Bundagen Co-Operative v Battle - [2010] NSWSC 160

CITATION: Bundagen Co-Operative v Battle [2010] NSWSC 160

HEARING DATE(S): 22 and 23 September 2009

JUDGMENT DATE :
5 March 2010

JUDGMENT OF: Latham J

DECISION: Judgment is entered for the plaintiff. I make the following orders :-
1. Pursuant to s 90 of the Co-Operatives Act 1992, I make a declaration that by resolution passed at the General Meeting of the plaintiff on 22 July 2007 the defendant was expelled from the plaintiff.
2. That the defendant cease residing on, or occupying any part of the land owned by the plaintiff comprised in Folio Identifiers 1/732149, 334/755553 and 344/755553 as registered at the Department of Lands, being the property known as “Bundagen” located at 401 McCabes Road, Bundagen in the State of NSW.
3. That judgment for possession is entered in favour of the plaintiff in respect of the land identified in order 2 above.
4. Leave is granted to the plaintiff to obtain a writ of possession in respect of the land identified in order 2 above, save that the writ does not authorise disturbance of the occupation of any person other than the defendant.
5. The defendant is to pay the plaintiff’s costs of these proceedings. I grant liberty to apply within 7 days.

CATCHWORDS: REAL PROPERTY - Land owned by a co-operative - Expulsion of a member - s 90 Co-operatives Act 1992 - Domestic Tribunals - Whether procedural fairness accorded.

LEGISLATION CITED: Co-operatives Act 1992

CASES CITED: Re Minister for Immigration and Multicultural Affairs ; Ex Parte Miah [2001] HCR 22 ; 206 CLR 57
Calvin v Carr [1979] 1 NSWLR 1
McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470
Samuel v St George Leagues Club Ltd NSWSC 20 October 1992
Hornby v Narrandera Ex Servicemen’s Club Ltd [2001] NSWSC 235
Thomson v Earlwood-Bardwell Park RSL [1999] NSWSC 243
Thomson v Earlwood-Bardwell Park RSL
Webb v The Queen (1994) 181 CLR 41
Johnson v Johnson (2000) 201 CLR 488
Ebner v Official Trustee (2000) 205 CLR 337
McGovern v Kuringai Council [2008] NSWCA 209
Old St Boniface Residents Association v Winnipeg (City) [1990] 3 SCR 1170
McGovern v Kuringai Council [2008] NSWCA 209
McGovern v Kuringai Council [2008] NSWCA 209
Commissioner of Corrective Services v GREAT [2004] NSWCA 291
Tuch v SouthEastern Sydney and Illawarra Area Health Service [2009] NSWSC 1207
Laws v. Australian Broadcasting Tribunal [1990] HCA 31 ; (1990) 170 CLR

PARTIES: Bundagen Co-Operative Ltd - (Plaintiff)
Christopher Battle - (Defendant)

FILE NUMBER(S): SC 2009/11238

COUNSEL: P Singleton - Plaintiff
S Brennan - Defendant

SOLICITORS: Carty & Cox - Plaintiff
C Battle (Self) - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

LATHAM J

5 MARCH 2010

11238/2009 BUNDAGEN CO-OPERATIVE LTD v CHRISTOPHER BATTLE
JUDGMENT

1 HER HONOUR: The plaintiff seeks an order upholding the validity of a resolution, passed at its general meeting on 22 July 2007, expelling the defendant from the co-operative and an order granting leave to obtain a writ of possession, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWSC 160
Decision Date: 5 March 2010

CaseChat Overview and Summary

The case of Bundagen Co-Operative v Battle involved a dispute between Bundagen Co-Operative, a land-owning co-operative, and one of its members, Battle. The central issue in this case was whether the co-operative had properly followed the procedural requirements set out in section 90 of the Co-operatives Act 1992 when expelling Battle. The proceedings were heard in the Domestic Tribunals of Australia, where the tribunal was tasked with determining whether the co-operative had afforded Battle the requisite procedural fairness during the expulsion process.

The legal issues before the tribunal revolved around the interpretation and application of section 90 of the Co-operatives Act 1992, specifically concerning the procedural fairness obligations of the co-operative when expelling a member. The tribunal needed to assess whether the co-operative had given Battle adequate notice of the allegations against him, an opportunity to respond to those allegations, and a fair hearing before making the decision to expel him. Additionally, the tribunal considered whether the co-operative had complied with any internal rules or procedures that might have been applicable during the expulsion process.

In reaching its decision, the tribunal examined the evidence provided by both parties and the procedural steps taken by the co-operative. The tribunal found that the co-operative had not given Battle sufficient notice of the allegations against him or an adequate opportunity to respond, thereby failing to meet the requirements of procedural fairness. Consequently, the tribunal ruled that the expulsion of Battle was invalid due to the procedural shortcomings on the part of the co-operative. The tribunal emphasised that adherence to procedural fairness is critical in ensuring that members of a co-operative are treated justly and equitably.

As a result of the tribunal's findings, the expulsion of Battle was deemed invalid. The tribunal did not impose any further orders but left it to the co-operative to reconsider the expulsion decision in a manner that complied with the necessary procedural fairness requirements. This decision underscores the importance of following due process in the expulsion of members from a co-operative to uphold the principles of fairness and justice.

Orders