1.1 The purpose of this practice direction is to outline the position of the Inspector-General in Bankruptcy in regard to the principles on which a private registered trustee in bankruptcy is entitled to draw remuneration, the different methods available and what constitutes reasonable remuneration. This does not apply to the Official Trustee whose remuneration is determined pursuant to the Bankruptcy Act 1966 (the Act) and the Bankruptcy (Fees and Remuneration) Determination, and is detailed in the Fees and charges.
1.2 The Act, the Bankruptcy Regulations 1996, and the Insolvency Practice Rules (Bankruptcy) 2016 (“the Rules”) set out the legislative framework for trustee remuneration1. This framework provides an entitlement for the trustee to be paid for work done in administering the estate. However, this does not automatically entitle the trustee to be remunerated for every hour of work undertaken in an administration. Sections 140, 145,162 and the review of third party costs provisions in section 167 and the regulations indicate that trustees are entitled to take remuneration and disbursements that are:
- properly fixed or on a commission basis
- reasonable and necessary
- incurred legally
- supported by documentation.
1.3 A trustee has no entitlement for remuneration other than prescribed by the Bankruptcy Act. There is no entitlement to be remunerated for work other than in their capacity as the trustee, nor for work undertaken illegally.
2.1 Two cases provide some insights as to what is needed under bankruptcy law although it should be noted that neither are cases decided under the Act.
2.2 In the Stockford1 decision Finkelstein J indicated (without deciding the issue) that prospective setting of fees on a time basis may not amount to 'fixing' for the purposes of the Corporations Act.
2.3 In the Aliance2 matter Gyles J decided that prospective fee setting on a time basis was not impermissible per se. Gyles J concluded that it was possible to have a formula that could later be relied on to calculate the remuneration, provided that the formula was objective enough. Both Stockford and Alliance support the proposition that fees cannot be set with reference to charge out rates of classes of practitioners if those classes are insufficiently defined.
2.4 There are significant differences in the fee setting regimes for corporate and personal insolvency. In the Bellin3 matter for example at paragraph 27 Goldberg J indicated that the Court might have no role at all in setting trustee remuneration in a bankruptcy context. The meaning of 'fix' may also differ.
2.5 With these decisions in mind, the Inspector-General accepts remuneration can be 'fixed' pursuant to sub-section 162(1) prospectively provided it identifies each person doing the work, that person’s category and expertise and the one relevant rate that applies to each person who does any work. Further, the expectation of both the Australian Restructuring Insolvency & Turnaround Association (ARITA) and the Inspector-General is for capping of the remuneration, with the period that the capping relates to also being stated. This provides greater clarity to creditors as to what the reasonable remuneration will be and flexibility to trustees in circumstances where the administration extends beyond the estimated period.
1 - Korda in the matter of Stockford Limited  FCA 1682 (21 December 2004)
2 - Gidley in the matter of Aliance Motor Body Pty Ltd  FCA 102 (16 February 2006)
3 - Pattison (Trustee), In the matter of Bellin (Bankrupt) v Bellin  FCA 1167 at para 27
3.1 While the Act allows for remuneration on a commission basis, it is rare for trustees other than the Official Trustee to seek to be remunerated in this way. However, there are circumstances where a commission-based fee may well better reflect the results obtained and the value contributed by a trustee, particularly in low debt, high asset estates.
4.1 In relation to bankruptcies, personal insolvency agreements and section 188 authorities executed on or after 1 December 2010, trustees are permitted to draw remuneration that is reasonably and necessarily incurred up to the amount of $5,000 without seeking creditor approval.
4.2 Where creditor approval is sought for an amount in excess of $5,000 the entire amount must be approved and not just the amount greater than $5,000.
4.3 Note: Former Regulation 8.08 which allowed (in the absence of creditor approval) remuneration to be drawn at 85% of the scale of charges set out in Guide to Hourly Rates published by the Insolvency Practitioners Association of Australia (IPA2), has no application to personal insolvency administrations that commenced on or after 1 December 2010.
5.1 A trustee plays a central role in the administration of estates under the Act and is under a general duty to exercise the powers committed to him/her in such a fashion that the objects of the Act, including those of equality between creditors and fairness to bankrupts and debtors are served (see Re Lamb4).
