Case: Re Application of Vouris (2004) 49 ACSR 543
Outcome: cited
In support of the application in WAD177 of 2007 it was said that the practical effect of the orders proposed would be that Messrs Rocke and Herbert would be removed in their capacity as liquidators of DUSM. I interpolate that the removal would be affected as a consequence of their tendering their resignations. As Barrett J set out in Re Application of Vouris (2004) 49 ACSR 543 the Act is silent on the effect of the resignation of one of several jointly appointed liquidators in a voluntary winding up. Messrs Read and Birch would fill the vacancies in the office of liquidator arising by reason of the resignations of Messrs Rocke and Herbert. Mr Ashton would be removed in his capacity as liquidator of Keyros and Mr Birch would fill the resulting vacancy. The costs of the application, if the orders sought were made, would be apportioned equally between DUSM and Keyros. 35 It was submitted that pursuant to s 502 of the Act the Court may fill a vacancy in the office of a liquidator where such a vacancy exists. Reference was made to the judgment of Barrett J in Re McGrath and Anor (as liqs of HIH Insurance Ltd (in liq)) (2005) 54 ACSR 55 in which it was held that the Court can make a prospective order appointing a liquidator contingent upon a vacancy being created by the liquidator's resignation. Re Application of Vouris (2004) 49 ACSR 543 was also cited. 40 Reference was made to s 449D of the Act and the decision of Barrett J in Re Application of Vouris 49 ACSR 543 that the Court can make a prospective order appointing a deed administrator contingent upon a vacancy being created by the resignation of a deed administrator. Reference was made also to s 447A as providing the Court with a very wide power to make such order as it thinks appropriate. Barrett J considered that the powers conferred on the Court by s 447A of the Act were wide enough to give the Court power to appoint a joint and several deed administrator. 41 In relation to the Creditors' Trusts reliance was placed on s 77 of the Trustees Act and s 93 of that Act under which an existing or incumbent trustee could bring to Court an application under s 77. 42 In relation to the resignation of Mr Rocke as a joint and several deed administrator, reference was made to the difficulty identified by Barrett J in Re Application of Vouris 49 ACSR 543 where a joint and several liquidator resigns or dies leaving only one of the joint and several liquidators remaining. Barrett J, it was said, held that two options were available to the Court in those situations: 1. Appoint a second liquidator jointly and severally to fill the vacancy; or 2. Remove the remaining jointly and severally appointed liquidator and then appoint the previously remaining liquidator as a sole liquidator. 43 It was said that in the case of a deed of administration the difficulties identified in Re Application of Vouris 49 ACSR 543 would not arise where two or more deed administrators remained jointly and severally appointed. The plaintiffs submitted that Birch and Read remained jointly and severally appointed deed administrators of the companies from which Mr Rocke had offered his resignation so that no vacancy in the office of a joint and several deed administrator arose by reason of that resignation. 44 It was said that the proposed orders both in respect of the deeds of administration and the creditors' trusts would not prejudice creditors. Notification and the liberty to apply would give any objecting creditor an opportunity to approach the Court. 45 Again, it was submitted that pursuant to s 443 of the Act a deed administrator had priority to recover costs and expenses properly incurred from company assets. Section 71 of the Trustees Act provided a trustee with the ability to recover costs and expenses properly incurred from trust assets. The plaintiffs submitted that the costs incurred in bringing the application were properly incurred in the administration of the deeds and the Creditors' Trusts. On that basis the deed administrators and trustees should be indemnified from the assets of the companies for the costs incurred in bringing this application on their behalf. It was submitted that the costs be apportioned equally between the companies.