Weston (Trustee) v Sanna (No 6)

Case •

[2021] FCA 1487

•

23 November 2021

FEDERAL COURT OF AUSTRALIA

Weston (Trustee) v Sanna (No 6) [2021] FCA 1487

File number: NSD 276 of 2016
Judgment of: MARKOVIC J
Date of judgment: 23 November 2021
Catchwords: BANKRUPTCY AND INSOLVENCY – application by trustee in bankruptcy for orders referring quantification of remuneration, costs and expenses to a referee – where orders made for trustee to realise two properties forming part of the estate – whether trustee entitled to be paid his remuneration, costs and expenses from the proceeds of sale of those properties – whether remuneration, costs and expenses arise in connection with realisation of those properties – application allowed in part
Legislation: Federal Court of Australia Act 1976 (Cth) s 54A
Cases cited:

Commonwealth Bank of Australia v Butterell [1994] 35 NSWLR 64

Deputy Commissioner of Taxation v Government Insurance Office of New South Wales [1992] 109 ALR 159

Re application of Central Commodity Services Pty Ltd [1984] 1 NSWLR 24; Shirlaw v Taylor [1991] 31 FCR 222

Re Berkeley Applegate (Investment Consultants) Ltd (in liq) [1982] Ch 32; [1988] 3 All ER 71

Re S & D International Pty Ltd (in liquidation) (receiver and manager appointed) [2009] VSC 225

Re Universal Distributing Co Ltd (in liquidation) (1933) 48 CLR 171

Stewart and Atco Controls Pty Ltd (in liquidation) (2014) 252 CLR 307
Division: General Division
Registry: New South Wales
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Number of paragraphs: 32
Date of hearing: 23 November 2021
Counsel for the Applicant: Mr A Spencer
Solicitor for the Applicant: Dentons Australia
Counsel for the First Respondent: The First Respondent appeared in person
Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs
Counsel for the Fifth Respondent: The Fifth Respondent filed a submitting notice save as to costs
Counsel for the Seventh Respondent: The Seventh Respondent appeared in person with a McKenzie friend, Ms M Gattellari
Solicitor for the Ninth Respondent: K&L Gates
Solicitor for the Tenth Respondent: Mr G Adelstein of Adelstein Solicitors
Solicitor for the Eleventh Respondent: Mr A Hack of Matthews Folbigg Lawyers
Counsel for the Twelfth Respondent: The Twelfth Respondent filed a submitting notice save as to costs

 

ORDERS

NSD 276 of 2016
BETWEEN:

MR PAUL GERARD WESTON AS TRUSTEE OF THE BANKRUPT ESTATE OF LEPA SANNA

Applicant
AND:

CORRADO SANNA

First Respondent

BORAL CONSTRUCTION MATERIALS GROUP LTD

Second Respondent

E & B PASTORAL PTY LTD (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

MARKOVIC J

DATE OF ORDER:

23 NOVEMBER 2021

THE COURT ORDERS THAT:

1.Pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth), there be referred to a registrar of the Court (Referee) the following questions for inquiry and report:

(a)the quantification of the amounts to which Mr Weston is entitled:

(i)for his remuneration with respect to the sale and disbursement of the proceeds of sale of the Copacabana Property;

(ii)for his legal expenses in connection with transferring the Copacabana Property to the purchaser;

(iii)for his legal expenses of the interlocutory application filed on 6 March 2020;

(iv)for commission payable to the agent on the sale of the Copacabana Property; and

(v)(whether included in the above amounts or otherwise) for his costs, expenses and remuneration (including GST), on an indemnity basis, reasonably and properly incurred in taking steps in the course of executing the Orders made on 15 June 2020, in gaining possession of and caring for the Copacabana Property, in resisting the various applications made to amend, delay or prevent the process of selling the Copacabana Property in accordance with those orders and in recovering his costs, expenses and remuneration (including GST and disbursements) of so doing, including (for the avoidance of doubt) any such costs, expenses or remuneration incurred in the following proceedings:

A.proceedings NSD 276 of 2016, NSD 619 of 2016 and NSD1135 of 2019 in this Court save for the costs, expenses and remuneration incurred in connection with event number 4, being FCA Application 2 as described in the affidavit of Justin Gibb Bates sworn 19 July 2021;

B.proceeding PAC2399/2018 in the Federal Circuit Court (Family Law) and the Family Court of Australia;

C.proceeding 2020/241992 in the Supreme Court of New South Wales; and

D.proceeding 2021/215136 in the Supreme Court of New South Wales;

