In the matter of Australian Company Number 074 962 628 Pty Limited (in liq) (formerly Colonial Staff Super Pty Limited)

1. [1]

   GLEESON JA: Application is made by the first plaintiff, Mr David Mansfield, as liquidator of the second plaintiff, ACN 074 962 628 Pty Limited (in Liq) (formerly Colonial Staff Super Pty Limited) by originating process filed on 2 March 2017 for (a) the determination of the liquidator’s remuneration in the amount of $19,404.00 inclusive of GST; (b) an order that the liquidator’s costs of this application be fixed in the sum of $4,378 (inclusive of GST); and (c) the advice and direction of the court that the liquidator would be justified in distributing funds of $33,798.35 held by the company as follows - first, in payment of the liquidator’s costs and expenses in connection with this application in an amount of $4,378; next, in recoupment of expenses incurred by the liquidator in respect of the period 7 March 2012 to 14 December 2016 in the amount of $14,586 inclusive of GST; and finally, to the extent available, in payment up to $19,404 inclusive of GST to the liquidator in respect of his remuneration.

Background

1. [2]

   On 7 March 2012 an order was made by the Supreme Court of New South Wales for the reinstatement of the company and Mr Mansfield was appointed liquidator of the company, following its earlier deregistration in the circumstances described below.

2. [3]

   The company had been wound up voluntarily following a resolution of its members on or about 30 December 1998 pursuant to s 491 of the then Corporations Law, which was given the force of law in New South Wales by s 7 of the Corporations (NSW) Act 1990. The company was subsequently deregistered following the lodging of the then liquidator’s final statement of accounts on 6 April 2000. Under the terms of ss 509(5) and 601AC(2) of the then Corporations Law, the Australian Securities and Investments Commission (ASIC) must deregister a company whose liquidator lodges a final statement of accounts, at the end of the three month period beginning when that statement is lodged. Those provisions became effective on 1 July 1998 as part of the Company Law Review Act 1998 (Cth), shortly before the company was placed into voluntarily winding up in December 1998, and were still in effect in 2000 when the company was deregistered.

3. [4]

   Prior to its winding up and deregistration, the company was the trustee of the Colonial Group Staff Superannuation Fund (the old Colonial Fund), a superannuation fund for certain employees of The Colonial Mutual Life Assurance Society Ltd (Colonial Mutual).

4. [5]

   In about 1996 or 1997, Colonial Mutual demutualised and became known as Colonial Limited (Colonial). By a deed dated 25 June 1997 between the company and SBSBS Pty Ltd (the 1997 Indemnity Deed), all of the assets of the old Colonial Fund were transferred to SBSBS as trustee of the State Bank Superannuation Benefits Scheme.

5. [6]

   By cl 2(b) of that deed, SBSBS indemnified the company with respect to any liability that arose in connection with the old Colonial Fund. The transfer of assets held by the company as trustee of the old Colonial Fund to the new fund known as the Colonial Group Staff Superannuation Scheme (the new Colonial fund) occurred in about July 1998.

6. [7]

   As indicated, on or about 30 December 1998, the company was wound up voluntarily by a resolution of its members and subsequently deregistered in 2000.

7. [8]

   In 2003, following the acquisition of Colonial by the Commonwealth Bank of Australia (CBA), the assets of the new Colonial Fund were transferred to Commonwealth Bank Officers Superannuation Corporation Pty Ltd (CBOSC) as trustee of the Commonwealth Bank Officers Superannuation Fund (the CBO Fund) pursuant to what is known as a successor fund deed. Clause 3.1 of that deed provided that CBOSC indemnified SBSBS with respect to any liability that arose in respect of the new Colonial Fund.

8. [9]

   In 2011, Mr Peter Beck, a former employee of Colonial (and later CBA) and a member of the old Colonial Fund and new Colonial Fund (and later the CBO Fund) commenced proceedings against CBOSC and CBA (the Beck proceedings).

9. [10]

   Mr Beck also sought and obtained the reinstatement of the company to make it a party to the Beck proceedings, being the order of the Supreme Court on 7 March 2012 referred to above. The company was then joined as a defendant in the Beck proceedings.

10. [11]

    When the company was reinstated, there was no explicit statement in the court’s order as to the power exercised by the court. Counsel for the liquidator submitted that the company was reinstated under s 601AH of the Corporations Act 2001 (Cth). That can be accepted, but it is necessary to explain why that is so.

