Australian Securities and Investments Commission v Letten (No 22) [2014] FCA 681

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Letten (No 22) [2014] FCA 681 Citation: Australian Securities and Investments Commission v Letten (No 22) [2014] FCA 681

Parties: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v MARK RONALD LETTEN

File number: VID 95 of 2010

Judge: GORDON J

Date of judgment: 26 June 2014

Date of hearing: 11 June 2014

Date of last submissions: 20 June 2014

Place: Melbourne

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 77

Counsel for the Receivers: Mr R Strong

Solicitors for the Receivers: King & Wood Mallesons

Counsel for the First Defendant: Mr IG Waller QC and Mr S Hibble

Solicitors for the First Defendant: Baker & McKenzie

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 95 of 2010

BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Plaintiff

AND: MARK RONALD LETTEN

First Defendant

(and others according to the attached schedule)

JUDGE: GORDON J DATE OF ORDER: 26 June 2014 WHERE MADE: MELBOURNE

THE COURT ORDERS AND DIRECTS THAT:

1. The Receivers (as defined in Annexure A) are justified in deploying funds from the Common Fund (as defined in the Orders made by the Honourable Justice Gordon on 11 November 2010) in the institution and prosecution of the Breach of Trust Litigation (as defined in Annexure A). 2. The Receivers are justified in entering into the Proposed Legal Costs Agreement with King & Wood Mallesons, Exhibit DJT 291 to the 47th Affidavit of Damien John Templeton sworn 5 June 2014. 3. The Receivers are justified in entering into the Proposed KPMG Fee Agreement, Exhibit DJT 292 to the 47th Affidavit of Damien John Templeton sworn 5 June 2014. 4. Notwithstanding paragraph 20 of the order made by Gordon J on 25 February 2010, the Receivers shall not be entitled to any remuneration for time spent by the Receivers, their partners and staff, in the performance of their duties in connection with the institution or conduct of the Breach of Trust Litigation save as provided in paragraph 5. 5. In the event that the Breach of Trust Litigation results in a Recovery (as defined in Annexure A), the Receivers shall be entitled to reasonable remuneration and reasonable costs and expenses properly incurred (not exceeding the amount of the Recovery) as may be fixed by the Court on the application of the Receivers, such sum to be calculated on the basis of the time reasonably spent by the Receivers, their partners and staff, in the conduct of the Breach of Trust Litigation at the rates previously ordered by the Court multiplied by 1.25 as per the Proposed KPMG Fee Agreement. 6. Costs reserved. Annexure A Breach of Trust Litigation means the proposed proceeding by Nicholson Street Pty Ltd (ACN 069 104 089) (Receivers and Managers Appointed) (In Liquidation), Twinview Nominees Pty Ltd (ACN 089 906 543) (Receivers and Managers Appointed) (In Liquidation) and the Glen Centre Hawthorn Pty Ltd (ACN 097 307 278) (Receivers and Managers Appointed) (In Liquidation) against Mark Ronald Letten and Paul James Lane as described in the 45th Affidavit of Damien John Templeton sworn on 27 March 2014. Receivers means Damien John Templeton and Phillip Hennessy, in their capacity as receivers and managers appointed by the Court on 25 February 2010, 4 March 2010 and 30 July 2010. Recovery means the aggregate of: (i) any amounts received by the Receivers in satisfaction (in whole or in part) of any judgment obtained in the Breach of Trust Litigation; and (ii) any amounts received by the Receivers pursuant to terms of a settlement of the Breach of Trust Litigation. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).