Case: Re Aplin, Brown &amp; Co Ltd [1902] St R Qd 67
Outcome: discussed
Uninstructed by authority, I would have assumed that where one of two liquidators ceases to hold office, the other succeeds to the office. Barrett J may have thought similarly: see Vouris at [12]. However, his Honour considered that there was a contrary indication in McPherson's Law of Company Liquidation (4 th ed, LBC Information Services, 1999) of which Professor Andrew Keay is the author. Footnote 237 at p 297 of that notable work states that where one of two joint liquidators dies, the appropriate course is for the Court to appoint another liquidator to act jointly with the survivor, or, in the alternative, to remove the survivor and reappoint him or her as sole liquidator. The learned author cites in support a decision of Sir Samuel Griffith, then Chief Justice of the Supreme Court of Queensland, in Re Aplin, Brown &amp; Co Ltd [1902] St R Qd 67 ( Aplin ). Barrett J considered that the relevant provisions of the then Companies Act of Queensland were sufficiently similar to those of the Corporations Act to give rise to the conclusion that any difficulties of the kind suggested in that case "also conceivably arise under the present provisions" (at [13]). 71 It is necessary to go back to Aplin . Two persons, Aplin and Brown, were appointed as liquidators in a voluntary winding up, without any determination being made as to the exercise of their powers. They acted in the winding up jointly until Aplin died. For reasons that do not matter, the company in general meeting was not competent to act, and so there was no question of its filling of the vacancy pursuant to s 130 of the Companies Act 1863 (Qld). A representative on behalf of one of the contributories made an application by petition to the Supreme Court of Queensland for an order replacing Aplin or appointing Brown as sole liquidator. 72 Section 123(6) of the Companies Act 1863 provided that when several liquidators were appointed, their powers were exercisable by such one or more of them as might be determined at the time of their appointment "or in default of such determination by any number not less than two". In the circumstances, the effect of this provision was that although there was still a liquidator in place, he was incapable of continuing to exercise the powers of "the liquidators". 73 Until recently, the Corporations Act contained in s 506(4) an analogue of s 123(6) of the Queensland Act of 1863. Section 506(4) provided: When several liquidators are appointed, any power given by this Act may be exercised by such one or more of them as is determined at the time of their appointment, or in default of such determination, by any number not less than 2. [my emphasis] 74 I was minded to follow the course established by Aplin and Vouris of removing the continuing liquidator, Mr Condon, and appointing him as sole liquidator. However, the position must now be considered in the light of the recent amendments made by the Corporations Amendment (Insolvency) Act 2007 (referred to at [61] above). Consistently with the new s 530 (set out at [61] above), s 506(4) of the Corporations Act was repealed by that amending Act (see s 3, Sch1, Pt 3, Item 113.)