Corporations Act 2001

CHAPTER 5 - EXTERNAL ADMINISTRATION  

PART 5.2 - RECEIVERS, AND OTHER CONTROLLERS, OF PROPERTY OF CORPORATIONS  

Note: This Part applies to CCIVs with modifications: see Division 3 of Part 8B.6 .

SECTION 425   COURT ' S POWER TO FIX RECEIVER ' S REMUNERATION  

425(1)    
The Court may by order fix the amount to be paid by way of remuneration to any person who, under a power contained in an instrument, has been appointed as receiver of property of a corporation.

425(2)    
The power of the Court to make an order under this section:

(a)    extends to fixing the remuneration for any period before the making of the order or the application for the order; and

(b)    is exercisable even if the receiver has died, or ceased to act, before the making of the order or the application for the order; and

(c)    if the receiver has been paid or has retained for the receiver's remuneration for any period before the making of the order any amount in excess of that fixed for that period - extends to requiring the receiver or the receiver's personal representatives to account for the excess or such part of the excess as is specified in the order.

425(3)    
The power conferred by paragraph (2)(c) must not be exercised in respect of any period before the making of the application for the order unless, in the opinion of the Court, there are special circumstances making it proper for the power to be so exercised.

425(4)    
The Court may from time to time vary or amend an order under this section.

425(5)    
An order under this section may be made, varied or amended on the application of:

(a)    a liquidator of the corporation; or

(b)    an administrator of the corporation; or

(c)    an administrator of a deed of company arrangement executed by the corporation; or

(ca)    

if the corporation is under restructuring - the corporation with the consent of the restructuring practitioner for the corporation; or

(cb)    

the restructuring practitioner for a restructuring plan made by the corporation; or

(d)    ASIC.

425(6)    
An order under this section may be varied or amended on the application of the receiver concerned.

425(7)    
An order under this section may be made, varied or amended only as provided in subsections (5) and (6).

425(8)    

In exercising its powers under this section, the Court must have regard to whether the remuneration is reasonable, taking into account any or all of the following matters:

(a)    the extent to which the work performed by the receiver was reasonably necessary;

(b)    the extent to which the work likely to be performed by the receiver is likely to be reasonably necessary;

(c)    the period during which the work was, or is likely to be, performed by the receiver;

(d)    the quality of the work performed, or likely to be performed, by the receiver;

(e)    the complexity (or otherwise) of the work performed, or likely to be performed, by the receiver;

(f)    the extent (if any) to which the receiver was, or is likely to be, required to deal with extraordinary issues;

(g)    the extent (if any) to which the receiver was, or is likely to be, required to accept a higher level of risk or responsibility than is usually the case;

(h)    the value and nature of any property dealt with, or likely to be dealt with, by the receiver;

(i)    

whether the receiver was, or is likely to be, required to deal with:

(i) one or more other receivers; or

(ii) one or more receivers and managers; or

(iii) one or more liquidators; or

(iv) one or more administrators; or

(v) one or more administrators of deeds of company arrangement; or

(vi) one or more restructuring practitioners; or

(vii) one or more restructuring practitioners for restructuring plans;

(j)    the number, attributes and behaviour, or the likely number, attributes and behaviour, of the company ' s creditors;

(k)    if the remuneration is ascertained, in whole or in part, on a time basis:

(i) the time properly taken, or likely to be properly taken, by the receiver in performing the work; and

(ii) whether the total remuneration payable to the receiver is capped;

(l)    any other relevant matters.