5.2 The minimum standard required of the trustee is that he/she shall handle the assets with a view to achieving the maximum return from the assets to satisfy the claims of the creditors and to provide the best surplus possible for the bankrupt, (see Mannigel v Aitken5).
4 - Re Lamb; Ex parte Registrar in Bankruptcy (1984) 1 FCR 391
5 - Mannigel v Aitken (1983) 77 FLR 406 at 408-409
Standards relating to remuneration
5.3 The Standards contained in Division 42 of the Rules set out the following requirements applicable to registered trustees generally:
42-60 Costs incurred to be necessary and reasonable
In conducting an administration, a registered trustee must:
(a) incur only those costs that are necessary and reasonable; and
(b) before deciding whether it is appropriate to incur a cost, compare the amount of the cost likely to be incurred with the value and complexity of the administration.
42-65 Rate for tasks undertaken by trustee’s staff
(1) This section applies if the remuneration of a registered trustee is worked out wholly or partly on a time‑cost basis.
(2) The registered trustee must ensure that time billed for a task undertaken in conducting an administration is charged at the appropriate rate for the level of staff who would be reasonably expected to undertake the task.
42-70 Keeping proper records in relation to work done
A registered trustee must ensure that proper records are kept that:
(a) adequately describe the nature of the work; and
(b) if the trustee’s remuneration is worked out wholly or partly on a time‑cost basis—provide evidence of the time spent on work done in conducting an administration.
5.4 In the often quoted Adsett case6 the Full Bench of the Federal Court considered how the proper sum payable to a trustee was to be determined referring to the following principles:
- a trustee must exercise judgement so as to save the estate unnecessary expenditure of money
- the remuneration to which the trustee is entitled is to be just and proper or reasonable remuneration in all the circumstances for the work carried out by the trustee. The right to payment is only lost for a specific reason as, for example, if no work was done or needed to be done or misconduct by the trustee
- a trustee is entitled as of right to full indemnity out of the trust estate against all his/her costs, charges, and expenses properly incurred. The words ’properly incurred’ mean reasonably as well as honestly incurred
- trustees ought not to be visited with personal loss on account of mere errors in judgement which fall short of negligence or unreasonableness.
5.5 Against this background it is the Inspector-General’s view that it is not reasonable to charge fees or costs relating to work undertaken by the trustee:
- when litigating based on self-interest (but see below comments in relation to the Wenkart decision)
- when work undertaken is not in the capacity of trustee
- in continuing to administer an estate that should have been finalised particularly when a surplus of assets over debts has existed and the trustee has not had due regard to the wishes of the bankrupt
- relating to an annual inspection by the Inspector-General’s delegates; in responding to an Inspector-General investigation into a complaint lodged pursuant to section 12 of the Act unless the complaint is spurious; or relating to an investigation in contemplation of disciplinary action, such as show cause action under section 40-40 of Schedule 2 to the Act, the Insolvency Practice Schedule (Bankruptcy).
5.6 Each of these points is discussed in more detail below. There are other circumstances outlined in this document where the trustee has no entitlement to be remunerated as trustee.
6 - Adsett v Berlouis (1992) 37 FCR 2013
Litigation for self interest
5.7 The Adsett test as to whether a trustee is entitled to remuneration in connection with litigation was 'whether the expenditure was reasonably as well as honestly incurred'. This reflects the principle that trustees must not act recklessly in instigating litigation and that the costs of unnecessary litigation will be payable by the trustee personally and not from the estate. The Court in that case also stated that, in the case of a small and easily dissipated fund, all litigation should be avoided unless the chance of success is such as to render it desirable in the interests of the estate that the necessary risk should be incurred. Finally, the Court stated that, where the resources applied to litigation are extravagant, the expenses would not be regarded as proper and must be borne by the trustee personally.
