Lucantonio v Benscrape Pty Ltd (No 2) [2020] NSWSC 1114

Supreme Court New South Wales

Medium Neutral Citation: Lucantonio v Benscrape Pty Ltd (No 2) [2020] NSWSC 1114 Hearing dates: 20 August 2020 Date of orders: 20 and 21 August 2020 Decision date: 21 August 2020 Jurisdiction: Equity Before: Williams J Decision: Receiver's remuneration for the period after 14 August 2020 is approved in a sum not exceeding $21,991.75. Receiver is authorised to pay internal disbursements charged by the Receiver's firm out of the assets. Receiver's appointment is terminated in respect of certain assets, but continues in relation to funds in an operating account to facilitate further work necessary to bring the receivership to an orderly conclusion. Receiver's legal costs of and incidental to the application fixed in the sum of $36,174.00. Catchwords: RECEIVERS AND MANAGERS – Court-appointed receivers – remuneration – approval of remuneration – remuneration for work already performed – work performed on a time-charge basis – whether the amount of remuneration claimed, based on hourly rates, is fair and reasonable – remuneration approved RECEIVERS AND MANAGERS – Court-appointed receivers – remuneration – approval of remuneration – remuneration for work to be performed in the future – where it is necessary for the receiver to perform future work in respect of the partnership, including lodging tax returns – whether proposed remuneration for future work is fair and reasonable – remuneration for future work approved in a fixed sum RECEIVERS AND MANAGERS – Court-appointed receivers – termination of receivership – where receivership is proposed to be terminated but it is necessary for the receiver to perform limited future work, including lodging tax returns – receivership terminated except to the limited extent that the receiver has control over a particular operating bank account EQUITY – remedies – declarations – whether it is appropriate to make a declaration as to the existence of matters of mere fact – where no evidence of the underlying basis for the declaration sought – declaration refused Legislation Cited: Corporations Act 2001 (Cth), s 420 Income Tax Assessment Act 1936 (Cth), s 254 Uniform Civil Procedure Rules 2005 (NSW), r 26.4 Cases Cited: Australian Securities and Investments Commission v Lawrenson Light Metal Die Casting Pty Ltd (1999) 158 FLR 307; [1999] VSC 500 Banning v Lean (No 3) (2019) 54 WAR 259; [2019] WASCA 30 HN QCV Bottle Tree Village Pty Ltd v QCV Bottle Tree Village Pty Ltd (No 2) [2019] NSWSC 433 In the matter of Sakr Nominees Pty Ltd [2017] NSWSC 668 Macquarie Bank Ltd v Two Eagles Pty Ltd [2014] NSWSC 367 Re Beverage Freight Services Pty Ltd [2020] NSWSC 797 Re Gondon Give Pty Ltd and Cui Family Asset Management Pty Ltd [2019] NSWSC 469 Re J & Lee Property Investment Group Pty Ltd (in liq) [2019] NSWSC 927 Re Jackgreen (International) Pty Ltd [2010] NSWSC 817 Re Say Enterprises Pty Ltd [2018] NSWSC 396 Shirlaw v Taylor (1991) 31 FCR 222; [1991] FCA 415 Sutton v NRS(J) Pty Ltd [2020] NSWSC 826 Texts Cited: T Robinson and P Walton, Kerr & Hunter on Receivers and Administrators (20th ed, Sweet & Maxwell, 2018) Category: Procedural and other rulings Parties: Receiver (Applicant) Trevor Edward Lucantonio (First Plaintiff/First Respondent) Dianne Wendy Lucantonio (Second Plaintiff/Second Respondent) Benscrape Pty Ltd (First Defendant/Third Respondent) John Peter Salvestro (Second Defendant/Fourth Respondent) Representation: Counsel: Mr D R Stack (Applicant) Mr B Hancock (Defendants/Third and Fourth Respondents)