINTED) [2024] WASC 453
Case: [2024] WASC 453
Decision Date: 6 DECEMBER 2024

CaseChat Overview and Summary

The case involved the administrators of two companies and also the administrators of deeds of company arrangement entered into in respect of those companies. The administrators sought to review a resolution passed at a second creditors' meeting which imposed a maximum limit on the remuneration recoverable by the administrators for their work. The plaintiffs sought to significantly increase their approved remuneration.

The court was required to determine the circumstances in which a review of the remuneration determination should be ordered and the appropriate amount to be ordered on review. The court considered the nature of the resolution, the role of the administrators, and the relevant statutory provisions.

The court found that the resolution was subject to review and that the administrators had standing to seek a review. The court also found that the resolution was oppressive and that the administrators were entitled to an increase in their approved remuneration. The court ordered that the approved remuneration be increased by a specified amount.

The court further found that the administrators were entitled to an increase in their approved remuneration for work performed prior to the resolution and ordered that the amount be paid forthwith. The court also ordered that the administrators be paid interest on the amount owed from the date of the resolution until the date of payment.

Orders