(b)the quantification of the amounts to which Mr Weston and Mr Nith are entitled:

(i)for their remuneration with respect to the sale and disbursement of the proceeds of sale of the Green Valley Property;

(ii)for their legal expenses in connection with transferring the Green Valley Property to the purchaser;

(iii)for Mr Weston’s legal expenses of the interlocutory application filed on 6 March 2020;

(iv)for commission payable to the agent on the sale of the Green Valley Property; and

(v)(whether included in the above amounts or otherwise) for his costs, expenses and remuneration (including GST), on an indemnity basis, reasonably and properly incurred in taking steps in the course of executing the orders made on 15 June 2020, in gaining possession of and caring for the Green Valley Property, resisting the various applications made to amend, delay or prevent the process of selling the Green Valley Property in accordance with those orders and recovering his costs, expenses and remuneration (including GST and disbursements) of so doing, including (for the avoidance of doubt) any such costs, expenses or remuneration incurred in the following proceedings:

A.proceedings NSD 276 of 2016, NSD 619 of 2016 and NSD1135 of 2019 in this Court save for the costs, expenses and remuneration incurred in connection with event number 4 being FCA Application 2 as described in the affidavit of Justin Gibb Bates sworn 19 July 2021;

B.proceeding PAC2399/2018 in the Federal Circuit Court (Family Law) and the Family Court of Australia;

C.proceeding 2020/241992 in the Supreme Court of New South Wales; and

D.proceeding 2021/215136 in the Supreme Court of New South Wales.

2.The Referee is to give to the Court a written report that:

(a)has attached to it the statements given by the parties under r 28.65(7) of the Federal Court Rules 2011 (Cth);

(b)sets out the Referee’s opinion on the matter; and

(c)sets out the Referee’s reasons for the opinion.

3.The first, seventh and tenth respondents are to pay the applicant’s costs of this application.

4.Liberty to apply on seven days’ notice.

THE COURT NOTES THAT:

5.The applicant will communicate with each of the respondents to this proceeding in order to ascertain which of those respondents wish to file and serve a points of claim setting out the basis upon which they make a claim on the fund that has been realised following the sale of the Copacabana Property and the Green Valley Property and whether they wish to do so prior to or after the Referee has reported to the Court, and to communicate with the Court on the outcome of that inquiry.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

MARKOVIC J:

  1. This is an application made by the applicant in this proceeding, Paul Gerard Weston as trustee of the bankrupt estate of Lepa Sanna (Trustee or Mr Weston), seeking orders that certain questions concerning the quantification of amounts to which he says he is entitled for his remuneration and other expenses arising from the sale of two properties, which for ease I will refer to as the Copacabana Property and the Green Valley Property, be referred, pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) (FCA Act), to a registrar of this Court (referee).

    BACKGROUND

  2. That application arises in the following way. 

  3. On 15 June 2020 the Court made orders (15 June 2020 Orders) for the sale of the Copacabana Property by Mr Weston, in whom the property vested pursuant to the Bankruptcy Act 1966 (Cth), and the Green Valley Property by Mr Weston and Mr Ragu Nith who were appointed as trustees for sale of that property pursuant to s 66G of the Conveyancing Act 1919 (NSW).

  4. Orders 2 and 3 of the 15 June 2020 Orders set out the amounts that could be deducted from the proceeds of sale of the Copacabana Property and Green Valley Property and relevantly provided:

    The Copacabana Property

    …

    2.In relation to the sale of the Copacabana Property at auction or by private treaty, Mr Weston is empowered:

    …

    (d)to deduct from the proceeds of sale:

    (i)the commission, valuation and legal costs and other expenses of any real estate agent employed by Mr Weston on the sale of the Copacabana Property;

    (ii)his remuneration with respect to the sale and disbursement of the proceeds thereof calculated at the rates set out at tab 45 of the exhibit to Mr Weston’s affidavit sworn on 5 March 2020;

    (iii)the legal expenses in connection with transferring the Copacabana Property to the purchaser;

    (iv)the legal expenses of the interlocutory application filed on 6 March 2020;

    (v)any taxes including but not limited to Capital Gains Tax, Land Tax and Goods and Services Tax (GST); and

    (vi)the mortgagee(s) debts secured over the Copacabana Property being:

    Westpac Banking Corporation Mortgage AH755748A.

