The Dominion Insurance Company of Australia Limited (subject to Scheme of Arrangement) [2013] NSWSC 898

Supreme Court New South Wales

Medium Neutral Citation: The Dominion Insurance Company of Australia Limited (subject to Scheme of Arrangement) [2013] NSWSC 898 Hearing dates: Monday 1 July 2013 Decision date: 11 July 2013 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Declare that upon the true construction of clause 8(e) of the Scheme of Arrangement in respect of the Plaintiff approved by this Court on 15 December 1986 (Scheme) and in the events which have happened, the Applicant is entitled to reasonable remuneration having regard to the prevailing rates for work by insolvency practitioners of a like nature. Declare that the sums of $56,067.75 plus GST in the sum of $5,606.77 (for the period 14 December 2010 to 23 August 2012) and $48,367.35 plus GST in the sum of $4,836.74 (for the period 24 August 2012 to 10 June 2013) are reasonable remuneration. Declare that upon the true construction of the Scheme and in the events which have happened, the Applicant is entitled to pay or recoup his remuneration (including Pitcher Partners non-insolvency related professional services), costs and expenses incurred by him from the Combined Fund (as defined in the Scheme) in the first instance. Catchwords: CORPORATIONS - External Administration - Scheme of Arrangement - remuneration of Scheme Administrator - where mechanism for determining amount of remuneration has failed - whether court has power to amend scheme of arrangement - whether on true construction of scheme documents Scheme Administrator is entitled to remuneration calculated by reference to own firm's cost structure - held, Scheme Administrator is entitled to reasonable remuneration, alternatively to quantum meruit - whether failure of mechanism to determine amount of remuneration can be remedied by slip rule - whether Scheme Administrator is entitled to payment out of combined scheme funds without recourse to specific funds Legislation Cited: (Cth) Corporations Act 2001, s 411, s 413, s 425, s 1408 (NSW) Companies (New South Wales) Code 1980, s 315, s 317, 325 (NSW) Supreme Court (Corporations) Rules 1999, r 9.1 (NSW) Uniform Civil Procedure Rules 2005, r 36.17 Cases Cited: Andrews v Colonial Mutual Life Assurance Society Limited [1982] 2 NZLR 556, 565 Attorney General v Barker Brothers Limited [1976] 2 NZLR 495 Bond Corporation Holdings v Western Australia (No 2) (1992) 7 WAR 61 Brown v Gould [1972] Ch 53 BTS Bearings Pty Ltd v Transmission Supplies Pty Ltd (1983) 1 ACLC 923 Cape v Redarb (1992) 8 ACSR 67; (1992) 10 ACLC 1272 Caratti v Hillman [1974] WAR 92; 4 ACLR 170, 173 Commonwealth Minister for Health v Ancient Order of Foresters Friendly Society in Qld (1985) 10 FCR 27 Dean-Willcocks v Nothintoohard Pty Ltd (in liq) [2006] NSWCA 311 Hill v Anderson Meat Industries Ltd [1971] 1 NSWLR 868 Hillas & Co Ltd v Arcos Ltd (1932) 38 Com Cas 23 Kempe v Ambassador Insurance Co (in liq) [1998] 1 WLR 271 (PC) Monks v Poynice (1987) 8 NSWLR 662 One.Tel Limited (in liq), (NSWSC, unreported, Black J, 27 May 2013) Re AGL Gas Networks Ltd (2001) 160 FLR 269, [2001] NSWSC 165 Re Allison, Johnson & Foster Ltd; ex parte Birkenshaw [1904] 2 KB 327 (CA) Re Forklift Sales (SA) Pty Ltd (1972) 3 SASR 21 Re Kyra Nominees Pty Ltd [1981] WAR 120 Re Matine Ltd (1998) 28 ACSR 268, Re Potters' Oils Ltd (No 2) [1986] 1 All ER 890, [1986] 1 WLR 201 Re RM Eastmond Pty Ltd (1972) 4 ACLR 801 Re SDR Apparel Pty Ltd & the Companies Act (1977) 4 ACLR 162 Re Slade Constructions Pty Ltd [1970] SASR 561 Re Telmak Teleproducts Supplies Pty Ltd (1983) 1 ACLC 1054 Re Wood and Martin (Bricklaying Contractors) Ltd [1971] 1 WLR 293 Shannon (in his capacity as receiver and manager of North East Wiradjuri Co Ltd) v North East Wiradjuri Co Ltd (No 4) [2012] FCA 836 Sudbrook Trading Estate Ltd v Eggleton [1983] 1 AC 444 Sweet & Maxwell Ltd v Universal News Services Ltd [1964] 2 QB 699 Talbot v Talbot [1968] Ch 1 Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429 Young v ACN 081 162 512 [2005] NSWSC 139, Category: Interlocutory applications Parties: The Dominion Insurance Company of Australia Limited ACN 000 980 923 (Subject to Scheme of Arrangement) - plaintiff Paul Gerard Weston - applicant Representation: Counsel: R Glasson (applicant) Solicitors: O'Neill Partners (applicant) File Number(s): 2013/ 143047