Mitchell Ball has chosen to abandon a final remuneration claim in the winding up of Speedy Ventilation Pty Ltd (Speedy) after a contributory asked the court to scrutinise the Mackay Goodwin director’s fees going back as far as 2016.
“Mr Ball’s application for additional remuneration had the difficulty that, on any view, the remuneration claimed was large by reference to the ultimate distribution to contributories and real issues of proportionality might have arisen.” NSW Supreme Court judge Ashley Black.
While it might have hurt Ball to forego a final pay day the decision was probably what persuaded contributory and Speedy director Tracey Fellows to abandon his application for a review of Ball’s remuneration claims in 2016 and 2018, notwithstanding the amount of time that had passed and the fact that creditors had approved them.
Fellows’ application was brought after Ball applied to the courts in May this year for approval of further and final remuneration from 2016 to the conclusion of the winding up.
At the same time Ball had applied for special leave to distribute a surplus, but as the ex tempore reasons of NSW Supreme Court judge Ashley Black reveal, Fellows asserted that if approved by the court, the additional and final remuneration would unjustly eat into the surplus intended for contributories such as himself.
For his part the judge saw problems with an application for a review where the remuneration had long been paid and then spent after being approved by creditors.
He also expressed disquiet about reviewing aspects of the liquidation “given the passage of time since the remuneration had been approved, and the likely deterioration of recollection and loss of documents bin that period”.
But Fellows’ bid for a review wasn’t the only thing bothering his honour.
“Mr Ball’s application for additional remuneration had the difficulty that, on any view, the remuneration claimed was large by reference to the ultimate distribution to contributories and real issues of proportionality might have arisen,” the judge said.
As you’ll have noted his honour said: “might have arisen”. As it turned out the respective difficulties never arose because each party agreed to abandon the claims that most upset their opponent.
Further reading:
This goes to show that the issue of “proportionality” in claims for remuneration is alive and well. However, anyone complaining has to make any challenge/objections sooner rather than later.