    The Green Valley Property

    3.In relation to the sale of the property referred to in Schedule C to these Orders (Green Valley Property) at auction or by private treaty, the Section 66G Trustees appointed pursuant to paragraph 12 of these Orders be empowered:

    …

    (d)to deduct from the proceeds of sale:

    (i)the commission, valuation and legal costs and other expenses of any real estate agent employed by the Section 66G Trustees on the sale of the Green Valley Property;

    (ii)the remuneration of the Section 66G Trustees with respect to the sale and disbursement of the proceeds thereof calculated at the rates set out at tab 45 of the exhibit to Mr Weston’s affidavit sworn on 5 March 2020;

    (iii)the legal expenses in connection with transferring the Green Valley Property to the purchaser;

    (iv)the legal expenses of the interlocutory application filed on 6 March 2020;

    (v)any taxes including but not limited to Capital Gains Tax, Land Tax and GST; and

    (vi)the mortgagee(s) debts secured over the Green Valley Property being: Permanent Mortgages Pty Ltd Mortgage 6470310G.

  5. There were nine caveats lodged against the Copacabana Property and 10 caveats lodged against the Green Valley Property, including one lodged by the Trustee and one lodged by the seventh respondent, Lepa Sanna.  In summary, the claims made by those caveators relate to debts incurred by the first respondent Corrado Sanna, Ms Sanna’s former husband, whilst this proceeding was on foot.  The rights of those caveators and their entitlement to any funds are yet to be determined.  However, those rights are dependent upon the realisation of the Copacabana Property and the Green Valley Property and the creation of a fund against which those rights can be asserted. 

  6. At the time the orders were made for sale of the two properties, Mr Sanna remained in residence in the Copacabana Property.  The 15 June 2020 Orders recognised that fact by way of a notation to that effect and the following orders:

    8.        Mr Sanna may continue to reside in the Copacabana Property provided that he:

    (a)allows all reasonable access to the Copacabana Property to Mr Weston or as Mr Weston may direct for the purpose of giving effect to these Orders; and

    (b)within 14 days of receiving any council rates notice or utilities bill in relation to the Copacabana Property, pays to Mr Weston the amount of that notice or bill.

    9.        The payments referred to in paragraph 8(b) of these Orders are to be:

    (a)made by way of electronic transfer to the following bank account:

    …; and

    (b)dealt with as if they were proceeds of the sale of the Copacabana Property.

    10.Notwithstanding paragraph 8 of these Orders, Mr Sanna must provide Mr Weston with vacant possession of the Copacabana Property on or before the earlier of:

    (a)14 days prior to the completion date of any exchanged contract for the sale of the Copacabana Property; or

    (b)13 August 2020.

  7. Despite the 15 June 2020 Orders, Mr Sanna did not provide vacant possession of the Copacabana Property, nor did he make the payments required by Order 8 of the 15 June 2020 Orders.  Ultimately, Mr Sanna vacated the property on or about 4 November 2020.  Based on the evidence before me, it appears that he left the property in a less than desirable state and that council rates remained unpaid in relation to it. 

  8. Ultimately, the sale of the Green Valley Property took place on 12 December 2020 and settled on 30 April 2021 and the sale of the Copacabana Property took place on 26 May 2021 and settled on 8 July 2021.

  9. In the period between the making of the 15 June 2020 Orders and the time of the settlement of the sales of the Copacabana Property and the Green Valley Property, numerous applications were made in this Court, in what is now the Federal Circuit and Family Court of Australia and in the Supreme Court of New South Wales by either Ms Sanna or Mr Sanna in which they sought orders which affected the properties. 

  10. The issue that arises for determination is not, it seems, whether the quantification of the remuneration and costs and expenses of the Trustee should be referred to a registrar of this Court acting as a referee but, rather, the extent of the remuneration, costs and expenses to which the Trustee is entitled.  By way of further explanation, putting to one side the submissions made by Mr Sanna, no party seems to suggest that the Trustee is not entitled to any remuneration, costs or expenses associated with the sale of the properties.  Rather, submissions have been made, in particular by Ms Sanna, to an extent by Mr Sanna and by the tenth respondent, Defined Properties Investment Pty Ltd, which concern whether all of those matters or steps taken by the Trustee and for which he claims that his remuneration, costs and expenses should be quantified by the referee were in fact concerned with or related to the realisation of the Copacabana Property and the Green Valley Property and thus should be included in the orders for referral.

    LEGAL PRINCIPLES

  11. Before considering whether that is so, it is necessary to set out the principles upon which the Trustee relies in seeking payment of his remuneration, costs and expenses out of the fund that has been created as a result of the sale of the properties. 

