In the matter of JSMOT Pty Ltd (in liq) (receiver and manager appointed) (No 3)

These reasons relate to an interlocutory application filed by Mr Vincent Pirina on 3 December 2021 for determination of his remuneration:

Mr Pirina also seeks an order that his remuneration as receiver and liquidator, in the amount determined by the Court, be paid out of the assets of the Trust.

The plaintiff, Ms Gillian McCall, is a director of the Company, as is the second defendant, Mr Jeffrey Sharp. At the hearing on 21 March 2022, Ms McCall’s solicitor informed the Court that she opposed the application. By the hearing on 2 May 2022, Ms McCall did not oppose the application but her solicitor drew the Court’s attention to certain matters relevant to the determination of the application and submitted that whether and in what amount to fix the remuneration was a matter for the Court. Mr Sharp does not oppose the application and did not appear at the hearing on 21 March or 2 May 2022.

At the conclusion of the hearing on 2 May 2022, I made orders substantially in the terms sought by Mr Pirina on the basis that my reasons would be published in due course. These are my reasons.

Mr Pirina and Mr David Iannuzzi were appointed as receivers and managers of the assets of the Trust by orders made on 20 November 2017 on the application of Ms McCall. On 24 April 2020 the Company was ordered to be wound up and Mr Pirina was appointed as liquidator.

The Company’s only business was as the trustee of the Trust. The Company had no assets other than assets held in its capacity as trustee. The principal asset was a farm at 396-398 Anambah Road Gosforth, NSW, 2320 comprised of folios 332/1054837 (No. 396) and A/431719 (No. 398) (the Property).

In a statutory report to creditors dated 24 July 2020, Mr Pirina advised that:

The report stated:

The reference to “the realisation of the Assets of the Trust” is a reference to the resolution of any claim by the Company to the sale proceeds of the disputed assets. As I have already mentioned, the Property had been sold in April 2020.

The Court has previously made the following remuneration determinations in these proceedings:

In the present application, almost all of the $6,953 remuneration claimed by Mr Pirina in his capacity as receiver relates to work described as general administration. Of the $96,148 remuneration claimed by Mr Pirina in his capacity as liquidator, $64,813 relates to investigations, $20,073 relates to general administration, $2,874 relates to liaising with creditors, $914 relates to inquiries and reporting on the assets of the Company and $7,473 relates to claiming for remuneration.

If the Court fixes the remuneration in the amounts now sought, the total remuneration determinations in respect of the receivers and the liquidator will amount to approximately $420,037 (excluding GST) which represents approximately 24 per cent of the assets of approximately $1,750,000 expected to be realised in the receivership. As Ms McCall’s solicitor submitted, the remuneration is in addition to significant legal costs incurred by the receivers and liquidator. As a result of the remuneration paid to date, legal costs and other disbursements, the funds held by the liquidator in the winding up had been reduced to approximately $964,000 by 3 March 2022. The receivership and liquidation have extended well beyond the estimated completion date of December 2020 set out in the liquidator’s statutory report to creditors dated 24 July 2020 and further work is required to conclude the winding up over and above the work that is the subject of the present remuneration application.

When the present application first came before the Court for hearing, I raised questions with counsel appearing for Mr Pirina about why it had been necessary to undertake the investigation work referred to above so long after the sale of the Company’s assets and at a cost of approximately $70,000 over and above the receivers’ and liquidator’s previous remuneration, and why the receivership and liquidation were continuing with the result that general administration costs continued to be incurred. Counsel candidly informed the Court that those questions could not be answered by reference to the evidence that had been read and tendered on behalf of Mr Pirina. The application was adjourned, without opposition from Ms McCall, to allow Mr Pirina an opportunity to serve further evidence. The following matters emerge from that further evidence, which was read at the resumed hearing on 2 May 2021.

Mr Sharp resided at the Property at all times after the incorporation of the Company until 11 November 2019 and was solely responsible for the Company’s limited business activities referred to earlier in these reasons.

