Melbourne Law School - Theses
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ItemJudicial, Administrative, or ‘Quasi-Judicial’?: Adjudicating Proofs of Debt in Liquidation( 2023)According to the High Court, when adjudicating proofs of debt, a liquidator acts quasi-judicially ‘according to the standards no less than the standards of a court or judge’. That is an onerous standard for a liquidator, who is not legally trained and invariably carries out their function in an environment hampered with severe financial constraints. This thesis seeks to unpack – and ultimately disprove – the characterisation of a liquidator’s function in adjudicating proofs as being ‘quasi-judicial’. It does so by conducting a review of the jurisprudence concerning the proof of debt procedure that applies in corporate insolvency. The review focusses on the doctrinal basis or character of the liquidator’s power, its origins in the Court of Chancery and development over the last three centuries, and the nature and extent of liquidators’ obligations when dealing with proofs. The thesis argues that, when adjudicating proofs of debt, liquidators exercise administrative power and that the function is not comparable to the adjudicative functions of courts nor administrative bodies that form part of executive government. Further, there can be no ‘one-size-fits-all’ approach when it comes to the obligations of liquidators, because their obligations are conditioned upon the financial circumstances of the particular liquidation. What is expected of liquidators will vary from appointment to appointment. The thesis concludes that the High Court’s description of the liquidator’s function in adjudicating proofs sets the bar too high and that courts have seized on the status of a liquidator as an officer of the court to describe their duties as ‘quasi-judicial’ or similar, which does not reflect contemporary standards or the fact-specific nature of liquidators’ obligations when dealing with proofs of debt.