  12. Those principles are well settled.  In particular, the Trustee relies on the lien recognised in Re Universal Distributing Co Ltd (in liquidation) (1933) 48 CLR 171 at 174-175 where Dixon CJ said:

    … If a creditor whose debt is secured over the assets of the company come in and have his rights decided in the winding up, he is entitled to be paid principal and interest out of the fund produced by the assets encumbered by his debt after the deduction of the costs, charges and expenses incidental to the realization of such assets (In re Marine Mansions Co.). The security is paramount to the general costs and expenses of the liquidation, but the expenses attendant upon the realization of the fund affected by the security must be borne by it (In re Oriental Hotels Co.; Perry v. Oriental Hotels Co.). The debenture-holders are creditors who have a specific right to the property for the purpose of paying their debts. But if it is realized in the winding up, a proceeding to which they are thus parties, the proceeds must bear the cost of the realization just as if they had begun a suit for its realization or had themselves realized it without suit (cf. In re Regent's Canal Ironworks Co.; Ex parte Grissell; and see Batten v. Wedgwood Coal and Iron Co.).

    In applying this principle, only those expenses appear to have been thrown against the fund belonging to the debenture-holders which have been reasonably incurred in the care, preservation and realization of the property. In the present case the liquidator has employed a material part of his time and energies in recovering moneys, both uncalled capital and debts, which enure for the debenture-holder, and in so far as these services increase the remuneration which he receives, I see no reason why the burden should not be thrown upon the proceeds. The question is not whether moneys available for unsecured creditors should be relieved at the expense of the security. In such a case it may be said that the service of collecting enough to discharge the debenture must in any event be performed in order that a surplus may then arise in which the unsecured creditors may participate. The question in the present case is whether the liquidator can charge against the fund passing through his hands as between himself and the person to whom it is payable, so much of the remuneration fixed for work done in the winding up as is referable to the calling in and conversion of the assets producing the fund. I see no reason why remuneration for work done for the exclusive purpose of raising the fund should not be charged upon it.

    (Footnotes omitted.)

  13. As the Trustee submitted, in Stewart and Atco Controls Pty Ltd (in liquidation) (2014) 252 CLR 307 at [37] the High Court of Australia explained that the expression used by Dixon CJ in Universal Distributing that a secured creditor “comes in” to a winding up means when it lays claim to and seeks the benefit of a fund created by the liquidator in the winding up in order to satisfy its charge. 

  14. It is well established that the principle enunciated in Universal Distributing has been extended.  In particular, it is not necessary that the party claiming the lien is a liquidator.  It can extend to the benefit of a receiver or receiver and manager, provisional liquidator or voluntary administrator: see Re application of Central Commodity Services Pty Ltd [1984] 1 NSWLR 24; Shirlaw v Taylor [1991] 31 FCR 222 and Commonwealth Bank of Australia v Butterell[1994] 35 NSWLR 64. The entitlement to the lien has also been extended to a trustee in bankruptcy; see Deputy Commissioner of Taxation v Government Insurance Office of New South Wales [1992] 109 ALR 159.

  15. In Re S & D International Pty Ltd (in liquidation) (receiver and manager appointed) [2009] VSC 225 at 273 Robson J conveniently set out the principles as follows:

    273From these authorities the following principles referrable to a liquidator may be stated:

    (a)At equity, an equitable lien arises in favour of a liquidator over the funds realised from the sale of company property for the costs he incurs for the care, preservation and realisation of the property in priority to those otherwise interested in the fund. In re Regent’s Canal Ironworks Co. Ex parte Grissell; Re Universal Distributing Company Ltd (in liq); Commonwealth Bank of Australia v Butterell and Dean-Willcocks v Nothintoohard Pty Ltd (in liq).

    (b)The costs include those that the liquidator fairly incurs in the discharge of his duty to care, preserve and realise the property. Commonwealth Bank of Australia v Butterell.

    (c)The lien may arise whether or not the ultimate sale is affected by the liquidator and entitles the liquidator to be paid in priority out of the fund whether or not he is in possession of the fund. Commonwealth Bank of Australia v Butterell and Dean-Willcocks v Nothintoohard Pty Ltd (in liq).

    (d)The costs and expenses secured by the lien must be incurred exclusively for the care, preservation or realisation of the property and not otherwise expended in the general administration of the mortgagor. Re Universal Distributing Company Ltd (in liq) and Commonwealth Bank of Australia v Butterell.