Whilst Mr Pirina obtained some books and records of the Company in his capacity as receiver, he had greater power to demand books and records as liquidator and he did make such demands after his appointment as liquidator. The additional books and records demanded included cash records and bank account statements and bank reconciliations for all bank accounts relevant to transactions entered into by the Company.

Those demands were issued to Mr Sharp on 18 May, 10 June and 22 July 2020. Mr Sharp did not respond to the first two demands, but did respond to the third demand on 14 August 2020 by producing bank statements of the Company and the Company’s ledger for the 2012 to 2017 financial years. Mr Pirina then issued a further demand to Mr Sharp to produce books and records on 21 September 2020. Mr Sharp produced some further books and records in response to that demand on 1, 2 and 5 October 2020.

In his affidavit sworn on 28 March 2022, Mr Pirina has deposed that the books and records of the Company (including those produced by Mr Sharp in August and October 2020) have not enabled him to reconcile the Company’s receipts from its business activities or to ascertain whether the Company’s income has been appropriately accounted for. One reason for that difficulty is that the Company’s transactions were conducted through Mr Sharp’s personal bank account from July 2016 onwards and the intermingling of Mr Sharp’s and the Company’s transactions in this account has made the task of identifying the Company’s transactions particularly complex and time consuming. Mr Pirina has given evidence that the Company’s books and records produced to him are extremely limited and appear to be incomplete, fail to adequately record or explain the Company’s financial position and performance and do not comply with s 286 of the Corporations Act 2001 (Cth).

Mr Pirina has also given evidence that, by the end of 2020 or early 2021, he considered that he had exhausted the process of gathering information under ss 530A and 530B of the Corporations Act and that he would need to examine Mr Sharp under s 596A of that Act and obtain orders requiring Mr Sharp and others to produce documents for the purpose of that examination. Mr Pirina considered that this was necessary in order to progress his investigations concerning:

Mr Pirina refers to the first category above as the Sharp claims and the second category as the asset dispute. I will adopt the same terminology.

An examination summons was issued to Mr Sharp and orders for production of documents were issued to him, his related entities and Ms McCall. Mr Sharp produced in excess of 1,500 pages of documents.

The public examination of Mr Sharp took place on 5 and 6 May 2021.

According to Mr Pirina’s evidence and contemporaneous file notes and correspondence tendered at the hearing on 2 May 2021, Ms McCall supported the public examination of Mr Sharp and was frequently in contact with Mr Pirina’s office prior to, during and after the examination in relation to examination topics and the substance of the answers elicited from Mr Sharp during the examination.

Mr Pirina has deposed in his affidavit sworn on 28 March 2022 that, as a result of the examination, he has obtained information and documents that have assisted his investigations in relation to the Sharp claims and the asset dispute, including evidence that rental and other income of the Company was paid into Mr Sharp’s personal bank account and evidence revealing that the Company did not owe certain monies to Mr Sharp that had been claimed in his proof of debt submitted during the receivership. Mr Pirina’s evidence is that, through the examination and through documents produced under the orders for production, he has identified sums totalling at least $433,022 that were paid to Mr Sharp personally but that should have been paid to the Company during the period from 17 January 2013 and 10 February 2021.

In March 2019, Mr Pirina had adjudicated the proofs of debt submitted by Mr Sharp and Ms McCall in the receivership on the basis of the much more limited information then available and for the purpose of quantifying the consideration for a sale of any assets of the Company to Ms McCall or Mr Sharp. Those proofs were admitted at that time in the amounts of $934,407 (in respect of Mr Sharp) and $688,989 (in respect of Ms McCall). On 14 September 2021, Mr Pirina informed Mr Sharp that he intended to reduce his proof of debt admitted in the receivership by the sum of $433,022 pursuant to s 553C of the Corporations Act.

