Case: National Australia Bank Ltd v Market Holdings Pty Ltd (in liq) (2001) (2001) 161 FLR 1
Outcome: cited
The "Caesar's wife" standard of impartiality and independence for liquidators is established beyond the need for authority, however, if support for the proposition is needed it is not necessary to go beyond Young J's comprehensive discussion of the issue in National Australia Bank Ltd v Market Holdings Pty Ltd (in liq) (2001) 161 FLR 1 at 29-32. Nevertheless, as Mr Stoljar accepted, the mere fact that a proposed liquidator's relationship with the company falls within one or more of the categories listed in s 532(c) does not preclude his or her appointment as the section itself provides that the Court has discretion in the matter. When asked what was the substance of the conflict that J P Morgan fears, Mr Stoljar was not able to put the matter higher than that his client has "an apprehension" that Mr Taylor would find it difficult to reconcile his various roles in the proceedings, particularly his role as liquidator of a company, a contingent creditor of which is his client. 15 In this case the application for reinstatement of the company has been brought for the limited purpose of this litigation. Although, once reinstated, the company exists for all purposes there is no reason to suspect that there is any purpose behind the application other than that stated. It seems to me that, as matters presently stand, the reinstatement of GC &amp; Associates has the effect of preserving the respondents' position without substantive prejudice. The main proceeding here is estimated to be long and complicated and it seems unnecessary to add further expense and delay by requiring a liquidator other than Mr Taylor to be appointed because of a potential conflict that may, in substance, never eventuate. Should the proceeding result in the company being indebted to Mr Stoljar's client, any substantive prejudice can be addressed by an appropriate application to the Court at that stage. I should also note that J P Morgan may also reserve its position in relation to the matters mentioned in [10] above. 16 The applicants on the notice of motion have brought in short minutes of order providing for the re-instatement of GC &amp; Associates Pty Ltd by ASIC; the subsequent appointment of Mr Taylor as liquidator of the company and all ancillary matters including any amendment of the cross-claim, the defence to the cross-claim and any application for security for costs. I shall make orders in accordance with those short minutes. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 25 March 2008 Counsel for the First and Second Applicants: J R Sackar QC, J Stoljar, J A C Potts, J K Taylor Solicitor for the First and Second Applicant: Clayton Utz Counsel for the First Fifth Respondents: L Foster SC, A P Spencer, T Leibman Solicitor for the First Fifth Respondents: Holding Redlich Date of Hearing: 20 March 2008 Date of Judgment: 25 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/433.html