Prosecuting court-appointed liquidators in non-appointing courts : a case for overturning outdated law

Abstract

Given the national adjudication scheme established under the Corporations Act 2001 (Cth) ('Act'), which 'deals distinctly' with matters concerning liquidation and distribution of federal jurisdiction among federal and state courts, this article demonstrates it is 'plainly wrong' for Australian courts to continue to apply the principle propounded in Re Maidstone Palace of Varieties that the 'proper remedy for anyone aggrieved by [the liquidator's] conduct is to apply to [the] Court in the action in which he was appointed'. That the appointing court may invoke its inherent power to control the circumstances in which its own officers are to be subjected to personal pecuniary liability does not derogate from the fact that the requirement of appointing-court leave is directly inconsistent with the Act and impermissibly undermines the constitutional competence of nonappointing courts.