Brendan Behan


[extract] There are clearly divergent views expressed by the authorities on this area of law [winding up companies] and it is important for the continued confidence in commercial activity that the uncertainty generated by the differing criteria used by Courts is removed or substantially reduced. Allowing the Courts to develop the law using discretionary powers is a dangerous practice because it fuses the judicial and administrative function. It is unfortunate that the legislature did not take the opportunity with the introduction of the Corporations Act to provide further statutory interpretation of the controversial provisions and give guidance to the Courts to develop a clear and consistent policy which would reduce the substantial litigation in this area and give confidence to the commercial community and its advisers.