5.8 This view was further supported in the Swain7 matter where Wilcox J had to determine whether the trustee became involved in litigation on behalf of the estate or on behalf of himself. Wilcox found that the action was of self-interest, particularly since the trustee was seeking retrospective approval by the Court of his decision to sell a property having previously overlooked the need for creditor approval, and therefore the trustee was personally liable for costs and not entitled to be remunerated from the estate. This self interest view was further supported in the two Doolan v Dare8 decisions in which the Court found that the trustee had acted improperly in borrowing funds to pay out creditors in the hope of preventing her removal, as trustee, by creditors. However in the Wenkart9 decision. The Full Court found that a trustee was entitled to remuneration for defending successfully, “in the face of sustained opposition from Dr Wenkart, the remuneration, costs, charges and expenses he had claimed at the time of the annulment ….It is true, in a sense, that the litigation was undertaken by Mr Pantzer for his benefit, as the primary judge observed. In the same sense, any litigation into which a trustee might be drawn concerning remuneration, disbursements and expenses is litigation for the trustee’s benefit. But to characterise it this way does not necessarily answer the question whether the trustee (or former trustee) has been properly involved in the litigation as an incident of having acted as a trustee charged with the responsibility of administering the bankrupt’s estate”
7 - RE Swain; Commissioner of Taxation v. William Edward Andrew as Trustee of the Estate of John Philip Swain, Angus Bartley and Cameron Thorburn No. NX 247 of 1988 FED No. 1001/95 Bankruptcy
8 - Dare v Doolan  FCA 461 (20 April 2004) and Doolan v Dare  FCA 682 (27 May 2004)
9 - Pantzer v Wenkart  FCAFC140 (28 September 2006)
Other work not in the capacity of trustee
5.9 In Re: Ide, a NSW Supreme Court case,10a receiver went to a rural property. The grazier appeared with a rifle, which he fired. The bullet ricocheted and struck the grazier’s sister, who later died. The receiver spent some time assisting the police with their inquiries, which he later sought to bill to the receivership. The Court denied his claim for remuneration for this time. At 58, Ferris J’s views in the Maxwell11case received further airing:
'one does not indemnify the receiver for loss, one looks to the value of the work to the partnership. In the present case the value of assisting the police with their enquiries to the partnership must be close to nil.'
5.10 At 59, Young CJ concluded that:
' I think it is important to note that assisting police with any enquiry falls into a greater civic duty that surpasses all professional duties. That the receivers’ representative was a witness to the shooting and unfortunate killing of Ms Fallon places on them a civic responsibility to ensure that justice is done by assisting police in any way they can, for the greater benefit of the community.'
10 - Ide v Ide  NSWSC 751 (17 August 2004)
11 - Mirror Group Newspapers v Maxwell (No 2)  1 BCLC 638
When further action by the trustee is not warranted
5.11 The Inspector-General’s expectation is that where the bankrupt is solvent or has resources to pay out all the debts, the trustee should identify this early and give the bankrupt an opportunity to pay and take advantage of section 153A before incurring any unnecessary expense, adopting a minimalist approach to the administration, safeguarding assets and working with the bankrupt.
5.12 In the Townsend case12 the Court considered appropriate trustee remuneration in an annulment application. The creditors had been paid and the bankrupt had attempted to pay the trustee’s remuneration relatively early in the administration. The trustee had refused to give a section 153A annulment believing that the investigation of a complaint made by the bankrupt to the regulator and the possibility of her litigating would increase his remuneration. He could therefore not say that all the debts were paid.
5.13 In the primary decision Coker FM considered that the fees were excessive because the trustee had failed 'to bring this matter to a successful conclusion' and ruled the trustee was only entitled to remuneration and costs up to the point when he knew all creditors had been paid and the bankrupt had sought to pay his fees. However, on appeal the Court noted that AFSA had taxed the remuneration and costs of the trustee and held that those taxed costs were therefore reasonable.
5.14 The Phillips case13involved similar issues. The bankrupt, shortly after being informed of his bankruptcy, sought to have his sequestration order set aside. The trustee argued that orders annulling the bankruptcy were more appropriate which would have entitled him to indemnity for his fees from the assets. The trustee sought to be remunerated for over 50 hours of work, totalling more than $14,000, while the sole creditor’s debt was $4,888. The debt and the petitioning creditor’s costs had been paid shortly after the sequestration order was made.
