Niardone v Clubb (No 2) [2021] FCA 54

Niardone v Clubb (No 2) [2021] FCA 54

The Court was satisfied that, although administrators' remuneration is ordinarily dealt with under Division 60 of Schedule 2, s 447A(3) empowered it to impose a condition fixing the remuneration of the administrators when exercising the s 447A power, and that fixing remuneration at $14,323 plus GST, if applicable, was appropriate given the evidence of the work undertaken, verification and review of the fees, the estimate and undertaking not to recover more, the disproportionate cost of a more formal assessment, the absence of opposition by the directors, and consistency with the object of Part 5.3A.

Jurisdiction
Australia
Judgment Date
29 January 2021
Procedural Posture
Application by Administrators for Orders Fixing Remuneration / Interlocutory Process Determined on the Papers
Outcome
Orders made fixing the administrators' remuneration and costs of the interlocutory process to be paid from the assets of the Third Respondent.
Legal Topics
['administration of Companies' "administrators' Remuneration" 'section 447 a Orders' 'part 5.3 a of the Corporations Act 2001 (cth)' 'insolvency Practice Schedule (corporations) Division 60']
['corporations' 'corporate Insolvency'] ['administration of Companies' "administrators' Remuneration" 'section 447 a Orders' 'part 5.3 a of the Corporations Act 2001 (cth)' 'insolvency Practice Schedule (corporations) Division 60']

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Procedural Posture

Application by Administrators for Orders Fixing Remuneration / Interlocutory Process Determined on the Papers

Legal Issues

  1. 1 ['Whether the Court could make orders under s 447A of the Corporations Act 2001 (Cth) fixing the remuneration of administrators where orders had been made for the administration to end on 1 February 2021.' "Whether it was appropriate to fix the administrators' remuneration at $14,323 plus GST, if applicable, for the period 18 January 2021 up to and including 1 February 2021."]

Ratio Decidendi

The Court was satisfied that, although administrators' remuneration is ordinarily dealt with under Division 60 of Schedule 2, s 447A(3) empowered it to impose a condition fixing the remuneration of the administrators when exercising the s 447A power, and that fixing remuneration at $14,323 plus GST, if applicable, was appropriate given the evidence of the work undertaken, verification and review of the fees, the estimate and undertaking not to recover more, the disproportionate cost of a more formal assessment, the absence of opposition by the directors, and consistency with the object of Part 5.3A.

Court Disposition

Orders made fixing the administrators' remuneration and costs of the interlocutory process to be paid from the assets of the Third Respondent.

Orders

  • ['The first respondents be granted leave to file in Court an interlocutory process dated 29 January 2021 and the affidavit of Duncan Edward Clubb sworn on 29 January 2021, subject to the undertaking of the solicitors for the first respondents to pay the applicable filing fees.' 'The interlocutory process be...