The liquidator: a hybrid of agent, fiduciary and officer

Abstract

What is the legal role of a liquidator? The liquidator acts as an agent for the company in liquidation, yet they are really principals who make decisions to sell, contract, and so forth. They do replace the directors and officers of the company, who have fiduciary obligations under the common law and the Corporations Act 2001 (Cth). Furthermore, when appointed by the court, the liquidator is also then an officer of the court, and owes further obligations. With such truisms, where does this leave a liquidator? They are a hybrid dutyholder, governed by obligations from agency law, fiduciary law more generally and their position as officer of the company in liquidation. This article comments on the current position of liquidators beyond their statutory regulation and duties. It sheds further light onto the high expectations placed on the twenty-first century, non-legally trained insolvency practitioner.