5.15 The Court raised concerns about the action taken by the trustee and expressed the view that the minimum fee the trustee could recover from the bankrupt pursuant to section 161B of the Act ($1,388 at that time) was more representative of the work that should have been performed. The Court also expressed the view that trustees should adopt a more cautionary approach in those cases where:
- the sequestration order is made with respect to a relatively small debt
- the sequestration order is made in the absence of the bankrupt
- the debt is not incurred in the course of business or commercial dealings
- the bankrupt appears to have a significant asset, such as a home.
11 - Townsend v Brake  FMCA 533 (22 April 2005)
12 - Vaucluse Hospital Pty Ltd v Phillips & Anor  FMCA 44 (20 January 2006)
6.1 Pursuant to section 12 of the Act the Inspector-General may inquire into or investigate the conduct of a bankruptcy trustee or administration. The trustee is required to provide a report on matters under inquiry or investigation by the Inspector-General if requested and the Inspector-General may require the production of any books kept by a trustee and require a trustee to answer any inquiries.
6.2 Inquiries and investigations by the Inspector-General can take a number of forms. It may be an annual inspection of the trustee’s systems, practices and estates; an issue arising from the inspection; an enquiry following a complaint received or an investigation that may lead to disciplinary action, such as show cause action under section 40-40 of the Insolvency Practice Schedule (Bankruptcy).
6.3 For some time the Inspector-General has taken issue with registered trustees charging the estate for time spent in corresponding with AFSA Regulation and Enforcement. It has been the Inspector-General’s position that in the ordinary course the estate should not bear this cost. This issue has been addressed in the ARITA Code of Professional Practice where it states:
'A practitioner should not claim remuneration for time spent:
- communicating with regulators regarding complaints about the practitioner or the conduct of a particular administration, except where the complaint is spurious;
- on regulator surveillance, professional audits or inspection of files, or on peer reviews; or
- unsuccessfully defending a breach of the law or this Code.'
6.4 This practice imposes an obligation on AFSA Regulation and Enforcement to ensure that trustees are not put to unnecessary time and costs in responding to what might be considered spurious complaints. It follows that AFSA Regulation and Enforcement, not the trustee, should decide when this is the case. If AFSA Regulation and Enforcement has completed an investigation of a complaint, and a further complaint is made which does not raise new issues, the onus is on AFSA Regulation and Enforcement to respond to the complainant without putting the trustee to further unnecessary expense. In some circumstances, for example, if a complainant is persistent and AFSA Regulation and Enforcement is required to approach a trustee again in relation to the same issues, the complaint may be regarded as spurious and it may be appropriate for remuneration to be claimed from the estate. In such cases AFSA Regulation and Enforcement will advise the trustee.
7.1 Section 42-70 of the Rules sets out the following requirement:
42‑70 Keeping proper records in relation to work done
A registered trustee must ensure that proper records are kept that:
(a) adequately describe the nature of the work; and
(b) if the trustee’s remuneration is worked out wholly or partly on a time‑cost basis—provide evidence of the time spent on work done in conducting an administration.
7.2 Trustees not able to verify their remuneration by reference to these records will be required to refund any related remuneration.
8.1 In 2004 the Inspector-General outlined how trustees were to treat third party payments in Part X administrations (see Bankruptcy Regulator newsletter Volume 3 Issue 1 June 2004). It is worth repeating that direction here 14:
'Instances have occurred in Part X matters and in some bankruptcies where arrangements have been made for the controlling trustee’s or trustee’s remuneration to be paid by a third party without that amount being properly authorized. Such arrangement for payments constitute a failure to comply with the provision of section 162 which provides the mechanism by which a trustee can be remunerated, either by a resolution passed at a meeting of creditors or in accordance with regulation 8.08.
Pursuant to section 210 of the Act, sections 162 and 165 apply to Part X administrations as well as to bankruptcies, subject to the modifications in Schedule 6.
There are serious implications if unauthorized amounts are accepted. Such arrangements are in breach of paragraph 165(1)(a) which provides:
A trustee of the estate of a bankrupt shall not:
(a) make an arrangement for receiving, or accept, from the bankrupt or any other person, in connection with the bankruptcy, any gift, remuneration or pecuniary or other consideration or benefit beyond the remuneration fixed in accordance with this Act;
The serious nature of such a breach is reflected in sub-section 165(2) which provides that a trustee who contravenes subsection (1) is guilty of contempt of court. Trustees should ensure that the provisions of section 162(4) are applied when remuneration is taken regardless of the source of the funds, including those provided by third parties.'
