Australian Capital Territory Numbered Regulations Australian Capital Territory Numbered Regulationssubstitute
9.2 Determination by court of remuneration of administrator (Corporations Act, s 449E (1) (c) and (1A) (c))
(1) This rule applies to an application by the administrator of a company under administration, or of a deed of company arrangement, for an order under the Corporations Act, section 449E (1) (c) or (1A) (c) determining the administrator's remuneration.
(2) At least 21 days before filing an originating process, or interlocutory process, seeking the order, the administrator must serve a notice of the administrator's intention to apply for the order, and a copy of any affidavit on which the administrator intends to rely, on the following people:
(a) each creditor who was present, in person or by proxy at any meeting of creditors;
(b) each member of any committee of creditors or committee of inspection;
(c) if there is no committee of creditors or committee of inspection, and no meeting of creditors has been convened and held, each of the 5 largest (measured by amount of debt) creditors of the company;
(d) each member of the company whose shareholding represents at least 10% of the issued capital of the company.
Note See approved form 16 (Notice of intention to apply for remuneration).
(3) Within 21 days after the last service of the documents mentioned in subrule (2), any creditor or contributory may give to the administrator a notice of objection to the remuneration claimed, stating the grounds of objection.
(4) If the administrator does not receive a notice of objection within the period mentioned in subrule (3)—
(a) the administrator may file an affidavit, made after the end of the period, in support of the originating process or interlocutory process, seeking the order stating—
(i) the date, or dates, when the notice and affidavit required to be served under subrule (2) were served; and
(ii) that the administrator has not received any notice of objection to the remuneration claimed within the period mentioned in subrule (3); and
(b) the administrator may endorse the originating process, or interlocutory process, with a request that the application be dealt with in the absence of the public and without any attendance by, or on behalf of, the administrator; and
(c) the application may be so dealt with.
(5) If the administrator receives a notice of objection within the period mentioned in subrule (3), the administrator must serve a copy of the originating process, or interlocutory process, seeking the order on each creditor or contributory who has given a notice of objection.
(6) An affidavit in support of the originating process, or interlocutory process, seeking the order must—
(a) include evidence of the matters mentioned in the Corporations Act, section 449E (4); and
(b) state the nature of the work performed or likely to be performed by the administrator; and
(c) state the amount of remuneration claimed; and
(d) include a summary of the receipts taken and payments made by the administrator; and
(e) state particulars of any objection of which the administrator has received notice; and
(f) if the administration is continuing—give details of any matters delaying the completion of the administration.
9.2A Review of remuneration of administrator (Corporations Act, s 449E (2))
(1) This rule applies to an application for review of the amount of the remuneration of an administrator under the Corporations Act, section 449E (2).
Note The amendment to the Corporations Act, section 449E made by the Corporations Amendment (Insolvency) Act 2007 (Cwlth) applies in relation to an administrator appointed on or after 31 December 2007—see Corporations Act, s 1480 (6).
(2) The application may be made only after the remuneration has been determined under the Corporations Act, section 449E (1) (a) or (b) or (1A) (a) or (b).
(3) At least 21 days before filing the originating process or the interlocutory process applying for a review, the plaintiff or applicant must serve a notice of intention to apply for the review and a copy of any affidavit on which the plaintiff or applicant intends to rely (other than an affidavit required by subrule (9)), on the following people:
(a) if there is a committee of creditors or a committee of inspection—each member of the committee;
(b) if the remuneration of the administrator was determined by the creditors—each creditor who was present, in person or by proxy, at the meeting of creditors at which the remuneration was determined;
(c) each member of the company whose shareholding represents at least 10% of the issued capital of the company.
Note See approved form 16A (Notice of intention to apply for review of remuneration).
(4) Within 21 days after the last service of the documents mentioned in subrule (3), any person on whom the notice has been served may serve on the plaintiff or applicant a notice—
(a) stating the person's intention to appear at the hearing of the application for review; and
(b) setting out the issues that the person seeks to raise before the court.
(5) A person mentioned in subrule (3) is entitled to be heard on the application for review, but only (unless the court otherwise orders) if the person has served on the plaintiff or applicant a notice in accordance with subrule (4).
(6) If the plaintiff or applicant is served with a notice in accordance with subrule (4), the plaintiff or applicant must serve a copy of the originating process or interlocutory process applying for the review on each person who has served the notice.
(7) The administrator must file an affidavit stating the following matters:
(a) the matters mentioned in the Corporations Act, section 449E (4);
(b) the nature of the work performed or likely to be performed by the administrator;
(c) the amount of remuneration claimed by the administrator if that amount is different from the amount of remuneration that has been determined;
(d) a summary of the receipts taken and payments made by the administrator;
(e) particulars of any objection to the remuneration as determined, of which the administrator has received notice;
(f) if the administration is continuing — details of any matters delaying the completion of the administration.
(8) The affidavit mentioned in subrule (7) must annex a copy of the report that the administrator was required to prepare before remuneration was determined.
(9) The plaintiff or applicant must—
(a) file an affidavit stating whether any notice or notices under subrule (4) has or have been served; and
(b) annex or exhibit to the affidavit a copy of the notice or notices.