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Clark v Framlingham Aboriginal Trust

Clark v Framlingham Aboriginal Trust

Case [2014] VSC 367 6 August 2014

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2014 00672

IN THE MATTER
OF FRAMLINGHAM ABORIGINAL TRUST

BETWEEN:

AARON CLARK JEREMY CLARK and TIM CHATFIELD	First Plaintiff Second Plaintiff Third Plaintiff
v
FRAMLINGHAM ABORIGINAL TRUST and	First Defendant
GEOFFREY (POSSUM) CLARK-UGLE	Second Defendant

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 and 24 June 2014
DATE OF JUDGMENT:	6 August 2014
CASE MAY BE CITED AS:	Clark v Framlingham Aboriginal Trust
MEDIUM NEUTRAL CITATION:	[2014] VSC 367

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ADMINISTRATIVE LAW – Election of members to the committee of management of the Framlingham Aboriginal Trust established under Aboriginal Lands Act 1970 (Vic) (the Act) - Dispute as to entitlement of the plaintiffs as registered shareholders to vote and otherwise exercise the rights of shareholders in the election of the committee of management of the Trust – Entitlement to vote based on shareholding in the Trust – Plaintiffs took transfer of shares in the Trust from a previous shareholder who was declared bankrupt – At the time of the election of the committee of the Trust the trustee in bankruptcy of the former shareholder had taken no steps to lay claim to the shares under s 58(1) of the Bankruptcy Act 1966 (Cth) – Held plaintiffs entitled to vote.

Whether affairs of trust being conducted in an oppressive manner within the meaning of s 27(1) of the Act – Whether plaintiffs aggrieved by anything which the Trust had done or failed to do within the meaning of s 27(2) of the Act – Relief granted - Aboriginal Lands Act 1970 (Vic), s 27.

The Act provided for staggered elections of members of the committee – Whether staggered elections could be reintroduced under the Act where they had previously fallen into abeyance – Held the Act did not provide a mechanism to reintroduce staggered elections – Aboriginal Lands Act 1970 (Vic), s 15.

PRACTICE AND PROCEDURE – Consideration of power to make declarations – Supreme Court (General Civil Procedure) Rules 2005, r 23.05.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr DM Ryan QC with Mr T Greenway	Shayne Daley & Associates
For the Defendants	Mr JL Evans	Stratmann & Co Lawyers

TABLE OF CONTENTS

Introduction and summary........................................................................................................ 2
The relevant facts........................................................................................................................ 6
The claims of the trustee in bankruptcy.................................................................................... 27
The plaintiffs’ claims................................................................................................................. 28
The plaintiffs’ first and second complaints – decision concerning “staggered elections”......... 32
The plaintiffs’ third complaint - the decision on nominations................................................... 38
The plaintiffs’ fourth complaint – the chairman’s decision as to who could attend the annual general meeting.................................................................................................................................................. 39
The plaintiffs’ fifth complaint – that Aaron Clark was not entitled to nominate, attend or vote 40
Has the Court’s power under s 27(1) been enlivened?............................................................. 46
Has the Court’s power to grant relief been enlivened?............................................................. 51
Relief......................................................................................................................................... 53
Orders proposed........................................................................................................................ 54
Concluding observations.......................................................................................................... 54

HIS HONOUR:

Introduction and summary

The Framlingham Aboriginal Trust, the first defendant, was established by the Aboriginal Lands Act1970

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.

Continue reading Clark v Framlingham Aboriginal Trust

Details

AGLC: Clark v Framlingham Aboriginal Trust [2014] VSC 367
Case: [2014] VSC 367
Decision Date: 6 August 2014

CaseChat Overview and Summary

The plaintiffs, Clark, took transfer of shares in the Framlingham Aboriginal Trust, established under the Aboriginal Lands Act 1970 (Vic), from a previous shareholder who was declared bankrupt. The dispute arose over the plaintiffs' entitlement to vote and exercise shareholder rights in the election of the committee of management of the Trust. The issue was whether the plaintiffs, as registered shareholders, were entitled to vote in the election when the trustee in bankruptcy had not yet claimed the shares. The case was heard in the Supreme Court of Victoria.

The primary legal issue was whether the plaintiffs, having acquired shares through transfer from a bankrupt shareholder, were entitled to vote in the election of the committee of management of the Trust, given that the trustee in bankruptcy had not yet taken steps to claim the shares. Another issue was whether the Trust's affairs were being conducted in an oppressive manner, or if the plaintiffs were aggrieved by actions or inactions of the Trust. Finally, the court needed to determine if the Act allowed for the reintroduction of staggered elections if they had previously fallen into abeyance.

The Court held that the plaintiffs were entitled to vote in the election as they were registered shareholders at the time of the election. The Court found that the trustee in bankruptcy had not taken steps to lay claim to the shares under the Bankruptcy Act 1966 (Cth) at the relevant time, thus the plaintiffs' entitlement to vote was not affected. On the issue of oppressive conduct, the Court found that the plaintiffs were not aggrieved by the Trust's actions or inactions. Regarding the reintroduction of staggered elections, the Court determined that the Aboriginal Lands Act 1970 (Vic) did not provide a mechanism to reintroduce staggered elections if they had fallen into abeyance.

The Court made a declaration that the plaintiffs were entitled to vote in the election and that the Trust's affairs were not being conducted in an oppressive manner. The Court also declared that the Aboriginal Lands Act 1970 (Vic) did not provide for the reintroduction of staggered elections.

Orders