RE RICON SUPER PTY LTD (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED); TRAVIS KUKURA as joint and several liquidator of RICON SUPER PTY LTD (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED) [2024] WASC 484 (S)

[2024] WASC 484 (S) Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : RE RICON SUPER PTY LTD (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED); TRAVIS KUKURA as joint and several liquidator of RICON SUPER PTY LTD (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED) [2024] WASC 484 (S) CORAM : HILL J HEARD : ON THE PAPERS DELIVERED : 12 MAY 2026 FILE NO/S : COR 112 of 2022 BETWEEN : TRAVIS KUKURA as joint and several liquidator of RICON SUPER PTY LTD (IN LIQUIDATION) First Plaintiff GREGORY BRUCE DUDLEY as joint and several liquidator of RICON SUPER PTY LTD (IN LIQUIDATION) Second Plaintiff RICON SUPER PTY LTD (IN LIQUIDATION) Third Plaintiff TRAVIS KUKURA as joint and several receiver and manager of RICON SUPER PTY LTD (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED) Fourth Plaintiff -- 1 of 9 -- [2024] WASC 484 (S) Page 2 GREGORY BRUCE DUDLEY as joint and several receiver and manager of RICON SUPER PTY LTD (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED) Fifth Plaintiff CONSUELLA JODIE LYNN First Interested Party Catchwords: Corporations - External administration - Review of disbursements and costs (including legal costs) incurred by receivers - Whether costs are proportional - Whether work was necessary - Turns on own facts Practice and procedure - Application by first interested party for leave to reopen application to rely on further affidavits - Information in affidavits available at time orders were made for filing of material - Leave refused Legislation: Legal Profession (Non-Contentious Business) Report 2023 (WA) Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022 (WA) Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2024 (WA) Result: Disbursements and costs allowed in amount of $111,428.55 Category: B -- 2 of 9 -- [2024] WASC 484 (S) Page 3 Representation: Counsel: First Plaintiff : No appearance Second Plaintiff : No appearance Third Plaintiff : No appearance Fourth Plaintiff : No appearance Fifth Plaintiff : No appearance First Interested Party : No appearance Solicitors: First Plaintiff : HWL Ebsworth Second Plaintiff : HWL Ebsworth Third Plaintiff : HWL Ebsworth Fourth Plaintiff : HWL Ebsworth Fifth Plaintiff : HWL Ebsworth First Interested Party : In Person Case referred to in decision: Re Ricon Super Pty Ltd (in liq) (recs & mgrs apptd); Kukura as joint and several liquidator of Ricon Super Pty ltd (in liq) (recs & mgrs apptd) [2024] WASC 484 -- 3 of 9 -- [2024] WASC 484 (S) HILL J Page 4 HILL J: 1 On 18 December 2024, I published reasons for my decision on the plaintiffs' application for approval of their remuneration and for directions.1 In that application, the plaintiffs did not seek approval for the payment of the legal costs they had incurred. For the reasons set out in the Primary Reasons, I considered I should exercise my discretion to review the disbursements and legal costs that had been incurred by the plaintiffs in their capacity as receivers and managers of the Ricon Superannuation Fund (Fund). 2 On 31 January 2025, I made orders for the plaintiffs to file and serve affidavits in respect of these disbursements and legal costs, and for the review to be listed for directions. The timeframes for these steps were extended by consent on 13 March 2025 and on 2 April 2025, I made orders that the application be determined on the papers. 3 On 10 March 2025, the plaintiffs filed two affidavits in respect of the costs and disbursements which it sought to have paid from the assets of the Fund, being an affidavit of Alison Jane Robertson, a partner of the plaintiffs' solicitors, and an affidavit of Travis Kukura, the first named plaintiff. In summary, the plaintiffs say that the court should approve: (a) disbursements of $29,231.62 together with further anticipated disbursements of approximately $1,000; and (b) legal costs of $212,437.84 (including counsel fees of $34,458.84). 4 On 8 May 2026, the plaintiffs filed a further affidavit of Mr Kukura in answer to a query from the court regarding whether goods and services tax was being claimed by the plaintiffs in respect of certain items. In his updated affidavit, Mr Kukura corrected a number of aspects of his previous affidavit. On the basis of these amendments, an amount of $31.062.08 is now sought for disbursements. 