The decision of Acting Justice Debelle in the New South Wales Supreme Court on 21 May 2009 brought to a close twelve years of litigation concerning the receivership and termination of the Australian Men’s Health Trust (the “Trust”) and liquidation of the trustee, Australian Men’s Health Pty Limited (“AMH”).
The Trust was placed into receivership in 1997. In 2005, at the conclusion of the receivership, the Receiver paid the sum of $171,675.83 into Court. In the interim period the trustee company was wound up, and in 2002 I became the liquidator after replacing one of my former partners who had resigned the position.
In August 2006 I made an application to the Court for recovery of the funds by way of reimbursement for the costs and expenses associated with the administration of the Trust. On 8 December 2006 Justice White gave judgment ruling that the Liquidator was entitled to recover from the money paid into Court his reasonable remuneration and expenses associated with the administration of the Trust, and as a first claim on the fund, the costs of the application to obtain those monies.
Justice White outlined a number of categories of work for which I might obtain reimbursement for my remuneration and expenses. I had to show that the remuneration and expenses that I was claiming fell into these categories. Justice White adjourned the application to allow me to present evidence substantiating my remuneration and expenses in those various categories.
The amount of costs and expenses significantly exceeded the amount paid into Court, so a second application was made to Justice White to recover the whole amount paid into Court. Justice White, in a second judgment issued on 30 January 2008, adhered to his earlier reasoning and confirmed the requirement that I provide detailed evidence of my costs and expenses in connection with the ‘administration of the Trust’ and the application for recovery of the funds paid into Court.
The final hearing took place before Acting Justice Debelle on 21 May 2009. At the hearing a director of the plaintiff made an eleventh hour application for reimbursement from the moneys of costs and expenses incurred by him in providing an account of the dealings and transactions of Glazier Holdings Pty Limited (a beneficiary of the trust) to the Receiver. Acting Justice Debelle rejected the application on the basis that any such claims should have been made against the Receiver and that no such claim was made, despite having many prior opportunities to do so.
Ultimately, Acting Justice Debelle accepted that the amount of the costs and expenses exceeded the amount paid into Court and ordered that the amount of $171,675.83 plus any interest accrued thereon be paid.
This was the end of a very long saga that would not have brought money into the liquidation if we had not persisted with the claim over those years.
[Glazier Holdings Pty Ltd (in Liq) v Australian Men’s Health Pty Ltd (in Liq) & 4 Ors  NSWSC 447 (21 May 2009)]