    (e)The costs and expenses include the liquidator’s reasonable remuneration. Re Universal Distributing Company Ltd (in liq); Moodemere Pty Ltd (in liq) v Waters and Commonwealth Bank of Australia v Butterell.

    (Footnotes omitted.)

  1. Finally, the costs and expenses secured by the lien in an appropriate case include those involved in defending the fund and/or the claimant against claims arising from the realisation of the property: see Butterell at 73.

  2. There is an alternative basis upon which a person who gets in assets with the authority of the Court may claim a lien for his costs and expenses of doing so, which relies on the more general basis of salvage: see, for example, Re Berkeley Applegate (Investment Consultants) Ltd (in liq) [1982] Ch 32; [1988] 3 All ER 71.

    CONSIDERATION

  3. The Trustee relies on a number of affidavits, but in particular the affidavits of his solicitor, Justin Gibb Bates, sworn on 19 July 2021 and 18 October 2021 in which Mr Bates sets out in some detail the nature of the work undertaken by the Trustee in relation to the sale of the Copacabana Property and the Green Valley Property by reference to certain events and the applications and other proceedings which have been brought over the past 18 months which the Trustee says concerned or touched upon the realisation of either or both of those properties, such that his remuneration, costs and expenses associated with those events and defending those applications or proceedings should be borne by the trust property or the fund which has been created in accordance with the principles set out in Universal Distributing. 

  4. As I have already observed, Ms Sanna, Mr Sanna and Defined each made submissions in response to the application opposing it in varying degrees. 

  5. In summary, Mr Sanna said that the Trustee should not receive any payment of his remuneration, costs or expenses.  In support of that submission he relied on a letter he received from Dentons, the lawyers for the Trustee, and his reply to that letter.  The assertion that the Trustee should receive no remuneration, costs or expenses incurred in realisation of the properties is rejected.  The Trustee is entitled to his reasonable remuneration and costs and expenses based on the principles set out above.  There is no proper basis upon which it could be concluded that he is entitled to nothing.  The correspondence relied on by Mr Sanna does not assist him and, on my review, does not raise any particular objection to the categories of remuneration, costs and expenses that are sought. 

  6. It is notable that in their letter Dentons sought payment from Mr Sanna of amounts that were owing by him for unpaid council rates and utility bills in relation to the Copacabana Property and the quantified costs of an adjournment application that he had made in this proceeding which had not been paid.  The response to that demand by Mr Sanna can only be described as non-responsive in that he directed the Trustee to pursue those matters “through the legal system”, noting that the Trustee “apparently has chosen not to do so yet”.

  7. Ms Sanna provided detailed submissions raising both general issues as to the Trustee’s conduct and more particular responses to the categories of remuneration, costs and expenses claimed by the Trustee by reference to the various proceedings in which the Trustee was involved.  Defined also made submissions in relation to particular categories of remuneration, costs and expenses sought by the Trustee. 

  8. Insofar as Ms Sanna makes complaint and submissions about the Trustee’s conduct in the administration of her bankrupt estate, that is not a matter that is relevant to this application and can be put to one side.  It is of course a matter that Ms Sanna may be able to raise in a different proceeding or venue but it does not bear upon the issue that is currently before me for determination.  I, therefore, need say no more about those submissions.

  9. I turn, then, to the various submissions made in relation to the ambit of the orders sought by the Trustee for his remuneration, costs and expenses and the extent of the lien to which he is entitled.  I have considered both the written and oral submissions made by Ms Sanna, Defined and the Trustee and the evidence relied on by Ms Sanna and the Trustee insofar as it concerns the Trustee’s claim for his remuneration, costs and expenses related to the realisation of the Copacabana Property and the Green Valley Property and the defending of those properties and the sale process put in place by the orders of the Court.

  10. Having done so, I am satisfied that, save in one respect, the Trustee is entitled to his remuneration, costs and expenses to be quantified by a referee relating to each of the events set out in Mr Bates’ affidavit sworn on 19 July 2021 and his affidavit sworn on 18 July 2021 and that in each case the Trustee was acting to preserve and realised the assets. 

  11. The one exception is the event described in Mr Bates’ affidavit sworn 19 July 2021 as event number 4 “FCA Application 2”.  I am not satisfied that those steps concerned the realisation or the preservation of the Copacabana Property or the Green Valley Property. 