5 Mrs Lynn opposed any significant order being made for the plaintiffs' costs on the basis that the costs sought by the plaintiffs are disproportionate. In her submission, the plaintiffs' costs should be limited to a total of $7,500. 1 Re Ricon Super Pty Ltd (in liq) (recs & mgrs apptd); Kukura as joint and several liquidator of Ricon Super Pty ltd (in liq) (recs & mgrs apptd) [2024] WASC 484 (Primary Reasons). -- 4 of 9 -- [2024] WASC 484 (S) HILL J Page 5 6 For the reasons that follow, it is my view that the sum of $111,428.55 be paid from the assets of the Fund for the receivers' disbursements and legal costs comprising: (a) disbursements of $30,678.55; and (b) legal costs (including counsel fees) of $80,750. What amount should be allowed for the plaintiffs' disbursements? 7 Mr Kukura's affidavits set out the disbursements that have been incurred during the receivership. He attached, as annexures to his affidavit filed 10 March 2025, copies of the invoices for almost of the items claimed. In his affidavit of 8 May 2026, Mr Kukura confirmed that the goods and services tax component of each invoice should have been the subject of the claim. 8 In relation to the Cowalla Property, the following expenses have been incurred: (a) insurance premiums (statutory liability, public liability, farm pack and rural insurance) (including broker fees) - $19,539.03; (b) stamp duty on the insurance premiums - $1,637.51; (c) maintenance of firebreaks (to comply with Shire requirements) - $4,807; and (d) property repairs - $1,200.00. 9 I accept Mr Kukura's evidence that these expenses have been incurred and that it is appropriate for these expenses to be paid from the Fund. 10 In addition to these amounts, Mr Kukura's evidence is that the following disbursements have been incurred during the receivership: (a) court filing fee - $3,201.00; (b) search fees - $294.01; (c) travel costs to the Cowalla Property - $379.90; and (d) postage fees - $3.63. -- 5 of 9 -- [2024] WASC 484 (S) HILL J Page 6 11 I accept that the court filing fee and the search fees have been incurred as a consequence of the receivership and that it is appropriate for these amounts to be paid from the Fund. However, I do not consider that the travel costs or postage fees should be paid as costs of the receivership. In my view, any expenses that have been incurred of this nature properly fall within the hourly rates of Mr Kukura and the employees of his firm and no additional allowance should be made for these items. 12 For these reasons, I consider that an amount of $30,678.55 should be allowed for the plaintiff's disbursements incurred to the date of Mr Kukura's affidavit, being 10 March 2025, to be paid from the assets of the Fund. What amount should be allowed for legal costs? 13 In Ms Robertson's affidavit, she sets out in some detail the basis on which the fees proposed to be charged to the plaintiffs have been calculated; the time that has been recorded by each legal practitioner acting for the plaintiffs; and the amount she intends to invoice the plaintiffs. This evidence is summarised in a table at [24] of Ms Robertson's affidavit as follows: -- 6 of 9 -- [2024] WASC 484 (S) HILL J Page 7 14 I accept Ms Robertson's evidence that the amounts recorded in the right-hand column reflect her considered view as to the amounts she considers were reasonable, necessary and proper having regard to the complexity of this matter. From my review of her affidavit, I also accept that the hourly rates of each of the legal practitioners do not exceed the maximums set out in Table A of the relevant Costs Determinations.2 15 However, for the reasons set out in the Primary Reasons and given the amounts owed to the creditors of the Company and the Fund, being an initial debt of less than $6,000, the number of creditors (two) and the value of the estate (approximately $2 million), I do not consider the amount sought by the plaintiffs' solicitors is proportionate, either individually (by item) or collectively. 16 In assessing the reasonableness of the claim for legal costs, I have taken a broad-brush approach to the review of these costs. I have reviewed the time entries recorded in the spreadsheets annexed to Ms Robertson's affidavit, and, in relation to items 1 and 5, taken into account the relevant item in the Costs Determinations as well as the table at [4.7.1.1] of the Consolidated Practice Directions. From this, I have formed an impression as to the total amounts that have been claimed and what should be allowed. 