Barrett JA at [1]; Gleeson JA at [9]; Tobias AJA at [304]
Decision:
1. Grant leave to the respondent to file the notice of contention dated 17 May 2013.
2. Appeal allowed.
3. Set aside the orders and declaration of Black J made on 21 June 2012.
4. In lieu thereof, declare that the respondent was, by reason of contravention of s 41 of the Registered Clubs Act 1976, not capable of being appointed as voluntary administrator of The Spanish Club Limited (the Club), by instrument of appointment dated 17 November 2008, or of acting as such voluntary administrator.
5. Direct that the proceedings be remitted to the primary judge to determine the respondent's claim in paragraphs 4, 5 and 6 of the amended interlocutory process filed 20 February 2012, that the respondent is entitled to be paid out of the assets of the Club his reasonable remuneration, costs and expenses, including legal expenses for work performed pursuant to his purported appointment as voluntary administrator and as deed administrator of the Club, on a quantum meruit basis.
6. Reserve questions of costs.
7. Grant leave to the appellants to file and serve short written submissions in relation to the costs of the appeal and at first instance within 14 days of the date of delivery of judgment. Any such written submissions are to set out both the orders sought and the reasons why those orders are sought.
8. Grant leave to the respondent to file and serve short written submissions in reply within 14 days after service on him of the appellants' written submissions contemplated by the previous order, with the appellants to have a further seven days after receiving those submissions to reply.
9. Note that the Court will determine the issue of costs on the papers.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
CORPORATIONS - voluntary administration - administrator - s 41 Registered Clubs Act 1976 - whether administrator validly appointed
CORPORATIONS - voluntary administration - administrator - s 447A Corporations Act 2001 - s 1322 Corporations Act - whether primary judge erred in exercising his discretion to make curative orders
CORPORATIONS - voluntary administration - administrator - s 128 Corporations Act 2001 - s 129 Corporations Act - whether administrator entitled to rely on statutory assumptions
CORPORATIONS - voluntary administration - administrator - attempted sale of core property without member approval - whether attempted sale was conduct prejudicial to the interests of club…
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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AGLC
Correa v Whittingham [2013] NSWCA 263
Case
[2013] NSWCA 263
Decision Date
CaseChat Overview and Summary
In *Correa v Whittingham*, the Court of Appeal of New South Wales considered an appeal concerning the validity of a voluntary administrator's appointment and subsequent actions. The dispute arose from the attempted sale of core property by the administrator of The Spanish Club Limited without the approval of the club's members, and the administrator's claim for remuneration. The primary judge had made curative orders under the *Corporations Act 2001* (Cth) to validate the appointment and actions.
The legal issues before the Court of Appeal included whether the administrator was validly appointed, given a contravention of section 41 of the *Registered Clubs Act 1976* (NSW), whether the primary judge erred in exercising discretion to make curative orders under section 447A and section 1322 of the *Corporations Act 2001*, and whether the administrator was entitled to rely on the statutory assumptions under sections 128 and 129 of the *Corporations Act 2001*. Additionally, the court considered whether the attempted sale of core property without member approval constituted conduct prejudicial to the interests of the club members.
The Court of Appeal allowed the appeal, setting aside the primary judge's orders. The court declared that the respondent, by reason of contravention of section 41 of the *Registered Clubs Act 1976*, was not capable of being appointed or acting as the voluntary administrator of The Spanish Club Limited. The proceedings were remitted to the primary judge to determine the respondent's claim for remuneration, costs, and expenses on a quantum meruit basis. The court also made directions regarding the filing of written submissions on costs.
Orders
Orders of the court
1. Grant leave to the respondent to file the notice of contention dated 17 May 2013.
2. Appeal allowed.
3. Set aside the orders and declaration of Black J made on 21 June 2012.
4. In lieu thereof, declare that the respondent was, by reason of contravention of s 41 of the Registered Clubs Act 1976, not capable of being appointed as voluntary administrator of The Spanish Club Limited (the Club), by instrument of appointment dated 17 November 2008, or of acting as such voluntary administrator.
5. Direct that the proceedings be remitted to the primary judge to determine the respondent's claim in paragraphs 4, 5 and 6 of the amended interlocutory process filed 20 February 2012, that the respondent is entitled to be paid out of the assets of the Club his reasonable remuneration, costs and expenses, including legal expenses for work performed pursuant to his purported appointment as voluntary administrator and as deed administrator of the Club, on a quantum meruit basis.
6. Reserve questions of costs.
7. Grant leave to the appellants to file and serve short written submissions in relation to the costs of the appeal and at first instance within 14 days of the date of delivery of judgment. Any such written submissions are to set out both the orders sought and the reasons why those orders are sought.
8. Grant leave to the respondent to file and serve short written submissions in reply within 14 days after service on him of the appellants' written submissions contemplated by the previous order, with the appellants to have a further seven days after receiving those submissions to reply.
9. Note that the Court will determine the issue of costs on the papers.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]