In response to the communication from Mr Pirina on 14 September 2021, Mr Sharp provided a large volume of documents to Mr Pirina which had not been produced in response to the orders for production. Mr Pirina and his staff are continuing to review these documents and the amount by which Mr Sharp’s proof of debt will be reduced is likely to change following completion of that review. Mr Pirina has called for final proofs of debt in the winding up of the Company and Ms McCall has requested further time to submit her final proof of debt.

In his affidavit sworn on 28 March 2022, Mr Pirina deposed:

Pursuant to the trust deed governing the Trust, the office of trustee was vacated upon the Company going into liquidation. However, as identified by Leeming JA in In the matter of JSMOT Pty Ltd (No 2) [2020] NSWSC 1755 at [11]-[12], the Company continues to be a bare trustee of the assets of the Trust despite ceasing to be trustee under the Trust Deed and retains a right of indemnity and exoneration and a lien over the assets of the Trust. In circumstances where the Company did not act in any capacity other than as trustee of the Trust and has no assets other than assets held in its capacity as trustee, and Mr Pirina’s work as liquidator has related to the Company in its capacity as trustee and has been directed to the investigation, identification and realisation of Trust assets, Mr Pirina in his capacity as liquidator is entitled to be paid his remuneration from the Trust assets: In the matter of JSMOT Pty Ltd (No 2) at [13]-[15]. As Leeming JA identified in that case (at [5]), the source of the Court’s jurisdiction in respect of Mr Pirina’s remuneration is derived from:

I respectfully adopt the summary of the principles applicable to the application by Gleeson JA in In the matter of BBY Limited (Receivers and Managers Appointed) (in liq) [2021] NSWSC 1299 at [52]-[59]:

In his affidavits sworn on 2 December 2021 and 1 April 2022, Mr Pirina has described the categories of work undertaken in the receivership and winding up that is the subject of the present application. Those descriptions are consistent with the entries in the time records exhibited to Mr Pirina’s affidavit sworn on 2 December 2021, which I have reviewed in a broad way.

In relation to the receivership, the present application concerns remuneration of $76 for one telephone call seeking information concerning the Property and $6,877 for general administration work which broadly consisted of internal reviews, preparation and lodgement of tax returns, periodic ASIC lodgements, correspondence, reconciliations and similar matters.

In relation to the winding up, the present application concerns remuneration of:

The remuneration claimed has been calculated on the basis of time charging at hourly rates of $610 for Mr Pirina, $580 for a director with 10 years’ experience and specialist skills, $500 per hour for a senior manager with 10 years’ insolvency experience and accounting qualifications, $460 for a manager with 5-7 years’ experience and lesser rates for assistant managers ($430), senior staff ($330-$380, depending on experience), intermediate staff ($290), graduates ($250) and cadets and administrative staff ($140). I accept Mr Pirina’s evidence that those rates are within the range of rates charged in the insolvency industry. I note Mr Pirina’s evidence that it is standard practice for tasks in an external administration of this nature to be delegated to members of his staff. Based on my broad review of the time records exhibited to Mr Pirina’s affidavit sworn on 2 December 2021, I accept that this practice has been adopted during the receivership and the winding up.

Having regard to the descriptions of the work in Mr Pirina’s affidavit and in the time sheets, and taking into account the inadequacy of the Company’s books and records, the difficulties encountered by Mr Pirina in obtaining those books and records and other relevant documents, the protracted dispute between Ms McCall and Mr Sharp about the disputed assets and intermingling of Company funds and Mr Sharp’s funds in his personal bank account, I accept Mr Pirina’s evidence that the work done was necessary for this receivership and liquidation, subject to one qualification that I will identify below. Subject to that same qualification, I also accept Mr Pirina’s evidence that the work was done in a reasonable manner by staff with the appropriate level of seniority and that the amount charged for the work at the hourly rates set out above is reasonable.

