Onefone Australia Pty Ltd v One.Tel Ltd [2010] NSWSC 1120

Onefone Australia Pty Ltd v One.Tel Ltd [2010] NSWSC 1120

The resolution of the committee of inspection was not valid and cannot be cured or validated under s 1322 of the Corporations Act. Accordingly, no legal entitlement to payment exists. It falls to the court under s 511 of the Corporations Act to determine the quantum of remuneration. The liquidator's evidence and explanations are insufficient to permit accurate quantification; he holds the onus of proof. Further particulars and re-presentation of material are required before remuneration can be assessed.

Parties
First Plaintiff: Onefone Australia Pty Ltd; Second Plaintiff: DCA Resources Australia Pty Ltd; Third Plaintiff: Pacific Finance Group Pty Ltd; Fourth Plaintiff: Concept Systems (Australia) Pty Limited; First Defendant: One.Tel Limited; Second Defendant: Steven Sherman; Third Defendant: Peter Walker; Special Purpose Liquidator / Applicant: Paul Gerard Weston; Interested Parties: Committee of Inspection Members; Intervener / Amicus Curiae: ASIC (Australian Securities and Investments Commission)
Jurisdiction
Australia
Judgment Date
01 October 2010
Procedural Posture
Corporations (winding Up) / Remuneration Application – Determination of Liquidator’s Remuneration Under S 511 Corporations Act
Outcome
Application not finally determined; short minutes of order to be presented; claim for remuneration to be re-formulated and served for further assessment.
Legal Topics
Winding Up, Remuneration of Liquidator, Creditors Voluntary Winding Up, Committee of Inspection, Quantification of Remuneration, Procedural Irregularity, Directions for Quantification, Onus of Proof
Corporations Winding Up Remuneration of Liquidator Creditors Voluntary Winding Up Committee of Inspection Quantification of Remuneration Procedural Irregularity Directions for Quantification +1 more

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Parties

Onefone Australia Pty Ltd

First Plaintiff

DCA Resources Australia Pty Ltd

Second Plaintiff

Pacific Finance Group Pty Ltd

Third Plaintiff

Concept Systems (Australia) Pty Limited

Fourth Plaintiff

One.Tel Limited

First Defendant

Steven Sherman

Second Defendant

Peter Walker

Third Defendant

Paul Gerard Weston

Special Purpose Liquidator / Applicant

Committee of Inspection Members

Interested Parties

ASIC (Australian Securities and Investments Commission)

Intervener / Amicus Curiae

Procedural Posture

Corporations (winding Up) / Remuneration Application – Determination of Liquidator’s Remuneration Under S 511 Corporations Act

Legal Issues

  1. 1 Whether the committee of inspection resolution was valid for fixing liquidator’s remuneration
  2. 2 Whether remuneration may be determined by the court under s 511 of the Corporations Act
  3. 3 What activities are within scope of liquidator’s functions for remuneration

Ratio Decidendi

The resolution of the committee of inspection was not valid and cannot be cured or validated under s 1322 of the Corporations Act. Accordingly, no legal entitlement to payment exists. It falls to the court under s 511 of the Corporations Act to determine the quantum of remuneration. The liquidator's evidence and explanations are insufficient to permit accurate quantification; he holds the onus of proof. Further particulars and re-presentation of material are required before remuneration can be assessed.

Court Disposition

Application not finally determined; short minutes of order to be presented; claim for remuneration to be re-formulated and served for further assessment.

Orders

  • Special purpose liquidator, committee members and ASIC to formulate and deliver short minutes of order for procedure
  • Special purpose liquidator to re-present material and re-formulate claim for periods in question to ASIC and committee members