In the matter of One.Tel Limited (in liquidation) ACN 068 193 153 [2012] NSWSC 68

Supreme Court New South Wales

Medium Neutral Citation: In the matter of One.Tel Limited (in liquidation) ACN 068 193 153 [2012] NSWSC 68 Hearing dates: 3 & 6 February 2012 Decision date: 06 February 2012 Jurisdiction: Equity Division - Corporations List Before: Hammerschlag J Decision: The General Purpose Liquidators are justified in paying to the Special Purpose Liquidator the sum of $218,865.66. Order 5 made on 19 December 2011 is dissolved Catchwords: Variation of Order withholding part of Special Purpose Liquidator's remuneration - no issue of principle Legislation Cited: Corporations Act 2001 (Cth) Category: Procedural and other rulings Parties: One.Fone Australia Pty Limited - First Plaintiff DCA Resources Australia Pty Limited (ACN 086 919 351) - Second Plaintiff Pacific Finance Group Pty Limited (ACN 062 783 813) - Third Plaintiff Concept Systems (Australia) Pty Limited (ACN 062 783 813) - Fourth Plaintiff One.Tel Limited (in liquidation) (ACN 068 193 153) - First Defendant Steven Sherman - Second Defendant Peter Walker - Third Defendant Representation: Counsel: V.E. Whittaker - General Purpose Liquidators M.R. Aldridge SC with R. Glasson - Special Purpose Liquidator A.R.A. Kuklik - ASIC Solicitors: Kemp Strang - General Purpose Liquidators O'Neill Partners - Special Purpose Liquidators File Number(s): 2003/86446

EX TEMPORE Judgment 1HIS HONOUR: By Interlocutory Process dated 28 November 2011, Messrs Steven Sherman and Peter Walker, the General Purpose Liquidators ("GPL") of One.Tel (in liquidation) ACN 068 193 153 ("One.Tel"), sought determination of the question which arose in the winding up of One.Tel, namely whether, in the circumstances which then prevailed, Order 2, made by Barrett J on 16 July 2009, continued to be an appropriate mechanism for the payment of the claims for legal costs and disbursements made by Mr Paul Weston in his capacity as the Special Purpose Liquidator ("SPL") of One.Tel. 2Under s 511(1) of the Corporations Act 2001 (Cth) the Court may determine any question arising in the winding up of a company. 3Controversies arose between the GPL and the SPL with respect to the fees and disbursements which the SPL was seeking to be paid, including in respect of fees and disbursements being incurred by him in proceedings 2003/86446 brought by certain parties, including One.Fone Australia Pty Ltd, for orders seeking his removal ("the removal proceedings"). This resulted in Barrett J making orders on 19 December 2011, including Order number 5 which provides as follows: Pending the determination of the question asked in the GLP's interlocutory process dated 28 November 2011, there be paid to O'Neill and Partners the amount of $518,489.19 plus GST (being the equivalent of the whole of the disbursements including counsel's fees and two thirds of the professional fees of O'Neill Partners certified by the SPL for the period from 2 May 2011 to 30 September 2011) 4The shortfall in payment is $198,968.78 (plus GST). The SPL now moves for an order that that amount be paid to him. 5I am not prepared to make an order in such terms. However, neither the GPL nor the SPL now seek that the question the subject of the interlocutory process dated 28 November be answered. There is now no reason why I should not direct that, notwithstanding the terms of order 5 made on 19 December 2011, the GPL is justified in making the payment claimed by the SPL. 6To the extent that it is necessary to vary the 19 December order to permit that payment now to be made, I hereby do so. 7The GPL does not oppose the giving of an appropriate direction. As I made clear during submissions, this direction does not determine the validity of any claim by the SPL which is paid by the GPL. 8I direct that the GPL is justified in paying to the SPL the sum of $218,865.66. Order 5 made by the Court on 19 December 2011 is dissolved. 9I note that no party puts that the regime determined and ordered on 16 July 2009 is no longer appropriate.