Westpac Banking Corporation v IFTT Pty Ltd atf the Ireland Family Trust

[2022] NSWSC 416

Supreme Court

New South Wales

Medium Neutral Citation:

Westpac Banking Corporation v IFTT Pty Ltd atf the Ireland Family Trust [2022] NSWSC 416

Hearing dates:

On the papers

Decision date:

08 April 2022

Jurisdiction:

Equity - Expedition List

Before:

Sackar J

Decision:

See paras [18] and [19]

Catchwords:

CORPORATIONS – external administration –

application to approve the remuneration of receivers for work already performed – whether remuneration is a fair and reasonable reward for work done in the due course of administration – where remuneration calculated on a time charged basis

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Re Banksia Securities Ltd (in liquidation) (receivers and managers appointed) [2017] NSWSC 540

Category:

Principal judgment

Parties:

Westpac Banking Corporation ACN 007 457 141 (plaintiff)
IFTT Pty Ltd ACN 637 482 412 as trustee for the Ireland Family Trust ABN 76 470 025 811 (first defendant)
Corey Dean Ireland (second defendant)
Prudence Jane Ireland (third defendant)

Representation:

Counsel:
Mr B Hancock (plaintiff)

Solicitors:
K&L Gates (plaintiff)

File Number(s):

2019/404452

Publication restriction:

N/A

Judgment

1. The receivers in this matter seek approval from the Court for approval of their remuneration in connection with the affairs of the Defendant.

2. The motion before the court has been filed by the plaintiff and is dated 2 February 2022. By that motion the receivers seek an amount of $740,000 plus GST, being a total of $814,000.

3. The receivers are not parties to the litigation but the plaintiff without demur from any other party has made application on their behalf.

4. The court has received evidence by way of affidavits from William Martin Cowell sworn 2 February 2022 (“Affidavit of Cowell”) plus an exhibit, which in turn makes reference to other affidavits of Mr Cowell. The Court has also received written submissions on behalf of the receivers. Apart from the plaintiff no other party has indicated any desire to be heard on the motion.

The Principles

5. Rule 26.4 of the Uniform Civil Procedure Rules 2005 (NSW) provides that a receiver appointed by the Court is to be allowed such remuneration as may be fixed by the Court. The key principles to be applied in such exercises has been summarised by Gleeson JA in Re Banksia Securities Ltd (in liquidation) (receivers and managers appointed) [2017] NSWSC 540 at [39]-[41].

6. The essential task for the Court is to ensure that the work on which the claim for remuneration is based was undertaken in the due course of the receivers’ roles and that the amount is a fair and reasonable reward for that work.

7. I am very familiar with the matter having case managed it over a very long period.

8. The receivers were first appointed in December 2019. The receivership was complicated by reason of the fact that it concerned a stud of Angus cattle together with bovine product.

9. A muster was necessary to determine precisely which cattle were the subject of the receivership, Affidavit of Cowell at [22]-[25]. This was in the circumstances from my own observation neither an easy nor quick task.

10. Once identified the cattle required care, feeding, agistment and accommodating the cattle in feedlots, Affidavit of Cowell at [46]-[51].

11. DNA testing was also required as was registration of the cattle with Angus Australia, Affidavit of Cowell at [63]-[67].

12. There were also a large number of third parties who claimed interests in the cattle to which the receivers were appointed, Affidavit of Cowell at [68]-[69].

13. The receivers organised the sale of most of the cattle through a number of auctions. There was I am satisfied a good deal of work undertaken by the receivers and their staff in the lead up, conduct of and following the sales, Affidavit of Cowell at [82]-[83], [85]-[86] and [88]-[90].

14. In addition the receivership involved the need to deal with the disposal or ownership of various genetic material principally semen straws and embryos, Affidavit of Cowell at [95]-[108].

15. Further at the direction of the Court the receivers prepared a report for the Court updating their efforts concerning resolving disputation amongst third parties, Affidavit of Cowell at [109]-[113].

16. The amount claimed for the remuneration is calculated on time-based charging method based on rates consistent with orders made on 4 May 2020. The claimed amounts does not include travel to and from the region where the cattle were located. Although it is neither necessary nor practical for the Court to subject the remuneration claimed to a minute examination I observe that Mr Cowell and his senior staff have reviewed the time recorded and accordingly have made adjustments, Affidavit of Cowell at [152]-[153], [155].

17. The actual amount claimed was the subject of a discount of about 15% of the total reviewed amount. There may well be further tasks the receivers will need to undertake but do not propose to charge for.

18. It seems to me given my intimate involvement with the matter that in all the circumstances I am satisfied the remuneration claimed is reasonable. I am fortified in my view in that regard by reason of the fact that no other party has objected to the claim or sought to be heard on the motion.

19. In the light of the fact that further work will need to be performed and as against the possibility some other matter might arise I would propose to stand the matter over to say 6 May for the matter to be finally disposed of. In the meantime I would approve the remuneration claimed and would invite counsel for the plaintiff to prepare a short minute of order to that effect.

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Decision last updated: 08 April 2022