11. [12]

    The transitional provisions of the Corporations Act includes s 1399, which provides relevantly:

12. [13]

    Section 1371 of the transitional provisions defines “carried over provision” as follows:

13. [14]

    The definition of the word “corresponds” in s 1371 is informed by s 1371(2)-(4) of the Corporations Act, which provides relevantly:

14. [15]

    The provisions under which the company was deregistered in 2000, ss 509 and 601AC of the then Corporations Law, answer the definition of “carried over provisions” in s 1371 of the Corporations Act. Those provisions mirror the same numbered provisions of the Corporations Act. They also remained in those terms at the time the company was reinstated in 2012.

15. [16]

    That means that the deregistration of the company under the corresponding provisions of the Corporations Law, referred to in the transitional provisions under the Corporations Act as the “old corporations legislation”, is to be treated by virtue of s 1399 as a thing done before the commencement of the Corporations Act under a “carried over provision”. The deregistration therefore “has effect (and may be dealt with) after the commencement [of the Corporations Act], for the purposes of the new corporations legislation, as if it were done by, under or for the purposes of, the corresponding provision of the new corporations legislation”. Accordingly, the deregistration may be treated as if it were done under the Corporations Act, ss 509(5) or 601AC. As a consequence of that deeming provision, the Court had power to make orders for the company’s reinstatement under s 601AH of that Act, as occurred on 7 March 2012.

16. [17]

    Mr Beck made various allegations against the company in respect of actions it took in its role as trustee of the old Colonial Fund, in particular, its consent to certain amendments to the trust deed governing the old Colonial Fund, which Mr Beck claimed affected his accrued benefits under that fund.

17. [18]

    The active defendants in the Beck proceedings were CBA and CBOSC (the CBA parties). The company, through its liquidator, monitored the proceedings. Mr Beck succeeded against the company and the CBA parties at trial. That decision was overturned on appeal by the Court of Appeal: Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Beck [2016] NSWCA 218. An application for special leave was dismissed with costs by the High Court on 10 March 2017.

The nature of the current winding up

1. [19]

   It is important to say something briefly about the nature of the current winding up. This is relevant to the correct identification of the source of the court’s power for the orders now sought.

2. [20]

   First, Corporations Act s 601AH(5) deals with the effect of reinstatement. It provides that if a company is reinstated, the “company is taken to have continued in existence as if it had not been deregistered”. If, as in this case, the company was in liquidation at the time of the deregistration, it remains in liquidation after it is reinstated: Australian Competition & Consumer Commission v Australian Securities and Investments Commission (2000) 34 ACSR 232; [2000] NSWSC 316.

3. [21]

   Second, and related to the first matter, notwithstanding that the reinstatement occurred by way of a court order, the nature of the liquidation after reinstatement is the same as that as at the time of liquidation: Stone v ACN 000 337 940 Pty Ltd [2008] NSWSC 1058 (Barrett J). Thus, in the present case, the liquidation after reinstatement is a members’ voluntary liquidation: Stone at [24] and [29].

4. [22]

   Third, the fact that the liquidation is a members’ voluntary liquidation rather than a court ordered liquidation has consequences for the source of power to determine the liquidator’s remuneration and give directions as to the disbursement of moneys held by the liquidator.

5. [23]

   As Barrett J explained in Re Walker & Anor (as liqs of One.Tel Ltd (in liq)) (2005) 221 ALR 320; [2005] NSWSC 557 at [7], the Corporations Act provides for three different methods of determining or fixing a liquidator’s remuneration according to whether the winding up is a winding up by the Court, a members’ voluntary winding up or a creditors’ voluntary winding up. In a case, such as the present, of a members’ voluntary winding up the power to fix the liquidator’s remuneration is conferred by s 495(1) on the company in general meeting. Section 495(1) provides:

6. [24]

   Section 504 confers jurisdiction upon the Court to review the remuneration of a liquidator in a voluntary winding up, whether a members’ voluntary winding up or a creditors’ voluntary winding up. However, as Barrett J also explained in Re Walker at [11]:

7. [25]

   Accordingly, in a members’ voluntary winding up the function of fixing remuneration is given exclusively to the company in general meeting by s 495(1) and there is a power of review conferred on the court by s 504. But in the present case, upon reinstatement of the company the liquidator was not appointed by the company in general meeting as would ordinarily happen in a members’ voluntary liquidation. He was appointed by the Court.