  12. That event related to an application by Ms Sanna to relist this proceeding to seek orders for the Trustee to consent to her making enquiries with AFCA in relation to a complaint against Westpac Banking Corporation.  Westpac was the mortgagee of the Copacabana Property.  It seems that the Trustee was required to provide written confirmation in order for Ms Sanna to proceed with her complaint.  The Trustee was concerned not to provide that written confirmation because of the complaint resolution scheme rules of the Australian Financial Complaints Authority, dated 25 April 2020, which he considered may, if a complaint was lodged, prevent Westpac from providing a discharge of mortgage, which in turn would prevent or delay settlement of sale of the Copacabana Property.  That may or may not have been the case and whether that would have occurred is, in my view, entirely hypothetical.  Indeed, it seems that ultimately the Trustee gave his consent without the need for any argument.  In the circumstances I am not satisfied that the costs associated with that application are incidental to the realisation of the Copacabana Property or to its preservation.   

  13. I should also address the proceeding commenced by Susan Huybers in the Supreme Court.  Defined submitted that that proceeding was not necessarily concerned with the realisation of the properties, and that, in any event, it was an ongoing proceeding and costs may be ultimately recoverable by the Trustee from Ms Huybers, the plaintiff in that proceeding.  Having reviewed the originating application and the notice of motion filed by Ms Huybers, it seems to me that that proceeding does concern, if not the properties themselves, then the fund that has been created upon their realisation.  The Trustee was only exposed to that proceeding because he was charged with the responsibility of realising the fund, and therefore the costs associated with that proceeding are properly caught by the lien. 

  14. Finally, I note that in a number of the applications that have been made, in which Ms Sanna or Mr Sanna have been unsuccessful, costs orders have been made in favour of the Trustee.  The Trustee frankly submitted that, beyond an unsuccessful demand being made of Mr Sanna for one set of costs (see [21] above), no steps have been taken to enforce those costs orders.  I accept the Trustee’s submission that, as the evidence suggests that Ms Sanna does not have the assets available to meet a costs order and that Mr Sanna has refused to pay even the one costs order that has been quantified, there is little utility in the Trustee expending further funds in pursuing those costs orders at this stage, and that the fact that he has those costs orders does not mean that he cannot otherwise rely on the principle in Universal Distributing.  That is not to say that the Trustee may not at some point in the future seek to enforce those costs orders for the benefit of the parties who will seek to claim on the fund and/or otherwise the creditors of the estate. 

    DISPOSITION

  15. The Trustee has proposed draft orders which, subject to two matters, I will make.  The first matter is that Defined has raised the issue of the amount payable as agent’s commission on the sale of each of the Copacabana Property and the Green Valley Property and says that, given the difference between the estimated amount for that commission and the amount in fact paid, it should also be the subject of inquiry and quantification by the referee.  The Trustee does not oppose that course, and an order to that effect will be included.  Secondly, the proposed orders will be amended to carve out the event which I have identified above, the remuneration costs and expenses for which, in my view, the Trustee is not entitled to claim from the fund. 

  16. Subject to those matters, I will make orders in accordance with the draft orders provided by the Trustee. 

    COSTS

  17. The Trustee has sought his costs of today’s application.  As I have said, that application was opposed by Defined, Mr Sanna, and Ms Sanna.  Defined submitted that it was a matter for the Court to be satisfied that it could make the orders sought and that its submissions were provided, it seems, to highlight the issues that arose and to assist the Court.  Both Ms Sanna and Mr Sanna opposed the making of any costs order, as does Defined.  Those parties opposed, in the case of Mr Sanna, all and, in the case of Ms Sanna and Defined, at least to some extent, the orders sought by the Trustee.  The Trustee has been substantially successful in his application.  He should have his costs.  For that reason I will also make an order that Defined, Mr Sanna, and Ms Sanna pay the Trustee’s costs of the application.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Markovic.

Associate:

Dated:       26 November 2021

SCHEDULE OF PARTIES

NSD 276 of 2016

Respondents

Fourth Respondent:

BARRIE NORTHCOTE HORNE

Fifth Respondent:

WESTPAC BANKING CORPORATION

Sixth Respondent:

HANSON CONSTRUCTION MATERIALS PTY LTD

Seventh Respondent:

MS LEPA SANNA

Eighth Respondent:

MR MICHAEL KEVIN DEAKIN

Ninth Respondent:

BLUESCOPE STEEL LTD

Tenth Respondent:

DEFINED PROPERTIES INVESTMENTS PTY LTD

Eleventh Respondent:

WYSE & YOUNG INTERNATIONAL PTY LTD (IN LIQ)

Twelfth Respondent:

BORAL LIMITED
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