Onefone Australia Pty Limited & Ors v One.Tel Limited (in liquidation) & Ors [2012] NSWSC 404

Onefone Australia Pty Limited & Ors v One.Tel Limited (in liquidation) & Ors [2012] NSWSC 404

Because the Committee of Inspection process for approval of the special purpose liquidator's unfunded remuneration had failed, the remuneration claim should be referred to a registrar for assessment and report to a judge so the Court could make an order under s 511 of the Corporations Act 2001 (Cth). An interim payment was justified by the liquidator's entitlement to remuneration and the funding cost of delayed payment, but remuneration attributable to the removal proceedings should only be paid on an interim basis if the special purpose liquidator undertook to repay that component if the Court in those proceedings found he was not entitled to it.

Jurisdiction
Australia
Judgment Date
27 April 2012
Procedural Posture
Corporations Winding Up Application by Special Purpose Liquidator for Remuneration Assessment and Interim Payment / Interlocutory Application
Outcome
Remuneration referred to a registrar for assessment and report; interim remuneration payment to be made from One.Tel's assets subject to undertakings by the special purpose liquidator.
Legal Topics
['winding Up' 'liquidator Remuneration' 'committee of Inspection' 'assessment and Quantification by Registrar' 'interim Remuneration Payment' 'special Purpose Liquidator']
['corporations' 'insolvency' 'equity'] ['winding Up' 'liquidator Remuneration' 'committee of Inspection' 'assessment and Quantification by Registrar' 'interim Remuneration Payment' 'special Purpose Liquidator']

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Procedural Posture

Corporations Winding Up Application by Special Purpose Liquidator for Remuneration Assessment and Interim Payment / Interlocutory Application

Legal Issues

  1. 1 ["Whether the special purpose liquidator's unfunded remuneration for work done in the period 1 October 2011 to 9 March 2012 should be referred to a registrar for assessment and quantification." "Whether the Court should authorise an interim payment of two-thirds of the special purpose liquidator's remuneration claim pending determination." 'Whether the pending removal proceedings, and the orders sought in them concerning costs and remuneration, affected the making of an interim remuneration order.']

Ratio Decidendi

Because the Committee of Inspection process for approval of the special purpose liquidator's unfunded remuneration had failed, the remuneration claim should be referred to a registrar for assessment and report to a judge so the Court could make an order under s 511 of the Corporations Act 2001 (Cth). An interim payment was justified by the liquidator's entitlement to remuneration and the funding cost of delayed payment, but remuneration attributable to the removal proceedings should only be paid on an interim basis if the special purpose liquidator undertook to repay that component if the Court in those proceedings found he was not entitled to it.

Court Disposition

Remuneration referred to a registrar for assessment and report; interim remuneration payment to be made from One.Tel's assets subject to undertakings by the special purpose liquidator.

Orders

  • ["There be referred to a registrar, for assessment and quantification, the SPL's claim for unfunded remuneration for work done in the period 1 October 2011 to 9 March 2012." 'The registrar report to the court constituted by a judge the total amount that would be the proper remuneration of the SPL claimed for the...