8.2 Similarly, in the administration of bankrupt estates under Part IV an issue of concern is the appropriateness or otherwise of a trustee arranging with the debtor to be remunerated or indemnified by the debtor or related third party in return for consenting to act as trustee on a debtor’s petition bankruptcy.
8.3 Some trustees have provided feedback suggesting that requesting surety or an up-front payment from the debtor or related third party is consistent with the principle already set out in section 161B of the Act, which provides a personal enforceable right for a trustee to recover the minimum prescribed fee directly from the bankrupt when assets or income contributions are not forthcoming. It has also been suggested that a trustee should have some ability to be paid for the work undertaken when divisible property or contributions are doubtful and that these funds assist a trustee in better performing their duties.
8.4 It remains the Inspector-General’s view that unless certain conditions are met (see paragraph 8.7 below), this practice is inappropriate and contrary to bankruptcy law and practice. A fundamental principle in bankruptcy administration is that a trustee is entitled to be indemnified for their reasonable remuneration and costs from trust funds15. Only once it is determined that such funds are not available is a trustee entitled to utilize section 161B to pursue the bankrupt for the minimum approved fee.
8.5 It has been recognized by the Courts that a trustee cannot expect to recover all their costs and remuneration in every bankruptcy and that the scale of fees set by a trustee for themselves and their staff reflect this risk. In Vaucluse Hospital Pty Ltd v Phillips16 Riethmuller FM said:
“…it must also be borne in mind that undertaking the role of trustee is a function that a trustee embarks upon aware of the inherent risk that he or she may not be remunerated. If an estate contains no assets that can be realised then the trustee will remain without remuneration, unless creditors are prepared to fund investigations. Prescribed remuneration rates are higher than the scale fees for similar work carried out in the course of litigation, presumably (at least in part) to recompense trustees for the risk inherent in the function.
The result is that a lack of remuneration ‘may be an incident of the risk associated with the performance of the trustee's duties in the period between the sequestration order and the expiry of the 21 days’: see Garrett v Deputy Commissioner of Taxation  FMCA 19 at  per Lindsay FM. It is certainly a well accepted incident of the risk inherent in the performance of the trustee’s duties in assetless estates.”
8.6 In supporting these conclusions, the Inspector-General does not accept the argument of cost recovery as rationalizing the practice of asking the debtor for funds where there is a risk of no assets.
8.7 The only circumstances where such a payment might be accepted as valid is where the trustee:
- has informed the debtor of the income contribution regime and that any other payments or surety is purely voluntary
- has informed the debtor of alternative choices of trustee, should the debtor not be prepared to voluntarily make the payment
- reports to creditors on the source and basis of the funds
- does not endeavor to execute legally enforceable contracts concerning the payment and does not pursue the debtor for any payment other than as prescribed in section 161B
- takes remuneration in accordance with section 162.
8.8 This position has been endorsed in the ARITA Code of Professional Practice.
14 - Note references to Regulation 8.08 and section 161B in paragraphs 8.1 to 8.7 inclusive are only in respect of bankruptcies, section 188 authorities and personal insolvency agreements that commenced before 1 December 2010.
15 - Adsett v Berlouis (1992) 37 FCR 201 paragraphs 53-54
16 - Vaucluse Hospital Pty Ltd v Phillips & Anor  FMCA 44
Treatment of funds if voluntarily paid
8.9 Voluntary payments that meet the conditions (in paragraph 8.7 above) made to the trustee by the debtor or by a third party related to the debtor must be banked into the estate account. If the payments are taken as remuneration, then section 162 relating to approval of remuneration applies and the funds attract the realisation charge.
8.10 It has been suggested that the words in subsection 6(1) of the Bankruptcy (Estate Charges) Act 1997 (BEC Act) 'received by a person' should be read as 'realisations by the trustee' relating to divisible property and contributions. The Inspector-General does not support this proposition.
8.11 The guiding principle in determining liability to pay the charge is whether the relevant amount was 'received' by a person mentioned in subsection 6(1) of the BEC Act, and that the amount was received 'by the person in that capacity' as required by subsection 8(2) of the BEC Act during the charge period (less certain exclusions).17
8.12 Accordingly, in considering whether a trustee is liable to pay the charge in relation to a particular receipt, it is necessary to determine whether the amount was received by the person in their capacity as trustee of the estate of a bankrupt under the Act.18
8.13 The Act includes a number of machinery provisions relating to the BEC Act.19 The BEC Act and the Act should be read together as part of the same scheme for the regulation of bankrupt estates. Expressions used in the BEC Act ordinarily have the same meanings as in the Act, subject to a contrary intention.20The Act includes a number of provisions concerning amounts received by a person in their capacity as trustee of the estate of a bankrupt.
8.14 Hence provisions in the Act concerning the receipt of money by a person in their capacity as the trustee of a bankrupt estate should be read as referring to the same amounts received by the person in their capacity as trustee of a bankrupt estate under the BEC Act.
8.15 It has also been suggested that payments by third parties taken as fees pursuant to the Act can be paid directly to the trustee’s private account or the firm’s account operated by the trustee, thus avoiding the realisations charge. Subsection 168(1) of the Act provides that a registered trustee ‘shall not pay into a private account any moneys received by him or her as trustee’ and subsections 169(1) and 169(1A) provide that a trustee ‘must pay all money received by him or her on account of the estate to the credit of a single interest bearing account’, and ‘must only pay into the account money received by the trustee on account of the estate of a bankrupt’.
8.16 Further, trustees should be aware that payments made to them directly, and this includes to the firm accounts, that relate to remuneration, could breach the prohibition on receiving additional benefits contained in paragraph 165(1)(a) of the Act, giving rise to a contempt of Court and likely registration cancellation proceedings being commenced.
8.17 Hence the second principle in applying the BEC Act is that the money that must be paid into a single interest bearing account and not mixed with other money under the Act is the same money that for the purposes of the BEC Act is received by the person in their capacity as trustee of the estate of a bankrupt under the Act, and to which the charge imposed by paragraph 6(1)(a) of the BEC applies (subject to any specific exclusion from the charge).
8.18 As a corollary, money that does not have to be paid into a separate single interest bearing bank account, is not subject to the charge imposed by paragraph 6(1)(a) of the BEC Act. An example is the right to recover the minimum statutory amount of remuneration pursuant to section 161B of the Act, which is a personal right of the trustee and not in their capacity as trustee.21
8.19 With the exception of the BEC Act subsection 8(2) exclusions, when a trustee receives a compliant voluntary payment from the bankrupt or third party and applies it in payment of remuneration and costs, they receive the funds in the capacity as trustee of the estate. The funds must be deposited into the appropriate interest bearing account on behalf of the estate and realisations charge is payable on the funds.
17 - BEC Act section 8
18 - Wenkart v Pantzer (No 7)  FCA 1211 (30 October 2003), per Lindgren J. at paragraphs 16 and 21:http://www.austlii.edu.au/au/cases/cth/federal_ct/2003/1211.html
19 - See Bankruptcy Act, Part XV entitled ‘Provisions relating to the Bankruptcy (Estate Charges) Act 1997
20 - BEC Act subsection 4(2)
21 - The right to recover the minimum statutory amount of remuneration directly from the bankrupt or debtor under section 161B does not apply to bankruptcies, section 188 authorities or personal insolvency agreements that commence or are executed on or after 1 December 2010.
9.1 Regulation has a number of key roles concerning remuneration. While there is the option for resolution of disputes concerning remuneration through other means (such as taxation, review or litigation), these may be expensive options. Regulatory intervention in disputes can and will occur where considered appropriate. Section 12 provides AFSA Regulation and Enforcement with the power to investigate, and where issues of concern arise either during the annual inspection program or through a complaint being made, AFSA Regulation and Enforcement will examine the remuneration claimed by reference to the principles stated in this practice direction and the standards in Division 42 of the Rules.
9.2 Where breaches of the law (which includes the performance standards) or lack of record keeping are identified a trustee will be asked to take remedial action, including any refund of remuneration not properly taken or justified. This may also lead to counselling or, in serious cases, to either litigation or disciplinary action being initiated.