Kelly, in the matter of Halifax Investment Services Pty Ltd (in liquidation) (No 9)

• Jurisdiction: Australia Federal only
• Judge: GLEESON J
• Judgment Date: 02 July 2020
• Neutral Citation: [2020] FCA 925
• Court: Federal Court
• Date: 02 July 2020

FEDERAL COURT OF AUSTRALIA

Kelly, in the matter of Halifax Investment Services Pty Ltd (in liquidation) (No 9) [2020] FCA 925

File number:	NSD 2191 of 2018
Judge:	GLEESON J
Date of judgment:	2 July 2020
Catchwords:	INSOLVENCY – application by liquidator – Div 60 of Pt 3 of the Insolvency Practice Schedule (Corporations) to the Corporations Act (2001) (Cth) –– determination of appropriate source of funds for payment of liquidation costs and expenses– reasonableness of liquidators remuneration PRACTICE AND PROCEDURE – order under s 54A of the Federal Court of Australia Act 1979 (Cth) –appointment of referee – determination of costs by referee – conduct of inquiry – form of written report
Legislation:	Insolvency Practice Schedule (Corporations) to the Corporations Act (2001) (Cth) ss 60-05, 60-10(1)(c), 60-10(3)(b), 60-10(4), 60-12, 60-15, 90-15, 90-23(6), 90-23(7), 90-26(4) Federal Court of Australia Act 1979 (Cth) ss 37M, 54A Insolvency Practice Rules (Corporations) 2016 rr 28.65(7), 28.67, 90-7(2)
Cases cited:	Deputy Commissioner of Taxation v Italian Prestige Jewellers Pty Ltd [2018[ FCA 983 In the matter of Primespace Property Investment Limited (in liquidation) [2016] NSWSC 1821 Kadam and ors v MiiResorts Group 1 Pty Ltd (No 4) [2017] FCA 1139; 252 FCR 298 Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2012] FCA 558; (2012) 203 FCR 520 Re Roslea Path Ltd (in liquidation) [2013] 1 NZLR 207 Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96; (1998) 16 ACLC 1653
Date of hearing:	22 May 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Category:	Catchwords
Number of paragraphs:	67
Counsel for the Plaintiffs:	E Holmes and C Trahanas
Solicitor for the Plaintiffs:	K&L Gates
Counsel for the First Defendant:	E Hyde
Solicitor for the First Defendant:	Maddocks
Counsel for the Second Defendant:	A Kawolski
Solicitor for the Second Defendant:	Turks Legal
Counsel for the Third Defendant:	A Munro
Solicitor for the Third Defendant:	Murdoch Clarke
Solicitor for the Fourth Defendant:	E Phelan of Gilbert + Tobin
Counsel for the Fifth Defendant:	S Munro
Solicitor for the Fifth Defendant:	Anderson Lloyd
Counsel for the Sixth and Seventh Defendants:	EL Smith
Solicitors for the Sixth and Seventh Defendants:	Tailored Legal Solutions Limited

ORDERS

		NSD 2191 of 2018
IN THE MATTER OF HALIFAX INVESTMENT SERVICES PTY LTD (IN LIQUIDATION) (ACN 096 980 522)
BETWEEN:	MORGAN JOHN KELLY AND PHILIP ALEXANDER QUINLAN AS JOINT AND SEVERAL LIQUIDATORS OF HALIFAX INVESTMENT SERVICES PTY LTD (IN LIQUIDATION) (ACN 096 980 522) First and Second Plaintiffs ; HALIFAX INVESTMENT SERVICES PTY LTD (IN LIQUIDATION) (ACN 096 980 522) Third Plaintiff
AND:	CHOO BOON LOO First Defendant ; ELYSIUM BUSINESS SYSTEMS PTY LTD (ACN 110 669 282) Second Defendant ; JASON PAUL HINGSTON (and others named in the Schedule) Third Defendant

JUDGE:	GLEESON J
DATE OF ORDER:	2 July 2020

THE COURT ORDERS THAT:

Source of funds

1. Pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations), being Sch 2 to the Corporations Act 2001 (Cth) (IPS), the first and second plaintiffs (liquidators) are justified in applying the following funds in the specified accounts of investors of Halifax Investment Services Pty Ltd (In Liquidation) (Halifax AU) and Halifax New Zealand Limited (In Liquidation) (Halifax NZ) to their remuneration, costs and expenses and the legal expenses reasonably incurred by the first, second, third, fourth, and fifth defendants in acting as representative defendants, to the extent that the funds are held by Halifax AU or the liquidators on behalf of Halifax AU:

   1. Australian dollars (AUD) in client accounts on the Interactive Brokers AU trading platform (IB AU) and Interactive Brokers NZ trading platform (IB NZ), which hold only AUD as a base currency, have positive cash balances and have no open positions;

   2. AUD in client accounts on IB AU and IB NZ, which hold AUD as the base currency and have open positions comprised entirely of cash in other currencies and where all cash balances are positive;

   3. US dollars (USD) in client accounts on IB NZ, which hold only USD as a base currency, have positive cash balances and have no open positions;

   4. USD in client accounts on IB NZ, which hold USD as the base currency and have open positions comprised entirely of cash in other currencies and where all cash balances are positive;

   5. New Zealand dollars (NZD) in client accounts on IB NZ, which hold only NZD as a base currency, have positive cash balances and have no open positions; and

   6. NZD in client accounts on IB NZ, which hold NZD as the base currency and have open positions comprised entirely of cash in other currencies and where all cash balances are positive.

Referral to referee

2. Pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) (FCA Act), the following questions be referred to Tony Tesoriero (referee) for inquiry and report in accordance with the Rules of Court:

   1. whether the remuneration of the liquidators, set out in the Report on Remuneration and Internal Disbursements for the period September 2019 to November 2019 dated 18 February 2020 is reasonable, taking into account any or all of the matters listed in s 60-12 of the IPS and, if not, what remuneration is reasonable?

   2. whether the remuneration claimed by the liquidators, set out in the Report on Remuneration and Internal Disbursements for the period December 2019 to May 2020 is reasonable, taking into account any or all of the matters listed in s 60-12 of the IPS and, if not, what remuneration is reasonable?

   3. whether the remuneration claimed by the liquidators, for the period June 2020 to August 2020 is reasonable, taking into account any or all of the matters...