Australian Securities and Investments Commission v Atlantic 3 Financial (Aust) Pty Ltd [2004] QSC 422

jaooij Q5C 439. State Reporting Bureau Queensland Government Department of lustice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. REVISED COPIES ISSUED State Reporting Bureau Date: 23 November, 2004 SUPREME COURT OF QUEENSLAND ... CIVIL JURISDICTION DOUGLAS J No 4426 of 2003 AUSTRALIAN SECURITIES AND INVESTMENTS Applicant COMMISSION and ATLANTIC 3 FINANCIAL (AUST)PTY LTD First Respondent (ACN 056 262 723) BRISBANE ..DATE 11/11/2004 JUDGMENT YARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal iffence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for heir protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those :ategories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 5 -- HIS HONOUR: This is an application for an order that the 1 remuneration and disbursements of the applicants, Gregory Michael Moloney and Peter Ivan Felix Geroff, as investigative accountants appointed by order of this Court dated 27 May 2003 incurred in relation to an application filed in these 10 proceedings on 11 September 2003, be determined in the amount of $178,555.64 inclusive of GST. They had been appointed investigative accountants by McMurdo J on 27 May 2003 and had previously sought remuneration for 2 C work performed from 27 May 2003 through to 17 July 2003. This application for remuneration is for work done by them in preparing and bringing a remuneration claim for the period commencing 22 September 2003. 30 The procedure for the Court to follow was set out in reasons for judgment delivered by Justice Mullins on 7 May 2004 in ASIC v. Atlantic 3 Financial (Aust) Pty. Ltd [2004] QSC 133 at [15] in reliance upon some earlier decisions referred to there by her Honour and I propose to adopt a similar course here. 40 It is worth setting out in a little detail what led to this application being brought. On 11 September 2003 the applicants filed an application and an affidavit seeking remuneration for the period 27 May 2003 to 17 July 2003. That 50 application was resisted, particularly by the second and third respondents who are not represented here before me today because no order affecting their interests is sought. 11112004 T13/KMS38 M/T 1/2004 (Douglas J) 2 JUDGMENT 60 -- 2 of 5 -- 1 The objectors were required by Justice Mullins to provide a notice of objection on 25 September 2003. On 30 December 2003 it was served on the applicants, consisted of 89 pages containing 696 separate objections. It required a very significant amount of work by the applicants and their 10 employees to respond to the 696 separate objections, the response including five volume of exhibits. There was a three day hearing of the matter between 2 February 2004 and 4 February 2004 and on 7 May 2004 her Honour 20 determined that the applicants were entitled to remuneration for $183,451.40 for fees and $17,742.21 for outgoings. That was almost entirely the full amount they had sought, apart from a deduction of less than $3,000 made by her Honour. 30 The second and third respondents lodged an appeal from that decision which was subsequently discontinued with them paying the applicants' costs of and incidental to the appeal. On 7 September 2004 her Honour ruled on the costs of the first 40 hearing, ordering that the bulk of the applicants' legal costs incurred be awarded on an indemnity basis against the second and third respondents in respect of the matters arising or incidental to the service of the respondent's notice of objection which was criticised stringently by her Honour. 50 Notably, she said it had an immense effect on the work required on the part of the accountants to respond and prepare for the hearing of the application for the approval of their 11112004 T14&15/SAC24 M/T 1/2004 (Douglas J) 3 JUDGMENT 60 -- 3 of 5 -- remuneration and disbursements; see ASIC v. Atlantic 3 Financial (Aust) Pty Ltd [2004] QSC284 at [15]. This application is as a result of the work that the applicants had to perform to support their claim allowed by her Honour for fair and reasonable remuneration, dealing with material which required them to go far beyond what they should reasonably have been required to do. There is an affidavit by Mr Maloney, filed 14 October 2004, dealing with the claimed expenses. Notably, the amount claimed before the service of the notice of objection is only $11,855.50 in fees and $319.40 in outlays. Her Honour's view of the matter was such that even that sum would not have been necessary but for the objections because she was satisfied that the material provided in support of the claim originally was enough to establish it. One can then see from Exhibit GMM3 to that affidavit the costs incurred in respect, essentially of the notice of objection and the hearing of the matter, and the subsequent appeal. Those figures were $141,340 for fees and $7,194.11 in outlays, with some further minor expenses incurred after 26 June 2004 detailed in Exhibit GMM4 , comprising $1,611 in fees and 30 cents in outlays. The fee charges and scales applied by the applicants' firm have been proved before me and seem to me to be reasonable and I feel that I can infer from her Honour's comments and the nature of the hearing that a great deal of work was required to respond to the objections by the second and third 11112004 T14&15/SAC24 M/T 1/2004 (Douglas J) 1 10 20 30 40 50 4 JUDGMENT 60 -- 4 of 5 -- 1 respondents which is reflected in the work that has been done. There is no opposition to the application, either from the applicant Australian Securities and Investments Commission or from the first respondent's liquidators. It seems to me that the material does establish that the remuneration claimed is fair and reasonable and although there is no objector I am persuaded that the work done was required by the nature of the opposition to the previous claim for remuneration. I have been provided with a statement of account reflecting in appropriately itemised form the details of the work done, the identity of the persons who did the work, the time taken for doing the work and the remuneration claimed accordingly. That statement has been verified by Mr Maloney's affidavit and it seems to me that I have been provided with sufficient information to enable me to perform my function. Accordingly, I propose to make an order granting the application in the form of a draft which I expect to be handed to me. 11112004 T14&15/SAC24 M/T 1/2004 (Douglas J) HIS HONOUR: I have added in the words after "2003" in paragraph 2 " (including the sums referred to in the affidavit of Neil John Abercrombie filed 9 January 2004)". 10 20 30 40 50 5 JUDGMENT 60 -- 5 of 5 --