Australia: Federal Court orders liquidators to repay excessive remuneration drawn with interest and to bear costs personally

In Lock, In the matter of Cedenco JV Australia Pty Ltd (in liq) (No 3) [2019] FCA 879, the Federal Court ordered liquidators John Sheahan and Ian Lock (Liquidators) to repay approximately AU$1.9 million (or 30%) of the remuneration they drew in their role as administrators and liquidators of SK Foods Australia Pty Ltd (in liquidation), Cedenco JV Australia Pty Ltd (in liquidation) and SS Farms Australia Pty Ltd (in liquidation).

The Court also ordered that the Liquidators:

  • pay interest from the date on which the remuneration was drawn; and
  • bear ASIC's costs and their own legal costs personally.

To add to our previous takeaways (summarised here) following the delivery of the Judge's reasons on 11 February 2019:

  • The Court has power to, and will, order repayment of remuneration taken and retained without entitlement, with interest, particularly having regard to the obligation on insolvency practitioners to repay fees to which they are not entitled immediately into the administration account of the affected company. The persons or entities who benefit from repayment is irrelevant to whether interest should be paid.
  • Despite the usual position being that an order for costs will not be made in favour of an intervener, in appropriate circumstances the Court will order a party to pay an intervener's costs.

The proceedings

To recap, the Liquidators commenced the proceedings in July 2015, after ASIC raised concerns that they had failed to comply with the requirements (then in sections 449E(7) and 499(7) of the Corporations Act 2001 (Cth) (Act)). It appeared that the Liquidators had drawn remuneration where the creditors' resolutions fixing the remuneration were passed on the basis of:

  • inadequate remuneration reports;
  • remuneration reports which did not cover the correct period of time; or
  • no relevant remuneration report.

ASIC intervened in the proceedings and opposed the orders sought by the Liquidators under s 1322(4) effectively 'rubber stamping' the remuneration as well as raising extensive objections to the remuneration sought.

On 11 February 2019, Justice Besanko refused the Liquidators' application under s 1322(4) and found that the Liquidators had contravened sections 449E and 499(7) of the Act . His Honour found that the remuneration claimed could not be said to appear reasonable and that it was 'very high' in the circumstances.

In his reasons, Justice Besanko also provided for significant discounts to the remuneration claimed by the Liquidators, including a 20% discount on partner and senior manager rates and a 10% discount on manager rates. Those reasons translated into a reduction of approximately AU$1.9 million, or about 30% of the AU$5.8 million remuneration claim made by the Liquidators.

Final judgment

On 12 June 2019, the Court delivered its final judgment in the proceedings. As mentioned above, the orders made resulted in the Liquidators being required to repay approximately AU$1.9 million.

Excess remuneration to be paid back with interest

Significantly, Justice Besanko also ordered that the Liquidators pay interest on the amounts drawn which exceeded the amounts approved by the Court (i.e., AU$1.9 million) from the date the amounts were drawn to the date they are repaid in accordance with the Court's Practice Note (GPN-INT) which stipulates a pre-judgment interest rate four basis points above the Reserve Bank of Australia (RBA) cash rate, increasing to six basis points after judgement is delivered.

His Honour disagreed with the Liquidators' submissions that the Court lacked the power to award interest in the case. His Honour also had regard to clause 16.3 of the Code of Professional Practice for Insolvency Practitioners, which requires insolvency practitioners upon becoming aware that they are not entitled to fees to repay them immediately.

Finally, His Honour found that, contrary to the Liquidators' submissions, the issue of what persons or entities may benefit from the repayment of monies is irrelevant to whether interest should be paid.

Intervener's costs and Liquidators' costs to be borne personally

Justice Besanko ordered that the Liquidators bear their own costs personally without any right of indemnity from the assets of the companies (which position the Liquidators had accepted). More significantly, Justice Besanko also ordered that the Liquidators pay ASIC's costs as intervener, personally without any right of indemnity from the assets of the companies.

His Honour acknowledged that ASIC's role as intervener in this case was quite different from what it might be in other cases and said that ASIC's submissions provided 'an overwhelming case for payment' of ASIC's costs, saying, "it is difficult for me to see how there could have been a proper review of the plaintiff's remuneration without the substantial role played by ASIC."

Key takeaways

This decision emphasises that the failure to properly obtain creditor approval of remuneration and then failing to immediately repay that remuneration until such time as it is approved poses a significant financial risk to insolvency practitioners personally.

In addition, the practitioners may also be at risk of paying the regulator's costs in circumstances where the regulator is the only other 'party' to the case and has played a significant and substantial role in the proceedings.

Corrs acted for ASIC for the entirety of these proceedings, which commenced in 2015.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions