Trustee remuneration notifications

1. Acknowledgements

   1. Sections of this practice document have been written with reference to the guidance given in the Australian Restructuring Insolvency and Turnaround Association (“ARITA”) Code of Professional Practice (“the ARITA Code”).
   2. Please note the ARITA Code is updated from time to time.  The most recent version may be accessed from their website at www.arita.com.au.

2. Introduction

   1. Pursuant to Division 70 of the Insolvency Practice Rules (Bankruptcy) 2016 (“the Rules”), registered trustees may be required to issue to a regulated debtor and the creditors certain notices and reports relating to their remuneration, depending on the stage and progress of an administration: 
      
      • initial remuneration notice
      • remuneration approval report
      • remuneration claim notice.
   2. The purpose of this practice document is to outline the position of the Inspector-General in Bankruptcy in regard to the above notices and reports that a registered trustee in bankruptcy is required to send to the regulated debtor and creditors in relation to their remuneration in the course of administering a regulated debtor’s estate.^[1]
   3. This practice document has been updated to reflect amendments to the Bankruptcy Act 1966 introduced from 1 September 2017 by the Insolvency Law Reform Act 2016 (“the ILRA”) and applies to ongoing administrations^[2] of a regulated debtor’s estate.  The ILRA saw the introduction of the Insolvency Practice Schedule (Bankruptcy) 2016 (“the Schedule”; Schedule 2 of the Bankruptcy Act) and the Rules.
   4. This practice document should be read in conjunction with the following practice documents, which contain related guidance about trustee remuneration 
      • Remuneration entitlements of a registered bankruptcy trustee
      • Determination of a trustee’s remuneration by the Inspector-General in Bankruptcy
      • Reviewing remuneration of trustees and costs of third party service providers.

   5. Remuneration and costs reviews

   6. Reviewing remuneration of trustees and costs of third party service providers explains the process by which the Inspector-General may review: 
      • a registered trustee’s claim for remuneration (on application by a creditor or regulated debtor), or
      • the costs of a third party that provides services in the administration of the regulated debtor’s estate (on application by a trustee).
   7. A review by the Inspector-General of a registered trustee’s claim for remuneration will encompass both the trustee’s professional fees and certain disbursements.
   8. The ARITA Code distinguishes between professional and non-professional disbursements.  The former category includes fees charged by lawyers, accountants, auctioneers, valuers and similar professionals retained as external advisers by a trustee.  Non-professional disbursements include both external costs (such as travel, accommodation and advertising) and internal costs (such as telephone calls, postage, stationery and photocopying) incurred during an administration.
   9. In terms of the Inspector-General review process, a review of a registered trustee’s claim for remuneration will include the non-professional disbursements, whereas a review of the costs of a third party service provider will generally relate to the professional disbursements.

   10. Scope of this practice document

   11. This practice document does not relate to the Official Trustee, whose entitlement to remuneration is set out in section 163 of the Bankruptcy Act and Part 3 of the Bankruptcy (Fees and Remuneration) Determination 2015.  The Official Trustee’s remuneration is outlined on the Fees and charges page of the AFSA website.

3. Initial remuneration notice – section 70-35 of the rules

   1. A recommended initial remuneration notice (“IRN”) precedent for registered trustees of a regulated debtor’s estate to use is shown in annexure A.

   2. Contents of the IRN

   3. The IRN must contain the following information: 
      • a brief explanation of the types of methods that may be used to calculate remuneration
      • the method that the trustee proposes to use to calculate remuneration and explain why it is appropriate
      • details of the rate of remuneration
      • specify an estimate of the expected amount of the trustee’s remuneration
      • specify the method by which disbursements will be calculated.
   4. If the trustee chooses the time-cost basis method, the notice must include details about the respective rates at which the remuneration of the trustee and the other persons who will be assisting, or will be likely to assist, the trustee in the performance of their duties are to be calculated.^[3]
   5. When choosing the most appropriate remuneration method and advising creditors of why that method was chosen, it is expected that trustees will consider factors such as cost effectiveness, efficiency and the level of debt and/or expected realisations in the regulated debtor’s estate.
   6. Registered trustees are also expected to indicate in the IRN that determination by creditors will not be required if the total remuneration they expect to claim is less than the: 
      • maximum default amount under section 60-15 of the Schedule ($5105^[4] exclusive of GST, indexed)^[5] for trustees appointed, or who consented to act, on or after 1 September 2017 regardless of when the administration commenced^[6]
      • statutory minimum under former section 161B of the Bankruptcy Act ($5000 exclusive of GST, not indexed) for trustees appointed, or who consented to act, before 1 September 2017 for an administration which commenced^[7] on or after 1 December 2010, where remuneration otherwise payable is less than this amount
      • statutory minimum under former section 161B of the Act ($1849# exclusive of GST, indexed)^[8] for trustees appointed or who consented to act before 1 September 2017 for an administration which commenced^ before 1 December 2010.
   7. Controlling trustees appointed under Part X of the Act are also required to issue an IRN to creditors.^[9]

   8. When to send the IRN

   9. A trustee of a regulated debtor’s estate is required to send an IRN to the regulated debtor and creditors within 20 business days after the day the trustee receives the regulated debtor’s statement of affairs.^{[10] [11]}  If the trustee does not receive the bankrupt’s statement of affairs within 60 days after the date of bankruptcy, the IRN must be sent within 7 days after the end of the 60-day period.^[12]  In the case of the trustee of a personal insolvency agreement (“PIA”), where that trustee was not also the controlling trustee in respect of the debtor executing the PIA, the IRN must be sent within 20 business days after the PIA is executed.^[13]
   10. It is mandatory to provide the IRN to the regulated debtor and creditors in every regulated debtor’s estate.  It does not matter if the estate has no money or that the registered trustee does not intend having creditors determine their remuneration.
   11. It is not necessary for the incoming trustee to send an IRN when there has been a change of trustee.  However, where the incoming trustee seeks to have their remuneration calculated in a manner that differs substantially from the outgoing trustee, the incoming trustee should consider whether a notice along the lines of the IRN should nevertheless be sent to creditors and the regulated debtor.
   12. There is no prescribed or approved form for this notice. Registered trustees are expected to take guidance from the recommended precedent in annexure A.  This has been modelled on information in the ARITA Code.

   13. What can affected parties do if dissatisfied with the IRN?

   14. If the regulated debtor or creditors are dissatisfied with the content of the IRN, they should first endeavour to resolve their concerns directly with the trustee.  If this does not result in a satisfactory outcome, they have the right to: 
       • request additional information from the trustee under Subdivisions E^[14] or D^[15] of Division 70 of the Schedule
       • seek a change of trustee by asking the trustee to convene a meeting under subsection 90-35(1) of the Schedule
       • complain to AFSA.^[16]

4. Remuneration approval report – section 70-45 of the rules

   1. Before creditors (or a committee of inspection) make a remuneration determination under section 60-10 of the Schedule, the trustee must prepare a remuneration approval report (“RAR”) setting out such matters that will enable an assessment as to whether the proposed remuneration is reasonable and the right of the regulated debtor and creditors to elect to receive a remuneration claim notice.  A recommended RAR precedent for registered trustees to use is shown in annexure B.

   2. Contents of the RAR

   3. If a registered trustee proposes to have their remuneration determined by creditors (or the committee of inspection), the trustee must give the creditors or committee a RAR that includes the following information:^[17] 
      
      1. a summary description of the major tasks performed, or likely to be performed, by the trustee
      2. the costs associated with each of those major tasks and the method of calculation of the costs
      3. the periods at which the trustee proposes to withdraw money from the regulated debtor’s estate in respect of remuneration
      4. an estimated total amount, or range of total amounts, of the trustee’s remuneration
      5. an explanation of the likely impact of that remuneration on the dividends (if any) to creditors.

   4. When to send the RAR

   5. If the trustee proposes to have their remuneration determined at a meeting of creditors, the RAR must be sent at the same time as notice of the meeting is given.^[18]
   6. It is acceptable for trustees to send the IRN and RR at the same time provided it is sent to the regulated debtor and creditors within the time-frames stipulated in paragraph 3.7 above.
   7. Provided the timeframe is met, it is also acceptable that the IRN and RAR be sent as part of an initial report to creditors and a remuneration proposal under section 75-40 of the Schedule (relating to resolutions without a meeting of creditors).
   8. In the case of joint and separate estates, the trustee is required to send a separate notice of proposed resolutions for meetings of creditors (or separate proposals under section 75-40 of the Schedule) and RAR due to the different voting rights that apply to creditors of joint and separate estates and the effect of section 110 of the Bankruptcy Act on the distribution of property realisations.
   9. Registered trustees are expected to take guidance from the recommended precedent shown in annexure B, which has been partly modelled on information in the ARITA Code.

   10. What can affected parties do if dissatisfied with the RAR?

   11. If the creditors or committee of inspection are dissatisfied with the content of the RAN, they should firstly endeavour to resolve their concerns directly with the trustee.  If this results in an unsatisfactory outcome, they have the right to: 
       • abstain from voting on, or reject a proposal for, the trustee’s remuneration
       • seek a change of trustee by asking the trustee to convene a meeting under subsection 90-35(1) of the Schedule
       • complain to AFSA.^[19]
   12. If creditors (or committee of inspection) reject, or fail to vote on, a proposal to determine remuneration, the trustee may apply to the Inspector-General for a remuneration determination.  See Determination of a trustee’s remuneration by the Inspector-General in Bankruptcy for more information about this process.

5. Remuneration claim notice – section 70-47 of the rules

   1. A recommended remuneration claim notice (“RCN”) precedent for registered trustees to use is shown in annexure C.

   2. Contents of the RCN

   3. A regulated debtor or a creditor may elect to receive an RCN within 20 business days after receiving a RR.  If a regulated debtor or creditor elects to receive an RCN from the trustee it must include the following information:^[20] 
      • the total amount of remuneration claimed by the trustee
      • details of the work performed for which the remuneration is claimed
      • details of the method of calculating the amount of remuneration claimed
      • details of the amount of disbursements claimed
      • details of the method of calculating the amount of disbursements claimed
      • an explanation of any variation from the amounts set out in the RAR in relation to the remuneration claimed and the method of calculating the amount of remuneration claimed
      • a statement advising the regulated debtor and the creditors that they may, within 20 business days after receiving the notice, request the Inspector-General to review the amount of remuneration claimed by the trustee.
   4. The term “claimed” refers to the right and ability to draw now or at a future date.  In practice, it will be more than likely that regulated debtor’s estate has to have money in it as a precursor to sending an RCN.  One of the primary purposes of sending an RCN is to inform the regulated debtor and creditors of their right of review if they are dissatisfied with the trustee’s claim for remuneration.  This dissatisfaction will only have a material effect and be capable of a practical outcome if the trustee has realised sufficient money to pay themself the remuneration in dispute.  However, it will be open to trustees to send the RCN before there is actually money in the estate to satisfy the remuneration claim, so long as the work for which they are claiming has been undertaken.
   5. It is important that any variation in the amount taken in remuneration or disbursements from the amount originally determined by creditors in the RAR is clearly explained to the satisfaction of the regulated debtor and creditors.  In other words, the trustee has an obligation to explain why what they took in remuneration or disbursements is inconsistent with or different to the prior determination made.  It is only variations that affect the amounts set out in the RAR that need to be explained.  For example, a variation that need not be explained in the RCN is where an employee of the trustee is replaced by another employee at the same classification and their services are charged out at the same hourly rate.
   6. It is expected that each RCN is accompanied by either a Form 2 – Trustee’s Accounts of Receipts and Payments or receipts and payments summary in the estate so the bankrupt and creditors can compare the value of receipts that have been taken in remuneration and other items.  If the regulated debtor or a creditor(s) is seeking to gain further information about the trustee’s remuneration, it is expected that trustees will promptly send to them a detailed work-in-progress (“WIP”) and certainly no later than 5 business days of the request being made, or such later time as the trustee may agree with the person making the request – this is a requirement of section 70-1 of the Rules.  A WIP is a detailed schedule of the time spent and work performed by the trustee and their staff in the administration of the estate.
   7. The RCN should refer back to the relevant RAR and clearly state the total remuneration previously determined.
   8. Guidance on how to request the Inspector-General to review the trustee’s remuneration is provided in Reviewing remuneration of trustees and costs of third party service providers.

   9. When to send the RCN

   10. If a regulated debtor or a creditor has elected to receive a RCN and the total remuneration claimed by the trustee is greater than the maximum default amount, the trustee must give them a RCN before finalising the administration.^[21]
   11. The term “finalising the administration” has a meaning consistent with subsection 145(1) of the Bankruptcy Act.  That is, this occur when the trustee has realised all property of the bankrupt or debtor, or so much of it as can, in their opinion, be realised without needlessly protracting the administration.  In the course of trustee inspections, dealing with complaints and remuneration review requests, AFSA will monitor this requirement to ensure the RCN is sent as soon as practical.
   12. Where it is determined that a trustee has needlessly drawn out the finalisation of an estate by not actioning appropriate tasks in a timely manner or not determining that a dividend will be declared when in a position to do so, AFSA will require an explanation from the trustee.  Depending on the response from the trustee, AFSA may take disciplinary action against the trustee as deemed appropriate on a case by case basis and in accordance with Regulation of bankruptcy trustees and debt agreement administrators and Involuntary cancellation of trustee registration.
   13. There is no prescribed or approved form for the RCN.  Registered trustees are expected to take guidance from the recommended precedent shown in annexure C.  This has been modelled on information in the ARITA Code.

   14. What can affected parties do if dissatisfied with the RCN?

   15. If the regulated debtor or a creditor(s) is dissatisfied with the trustee’s remuneration claim contained in the RCN, they have the right to request review of the trustee’s claim by the Inspector-General (AFSA).  Note that specific requirements must be met prior to the Inspector-General accepting a request for remuneration review.  These are detailed in Reviewing remuneration of trustees and costs of third party service providers.

6. Joint and separate estates

   1. The trustee’s obligation to send remuneration notifications is estate-based.  That is, in circumstances where joint and separate estates exist under one administration number, and where a trustee is seeking remuneration in one or more of the regulated debtor’s estates, the relevant notices and reports (i.e. IRN, RAR and RCN (if required)) need to be sent in each estate.
   2. To overcome duplication of work, it is acceptable for a trustee to send a joint report to creditors with each estate-based remuneration notices being dealt with separately and attached to the joint report.

7. When remuneration claimed is less than the maximum default amount or statutory minimum,

   1. As noted in paragraph 3.5 above, creditor approval is not required for total remuneration claims less than the maximum default amount or statutory minimum (whichever is applicable).
   2. It should be noted that if a registered trustee is seeking to claim remuneration above the maximum default amount or statutory minimum (whichever is applicable), the entire amount claimed must be approved and not just the amount in excess of maximum default amount or statutory minimum.

8. Summary of all remuneration notification and reporting requirements for trustees

   1. A summary of the notification requirements for trustees is shown in the table below. 

      1. Notice or report	To whom to send	When to send
         Initial remuneration notice (“IRN”)	Regulated debtor and creditors	Bankruptcy: within 20 business days after the day the trustee receives the statement of affairs (“SOA”).  If no SOA received within 60 days, then within 7 days after the end of that 60 days period  PIA: within 20 business days after the day the PIA is executed
         Remuneration approval report (“RAR”)	Regulated debtor, creditors or committee of Inspection	At discretion of the trustee, i.e. at the same time as seeking remuneration determination
         Remuneration claim notice (“RCN”)	Regulated debtor and creditors	Before finalising the administration

9. Conclusion

   1. This practice document outlines the Inspector-General’s position with respect to the obligations on trustees of a regulated debtor’s estate to give notices and reports in regard to remuneration.  It will be against the principles outlined in this document, the Act and the Rules (including the Standards in Division 42 of the Rules) that a trustee’s conduct of a regulated debtor’s estate will be assessed by the Inspector-General.

Annexure A – Initial Remuneration Notice (“IRN”)

<Regulated debtor’s> estate of <enter name>

Estate number: <enter number>

Initial Remuneration Notice

Section 70-50 of the Schedule to the Act

Section 70-35 of the Rules

Remuneration methods

As trustee<s> of the above named <regulated debtor’s estate>, <I/we>, <Registered Trustee/s name/s>, advise pursuant to 60-12 of Schedule 2 of the Act that there are different methods that may be used to calculate a trustee’s remuneration. <give brief explanation of various methods>

Remuneration method chosen

Given the nature of this estate I/we propose that my/our remuneration be calculated <insert remuneration method>. I /we believe this method to be appropriate because <state reason for method chosen.>

Explanation of method chosen

<Time based / Hourly rates>

The rates for <my/our> remuneration calculation are set out in the following table together with a general guide showing the qualifications and experience of staff engaged in the administration and the role they take in the administration.

^ This list is a guide only - Registered trustees should use titles appropriate to their practice

# Information that should be contained in the description column includes years of experience, qualifications, education, staff supervised

<Time-cost basis>

If charging on a time-cost basis, a capped amount for the cost of the administration, details of what services are included and the basis upon which the balance of services will be charged should be set out. If it is intended that some services will be provided on a different basis, each basis should be clearly explained as it relates to each particular service.

<Percentage basis>

If using a percentage basis of realisations, clearly documenting what the percentage is to be applied to, when the remuneration will be paid and the expected range of remuneration outcomes.

Estimate of Total Remuneration

I/we expect to claim a total amount of remuneration of approximately <$> in the administration of this estate.

What can you do if you are dissatisfied with the contents of this notice?

Contact <trustee employee contact name and contact details> to discuss why you are dissatisfied with the contents of this notice.  If you remain dissatisfied you may complain to AFSA Practitioner Surveillance or seek a change of trustee.

Date: <for bankruptcy trustees - within 20 business days after the day the trustee receives the statement of affairs (SOA). If no SOA is received within 60 days then within 7 days after the end of that 60 days period.>

For PIA trustee (who was not also controlling trustee) – within 20 business days after the PIA is executed.

Signed: <Registered Trustee/s signature/s>

Annexure B – Remuneration Approval Report (“RAR”)

<Regulated debtor’s> estate of <enter name>

Estate number: <enter number>

Remuneration Approval Report

Section 70-50 of the Schedule to the Act

Section 70-45 of the Rules

As trustee<s> of the abovenamed <regulated debtor’s estate>, <I/we>, <Registered Trustee/s name/s>, propose to have <my/our> remuneration determined by creditors or the committee of inspection.

This determination is sought for work undertaken or to be undertaken from <enter period of time from and to.>

Calculation of remuneration

Note the detail in the table above is shown as an example only.  Further guidance may be taken from reference to the ARITA code.

Description of work completed

Note the detail in the table above is shown as an example only. Further guidance may be taken from reference to the ARITA Code

<I/we> declare that the costs incurred, or to be incurred, are necessary and reasonable having regard to the value and complexity of the administration.

What can you do if you are dissatisfied with the contents of this notice?

Contact <trustee employee contact name and contact details> to discuss why you are dissatisfied with the contents of this notice. If you remain dissatisfied you may either abstain from voting on, or reject a proposal for, the trustee’s remuneration seek a change of trustee or complain to AFSA Practitioner Surveillance.

Note that if the resolution/proposal for approval of the trustee’s remuneration is not supported, the trustee may apply to the Inspector-General to determine the remuneration.  Further details on this process are contained in the Assessment by the Inspector-General in Bankruptcy of a trustee’s remuneration approval request, available on the AFSA website.

Date: <enter date>

Signed: <Registered Trustee/s signature/s>

Annexure C – Remuneration Claim Notice (“RCN”)

<regulated debtor’s> estate of <enter name>

Estate number: <enter number>

Remuneration Claim Notice

Section 70-50 of the Schedule to the Act

Section 70-47 of the Rules

<I/we> refer to the Remuneration Approval Report dated <enter date> which was determined by <creditors or committee of inspection> or <the Inspector-General> on <enter date> in the amount of <$>.

Calculation of remuneration

Note the detail in the table above is shown as an example only.  Further guidance may be taken from reference to the ARITA code.

Description of work completed

Note the detail in the table above is shown as an example only. Further guidance may be taken from reference to the ARITA Code

Explanation of variation from Remuneration Approval Report (if applicable)

The amount claimed has varied from the amounts set out in the Remuneration Report as follows.

Summary of Remuneration Determination(s) to date

Right of review

Within 20 business days after receiving this notice, you may request the Inspector-General (AFSA) review the amount of remuneration claimed.  Requests for review should be marked to the attention of AFSA Practitioner Surveillance and be addressed to Practitionersurveillance@afsa.gov.au or:
         National Allocations Team
         AFSA Enforcement and Practitioner Surveillance
         GPO Box 1550
         ADELAIDE  SA  5001

Date: <before finalising the administration>

Signed: <Registered or Controlling Trustee/s signature/s>

Attachments

Remuneration Approval Report to which this Remuneration Claim Notice relates.

Summary of receipts and payments in this estate from <enter commencement date> to <enter most current d