8. [26]

   Is there a default power to fix remuneration exercisable by the Court via s 511? A similar question arose in Re Walker, a case involving a creditors’ voluntary winding up. After referring to the views expressed in leading law texts and various company and bankruptcy cases, including Re Brighton Motors Pty Ltd (in Liquidation) [1932] VLR 241, which involved a members’ voluntary winding up, Barrett J observed at [31] that:

9. [27]

   I respectfully agree with the analysis of Barrett J and his Honour’s conclusion. That reasoning equally applies to a members’ voluntary winding up.

10. [28]

    I accept that it is not practicable here for the liquidator to convene a meeting of members for the purpose of fixing his remuneration. Any assets of the company were distributed over 17 years ago to the sole member, The Colonial Mutual Life Assurance Society Limited. Although that member is a company ultimately wholly owned by the Commonwealth Bank of Australia, it cannot be expected that it would attend any general meeting of the company, if convened by the current liquidator, to fix the liquidator’s remuneration. It has no interest in attending any such meeting.

11. [29]

    This is a case where the Court’s power under s 511(1)(a) is available to determine the liquidator’s remuneration. Plainly, in the words of s 511(2), it is “just and beneficial” for the Court to determine that question.

A. The liquidator’s remuneration and disbursements

1. [30]

   Mr Mansfield’s proposed remuneration as liquidator of the Company has been calculated as $17,640 exclusive of GST (or $19,404 inclusive of GST). That amount is Mr Mansfield’s entire claim for remuneration for the conduct of the liquidation of the Company, for the period from the reinstatement date of 7 March 2012 to 14 December 2016.

2. [31]

   Mr Mansfield also incurred disbursements, in the form of legal costs, in the amount of $13,260 exclusive of GST (or $14,586 inclusive of GST).

3. [32]

   On 17 May 2016, CBOSC and the company executed a deed which provided that the company’s costs and expenses (including Mr Mansfield’s remuneration), incurred since its reinstatement, would be paid by CBOSC in the sum of $33,798.35 (the settlement sum). This amount is slightly less than the total amount of Mr Mansfield’s claim for remuneration and expenses.

4. [33]

   On 31 May 2016, the settlement sum was paid by CBOSC to the company. Apart from this amount, the company does not have any other assets.

5. [34]

   In written submissions, counsel for the liquidator characterised the settlement sum received by the liquidator as trust property, because it had been paid by CBOSC, the current trustee of the CBO Fund, presumably out of assets of the CBO Fund. The liquidator’s submission continued that the claim for remuneration was sought out of trust property, and hence involved the exercise of the court’s inherent equitable jurisdiction to allow a trustee remuneration, costs and expenses out of trust assets. It was submitted that it is well established that the court’s inherent equitable jurisdiction extends to a person such as a liquidator who is, for practical purposes, controlling a trustee company. Reference was made to Re MF Global Australia Limited (in liq) (No 2) [2012] NSWSC 1426 at [55]; Alphena Pty Ltd (in liq) v PS Securities Pty Ltd atf Joseph Family Trust (2013) 94 ACSR 160; [2013] NSWSC 447 at [37]; and Re AAA Financial Intelligence Limited (in liq) [2014] NSWSC 1004 at [13].

6. [35]

   I do not accept the premise of the liquidator’s submission. The settlement sum received by the liquidator on behalf of the company was not received by the company qua trustee. The company ceased to be trustee of the Old Colonial Fund in about July 1998. Nor is the settlement sum trust property. The company had an express right of indemnity against SBSBS with respect to any liability that arose in connection with the Old Colonial Fund. SBSBS in turn had an equivalent express right of indemnity against CBOSC, which would include any liability of SBSBS to the company under the 1997 Indemnity Deed.

7. [36]

   The company, having incurred costs and expenses in connection with the Beck proceedings, was entitled to be indemnified by SBSBS, and SBSBS in turn had a claim for indemnity against CBOSC. CBOSC compromised the company’s claim for indemnity by payment of the settlement sum direct to the company in consideration of a release of the company’s claim against CBOSC. The settlement sum was received by the company by way of indemnification in respect of the company’s costs and expenses incurred in the Beck proceedings, and as a contribution towards the liquidator’s unpaid remuneration and expenses of the administration. It is not necessary to express any view on whether the width of that indemnity in fact covered the liquidator’s remuneration and expenses of the administration. On any view, the settlement sum is not trust property in the hands of the company.