17 In this regard, it is notable that 22 separate legal practitioners have recorded time on the matter and that the costs of 15 separate legal practitioners are sought to be recovered. In respect of four of these practitioners, an amount of less than $1,000 has been sought to be recovered. While Ms Robertson has provided an explanation for this, the change in legal practitioners working on the matter is, in my view, likely to have led to an increase in the time recorded on the file as well as inefficiencies. I do not consider these costs should be borne by the Fund. 18 It is also notable that costs in excess of $160,000 (inclusive of counsel fees) have been sought in relation to the present application. This amount far exceeds the maximum amount provided in item 10 of the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2024 (WA) of $23,430 (where senior counsel is briefed) or $15,840 (where counsel is briefed). While I accept a more 2 Legal Profession (Non-Contentious Business) Report 2023 (WA); Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022 (WA); Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2024 (WA). -- 7 of 9 -- [2024] WASC 484 (S) HILL J Page 8 useful comparison may be item 11 (motions and originating process), the maximum for this item is $67,870 (where senior counsel is briefed) or $44,400 (where junior counsel is briefed). 19 It is apparent from the schedule attached to Ms Robertson's affidavit that a relatively significant portion of the costs of this application have arisen as a consequence of the plaintiffs' refusal to transfer the assets of the Fund to Ngai Whanau Super. That said, as set out in the Primary Reasons, I accept that an application for directions was necessary and appropriate and that the plaintiffs were required to seek approval of their remuneration. However, these matters do not support or justify the quantum of the remuneration sought by the plaintiffs for their legal costs of this application of almost $130,000. 20 In considering all of these matters and taking a broad-brush approach, it is my view that the plaintiffs' legal costs should be limited to $55,750 with an additional amount of $25,000 for counsel. This comprises the following: Category Amount claimed Amount allowed 1 $8,046.00 $4,500.00 2 $11,655.00 $5,000.00 3 $3,517.00 $2,000.00 4 $3,330.00 $2,500.00 5 $129,068.00 $30,000.00 6 $2,718.00 $1,000.00 7 $1,702.00 $750.00 8 $17,943.00 $10,000.00 9 $34,458.84 $25,000.00 Total $212,437.84 $80,750.00 Mrs Lynn's interlocutory application to re-open the application 21 On 7 April 2026, Mrs Lynn filed a further affidavit in relation to this matter and by email requested the court consider the affidavit in reaching its decision. After being informed that the affidavit could not be considered as the application was being heard on the papers and the -- 8 of 9 -- [2024] WASC 484 (S) HILL J Page 9 decision was reserved, Mrs Lynn filed an interlocutory process seeking leave to reopen the application to rely on this affidavit, as well as a further affidavit dated 8 April 2026. 22 Having reviewed these affidavits, it was and is my view that the affidavits contain information that was available to Mrs Lynn at the time the decision on the application was reserved. In so far as the affidavits seek to advance Mrs Lynn's position on the application, the affidavits are consistent with the position previously expressed by her - namely, that the costs are excessive and disproportionate. 23 For these reasons, on 13 April 2026, the parties were advised that the interlocutory application was refused. Conclusion 24 For the reasons set out above, I consider that orders should be made to allow the payment from the Fund of the following amounts: (a) disbursements of $30,678.55; and (b) legal costs (including counsel fees) of $80,750. 25 I accept that, given the regrettable delay in providing my reasons for decision on this matter, it is likely that the plaintiffs have incurred some additional disbursements for insurance coverage. If the plaintiffs intend to seek approval for the payment of further disbursements from the Fund consistent with these reasons, an affidavit should be filed in support of any application within 14 days of the date of these reasons being published. If and once this has occurred, I hope that all matters between the parties can be resolved on a final basis as quickly as possible. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. VA Associate to the Hon Justice Hill 12 MAY 2026 -- 9 of 9 --