I reject Ms McCall’s submission that the public examination was not necessary, and that the re-adjudication of proofs of debt already adjudicated in the receivership is not necessary. In my view, the examination was necessary. In the circumstances that I have outlined earlier in these reasons, it is very difficult to see how the issues concerning the disputed assets might have been resolved without that examination and the additional documents obtained through the examination process. Moreover, as I referred to at [22] above, Ms McCall was supportive of the liquidator examining Mr Sharp. Subject to the liquidator’s completion of the review of the most recent tranche of documents provided by Mr Sharp, it appears that the examination and additional documents obtained are likely to result in a significant reduction in the net amount for which Mr Sharp’s debt is admitted. Any such reduction will be to Ms McCall’s benefit.

I also reject Ms McCall’s submissions that characterised the liquidator’s process of revisiting his earlier adjudications of proofs of debt as receiver as a delay in adjudicating the proofs or “re-starting” the adjudication process. In all of the circumstances referred to earlier in these reasons, the liquidator has properly recognised that the proofs of debt need to be revisited in light of the significant additional material available to him that was not available at the time he made the adjudications as receiver. The genesis of this problem is that the Company, under the directorship of Ms McCall and Mr Sharp, failed to keep adequate books and records and allowed its funds to intermingled with funds of Mr Sharp.

The qualification to which I referred at [33] above is that the evidence does not establish that it was necessary and reasonable for the liquidator to incur remuneration of $7,473 principally in preparing for an application to have his remuneration in respect of an earlier period fixed in the sum of $60,453. In circumstances where the liquidator had engaged external legal representatives to prepare and conduct that application, it should not have been necessary for the liquidator to undertake work for which the remuneration claimed would exceed 10 per cent of the remuneration that was the subject of the application. I accept that some work was required, but I consider it appropriate to reduce this component of the remuneration now claimed to $3,000. That will result in a reduction of the total remuneration fixed for the liquidator’s remuneration for the period from 1 November 2020 to 31 October 2021 to $91,675 (plus GST).

As I have already mentioned, approval of the remuneration the subject of the present application will result in total remuneration to date of approximately 24 per cent of the assets that have been realised and may yet be realised in the receivership and winding up. I consider that this confirms the reasonableness of the remuneration in all of the circumstances referred to above and particularly the need for Mr Pirina and his staff to adjudicate Mr Sharp’s proof of debt and investigate the amount to be set off against the amount owing to him by the Company. That is so, despite the fact that the receivers and liquidator have incurred significant legal expenses in addition to the remuneration the subject of this application and previous applications.

In his affidavit sworn on 28 March 2022, Mr Pirina has given evidence of the nature of the work undertaken by the legal representatives and has deposed that he has reviewed their invoices and has been satisfied at all times that their work was reasonably necessary for the purpose of the receivership and liquidation and that the invoices were properly payable. Having regard to the seemingly intractable disputes between Ms McCall and Mr Sharp, the nature of those disputes, the inadequacy of the Company’s books and records, the public examination of Mr Sharp and the voluminous documents belatedly provided to the liquidator, I accept Mr Pirina’s evidence that the legal work that he describes was reasonably necessary for the purpose of the receivership and the winding up.

Ms McCall’s solicitor drew the Court’s attention to the fact that further remuneration and costs will be incurred before the winding up is completed and so the total remuneration will exceed 24 per cent of the assets realised. I accept that, but I also accept Mr Pirina’s evidence that that he is in the process of adjudicating Mr Sharp’s proof of debt submitted in the winding up and expects to reach a negotiated settlement with Mr Sharp concerning the disputed assets in the coming weeks. On that basis and assuming no unforeseen complexities, Mr Pirina estimates that the liquidation may be concluded “in the next two months or so”.

Whether the total remuneration as at the completion of the winding up is reasonable and proportionate is a matter that will need to be addressed at that time based on all relevant circumstances which will then be known. On the basis of the material presently before the Court, the amount of the remuneration that is the subject of the present application is reasonable taking into account all relevant circumstances, including the total remuneration approved by the Court to date and the fact that some work remains to be done in the winding up of the Company.

For those reasons, the following orders were made at the conclusion of the hearing on 2 May 2022 (noting that counsel for Mr Pirina did not wish to be heard in opposition to orders 4 to 6):