8. [37]

   It follows, for the reasons earlier given, that the relevant source of power to fix the liquidator’s remuneration in the present case is s 511.

9. [38]

   When determining the question of the quantum of the liquidator’s remuneration, under s 511(1) of the Corporations Act, regard should be had to the statutory criteria laid down in s 504(2), which are applicable where the Court exercises its power to review the amount of the remuneration of the liquidator on an application of any member or creditor or the liquidator. The factors in s 504(2) mirror the factors listed in s 473(10), which apply in a court ordered winding up. Section 504(2) provides:

10. [39]

    In Sanderson, as liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr [2017] NSWCA 38, the Court of Appeal, sitting as a bench of five, considered the question of the proper approach to the determination by the Court of reasonable remuneration of a liquidator. Sakr concerned a court-appointed liquidator. The applicable provision was s 473(3) of the Corporations Act which provides, relevantly, that a liquidator is entitled to receive such remuneration “by way of percentage or otherwise” as is determined, relevantly in that case, by the Court. Section 473(5) empowered the Court to review the liquidator’s remuneration in certain circumstances, while s 473(10) stated matters to be taken into account by the Court in exercising its power under ss 473(3) and s 473(5). Sections 504(1) and (2) are the equivalent provisions in a members’ voluntary winding up to ss 473(5) and (10) in a court winding up.

11. [40]

    Three propositions can be derived from Sakr and adapted to the present case involving a members’ voluntary liquidation. Paragraph references in the following three paragraphs are to Sakr unless otherwise indicated.

12. [41]

    First, the onus is on the liquidator to establish that the remuneration claimed is reasonable and it is the function of the Court (under s 511(1)) to determine the remuneration by considering the material provided and bringing an independent mind to bear on the relevant issues. In this respect, the principles earlier stated in Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96; (1998) 16 ACLC 1653; Conlan (as liquidator of Rowena Nominees Pty Ltd) v Adams (2008) 65 ACSR 521; [2008] WASCA 61 at [28]-[29], remain relevant despite the subsequent 2007 amendments to the Corporations Act (including, relevantly, to s 504(2)): at [54].

13. [42]

    Second, the factors in s 504(2)(d)-(e) and (g)-(h)) can be seen to have as their unifying theme the concept of proportionality. The question of proportionality in terms of work done as compared with the size of the property the subject of the insolvency administration or the benefit to be obtained from the work, is an important consideration in determining reasonableness: Templeton v Australian Securities and Investments Commission (2015) 108 ACSR 545; (2015) FCAFC 137. The work done must be proportionate to the difficulty and importance of the task in the context in which it needs to be performed. This is what is encompassed in assessing the value of the services rendered: at [55].

14. [43]

    Third, the mere fact that the work performed does not lead to augmentation of the funds available for distribution does not mean the liquidator is not entitled to be remunerated for it. Provided it was reasonable to carry out the work and the amount charged is reasonable, there is no reason a liquidator should not recover remuneration for undertaking the work: at [57]-[58].

15. [44]

    The last matter is particularly apposite here where the liquidation was primarily defensive of the company’s interests in the Beck proceedings.

Decision

1. [45]

   The liquidator swore an affidavit on 1 March 2017 providing a detailed explanation of the work performed by him and his staff. Although the work primarily involved monitoring the legal proceedings to which the company was a party, albeit not as an active defendant, the work undertaken by the liquidator was not limited to that task alone. The liquidator deposed that he obtained and reviewed the available books and records of the company, enquired into its affairs and the trusts of which it was formerly a trustee, prepared and lodged various statutory forms, notices, accounts and reports based on correspondence with third parties, including the previous liquidator, directors of the company, the Australian Taxation Office, the Office of State Revenue (NSW), and the solicitors for the active defendants in the Beck proceedings. The liquidator also retained solicitors to act and advise him in connection with the company’s claim for indemnity from CBOSC and the negotiation and settlement of that claim leading to entry into the Settlement Deed.

2. [46]

   The liquidator expressed the opinion that the time spent reflected the work required to be undertaken in respect of the winding up and that the work was performed in an efficient manner. He deposed that the work was carried out by persons with the appropriate level of seniority, the time spent by staff members fairly reflected the work required to be undertaken in respect of the winding up by those staff members and the work performed by the liquidator and his staff was performed in an efficient and timely manner.

