Deputy Commissioner of Taxation v ACN 080 122 587 Pty Ltd [2005] NSWSC 1247

Deputy Commissioner of Taxation v ACN 080 122 587 Pty Ltd [2005] NSWSC 1247

Because Mr Reidy's appointment as administrator while owed more than $5,000 contravened s 448C and s 1322 would only excuse civil penalties and not the criminal offence, the appropriate relief was a nunc pro tunc leave order and a s 447A order regulating the operation of Part 5.3A. As to remuneration, the Court accepted the creditors' prior approval of rates and allowed the claimed further fees except for items not established as necessary or justified, namely internal staff conversations and excessive affidavit preparation time, fixing administration period fees at $127,725.

Jurisdiction
Australia
Judgment Date
05 December 2005
Procedural Posture
Corporations List Application Concerning Administration Defect and Administrator's Remuneration / Judgment on Application for Nunc Pro Tunc Leave and Increase of Administrator's Fees
Outcome
Leave granted nunc pro tunc for appointment of administrator; administrator's remuneration increased to $127,725.
Legal Topics
["administrator's Remuneration" 'appointment of Administrator' 'defect in Procedure' 'nunc Pro Tunc Order' 'corporations Act 2001 (cth) Part 5.3 A']
['corporations Law' 'insolvency Law'] ["administrator's Remuneration" 'appointment of Administrator' 'defect in Procedure' 'nunc Pro Tunc Order' 'corporations Act 2001 (cth) Part 5.3 A']

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Procedural Posture

Corporations List Application Concerning Administration Defect and Administrator's Remuneration / Judgment on Application for Nunc Pro Tunc Leave and Increase of Administrator's Fees

Legal Issues

  1. 1 ['Whether a defect in the appointment of an administrator who was owed more than $5,000 by the company should be dealt with under s 447A or s 1322 of the Corporations Act 2001 (Cth).' "Whether the Court could make a curing order nunc pro tunc in relation to the administrator's appointment." "Whether the administrator's remuneration approved by creditors should be increased under s 449E(2) to account for additional work done after 10 May 2004."]

Ratio Decidendi

Because Mr Reidy's appointment as administrator while owed more than $5,000 contravened s 448C and s 1322 would only excuse civil penalties and not the criminal offence, the appropriate relief was a nunc pro tunc leave order and a s 447A order regulating the operation of Part 5.3A. As to remuneration, the Court accepted the creditors' prior approval of rates and allowed the claimed further fees except for items not established as necessary or justified, namely internal staff conversations and excessive affidavit preparation time, fixing administration period fees at $127,725.

Court Disposition

Leave granted nunc pro tunc for appointment of administrator; administrator's remuneration increased to $127,725.

Orders

  • ['The court gives leave nunc pro tunc for Mr Reidy to be appointed administrator of the defendant company notwithstanding that the company may have been indebted in an amount exceeding $5,000 to Mr Reidy at the time of his appointment.' "Part 5.3A of the Corporations Act 2001 (Cth) is to operate in relation to the...