Case: Re Daily Telegraph Newspaper Co Limited (1931) 48 WN (NSW) 236
Outcome: cited
It will be observed that the reference to 'reasonable' remuneration is a gloss upon the words of the Act and is described by his Honour as arising from 'necessary implication'. That implication may, no doubt, be given effect to in the operation of s 449E(2) but is of doubtful relevance to the construction of s 449E(1). There is much else of relevance in the judgment in Stockford which is too lengthy to reproduce but some other passages repay reproduction. His Honour said (at [24] and [30] [31]): 'The natural meaning of the word "fix" in the context of an entitlement to "such remuneration as is fixed by a resolution of [creditors]" is, so it seems to me, to quantify that remuneration, that is to calculate or ascertain the amount of remuneration: Mayne v Jaques [1960] HCA 23 ; (1960) 101 CLR 169, 173, 174, 180. See also In re Gallard; Ex parte Harris [1892] 1 QB 532, 544. Thus, remuneration will be "fixed" if it is stated as a money sum, or is based on a formula which is capable of being applied according to some objective standard so the sum "can be calculated or ascertained definitely": Fraser Henleins v Cody [1945] HCA 49 ; (1945) 70 CLR 100, 128. In the case of a formula all the objective elements must be identified. Other cases which support this approach in related contexts include, in Canada: Hill v State (1913) 14 DLR 158, 163; Beuregard v The Queen in right of Canada (1983) 148 DLR (3d) 205, 235; Royal Bank of Canada v Bjorklund (1985) 36 Man R (2d) 54, 59; and in the United States: Zimmerman v Carfield 42 Ohio St 463, 468 (1885); Board of Supervisors of Yavapai County v Stephens 177 P 261, 262 (1919); Culberson v Watkins 119 SE 319, 322 (1923); Woodcock v Dick 222 P 2d 667, 669 (1950); Powers v Isley 183 P 2d 880, 884 (1974). ... 'The question arises whether the approval of prospective fees charged on a time basis amounts to "fixing" or "determining" the liquidator's remuneration. On one view such approval does no more than fix the rate at which remuneration is to be charged; as the method sets no limit to the amount to be charged it may not "fix" the remuneration. At least there must be real doubt about the validity of the practice. It is not, however, a matter which I need resolve, for the issue does not arise squarely on the facts and no submissions were directed to the question. To reach a concluded view would require consideration of, among other things, the knowledge of the practice by Parliament when the Companies Acts were re-enacted or amended. If Parliament knew of the practice and did not change the statute that is relevant to its interpretation. I should say that if the practice be irregular that would not mean that a liquidator must complete his administration before he receives any remuneration. He could be allowed interim remuneration while work is being performed, leaving the precise amount of his remuneration to be fixed when the winding up is complete. In any event, the problem may not be as large as at first it seems. Oftentimes, especially in a complex administration, it will be too difficult to fix fees prospectively having regard to the matters that should be taken into account, as I will later explain. For this reason courts have from time to time refused to fix fees prospectively: for instance Re Daily Telegraph Newspaper Company Limited (1931) 48 WN (NSW) 236. Be that as it may, whatever be the correct meaning of "fixing" remuneration, it was not "fixed" in this case. The resolutions purporting to fix the administrators' remuneration did so by reference to the rates in the administrators' report. According to those rates work performed by persons occupying the same position could attract a different hourly charge. There was no criteria by reference to which one could determine which hourly charge would be applied. In reality it was left to the administrators to decide what the rate would be. In this state of affairs it was the administrators and not the creditors who fixed their remuneration.' [emphasis added] 27 Counsel for ASIC responded to the argument based upon practical inconvenience by suggesting that interim payments could be authorised, as suggested by Finkelstein J in Stockford (at [30]) or that a certain monetary sum could be fixed on the basis that the administrator should have the right to seek further remuneration at a later meeting (cf Re Daily Telegraph Newspaper Co Limited (1931) 48 WN (NSW) 236). (See also Re Clynton Court Pty Ltd (subject to a deed of company arrangement); Korda (as joint and several deed administrators of Clynton Court Pty Ltd (subject to a deed of company arrangement v The J Aron Corporation (2005) 53 ACSR 432; (2005) 23 ACLC 710; [2005] FCA 543.) ASIC suggested that the convenience of avoiding additional meetings be given little, if any, weight.