3. [47]

   It is unnecessary to refer to the detail of the liquidator’s evidence. The evidence establishes that the work was carried out by persons with the appropriate level of seniority, whose charge-out rate was proportional to the level of the complexity of the work that was performed. This was established by the time ledgers, which show the bulk of the preliminary and administrative work was carried out by junior staff, the more detailed substantive work was carried out by more senior staff and that the work carried out by the liquidator himself, who had the highest charge-out rate, was limited to supervision and reviewing and signing statutory forms. The liquidator expressed the opinion that the hourly rates charged by the liquidator and his staff members are reasonable and commercially competitive. Having reviewed those charge-out rates, I accept that evidence.

4. [48]

   Counsel for the liquidator submitted that, having regard to the factors listed in s 473(10) of the Corporations Act, the work was properly performed in the due course of the winding up, it was reasonable to carry it out and the liquidator’s claim for remuneration is a fair and reasonable reward for the work. In support of that submission, counsel for the liquidator pointed to the following matters, each of which I accept.

5. [49]

   First, the remuneration claim for $19,404 (inclusive of GST) is a modest amount given the winding up of the company, since its reinstatement, proceeded over a four-and-a-half year period.

6. [50]

   Second, although the liquidation principally was defensive in monitoring the Beck proceedings, rather than realising property for the benefit of creditors (or its members, as the case may be), the Beck proceedings were substantial and involved complex issues arising from the conduct of the company as trustee of the old Colonial fund of the 1990s.

7. [51]

   Third, that the new trustee, CBOSC, has agreed to and has paid the settlement sum to the company is highly significant. As the party ultimately responsible for paying the liquidator’s remuneration, CBOSC had a “clear and direct interest in ensuring that only reasonable remuneration is allowed”: In the Matter of MINMXT Holdings Pty Ltd (in liq) [2017] NSWSC 156 at [32] (Barrett AJA).

8. [52]

   Fourth and importantly, as a practical matter the liquidator will receive only about 80 per cent of his claim for remuneration if the amount claimed is approved by the Court. This is because the liquidator accepts that he must first deduct from the settlement sum the costs and disbursements of this application and his legal expenses of the Beck proceedings. The effect of the settlement deed is that CBOSC will not make any further payment to the company and the company has given a release in cl 3.1 of that deed. There are no other assets available to the liquidator.

9. [53]

   I accept that it is appropriate, in the circumstances of the present case, that the liquidator’s remuneration be determined on a time-charging basis, rather than some other basis. Plainly, an ad valorem basis is not appropriate given the nature of the liquidation was essentially defensive of the claim against the company in the Beck proceedings.

10. [54]

    I am satisfied that the liquidator’s remuneration is reasonable and should be determined in the amount claimed of $19,404 (inclusive of GST).

B. Costs of these proceedings

1. [55]

   The liquidator seeks an order fixing the legal costs of this application in the amount of $4,378 (inclusive of GST). The Court has power to fix a gross sum under s 98(4)(c) of the Civil Procedure Act 2005 (NSW). A relevant consideration is the delay and expense of a costs assessment. Here the sum claimed is reasonable. It is also modest; the legal costs sought are limited to counsels’ fees and the filing fee. There is no reason to discount these costs. Nor is there any reason to put the liquidator to the delay and expense of a costs assessment.

C. Application of funds

1. [56]

   The liquidator proposes to apply the settlement sum in the manner indicated in [1] above. That is, first to payment of the costs of this application, next to payment of the legal costs and expenses of the Beck proceedings and finally, the balance to the extent available, towards payment of his remuneration.

2. [57]

   The proposed order of application of the settlement sum (and any interest thereon) is appropriate. Other than the creditors falling within the first two categories mentioned above, there are no other creditors of the company.

Conclusion and Orders

1. [58]

   For the above reasons, I make the following orders:

   1. (1)

      That the remuneration of the first plaintiff, as liquidator of Australian Company Number 074 962 628 Pty Limited (in liq) (formerly Colonial Staff Super Pty Limited) (the Company), is determined to be $19,404 (inclusive of GST).

   2. (2)

      That the plaintiffs’ costs and disbursements of these proceedings be fixed in the sum of $4,378 (inclusive of GST).

   3. (3)

      That the first plaintiff, as liquidator of the Company, would be justified in distributing the amount of $33,798.35 (and any interest thereon) in the following manner: