Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council - [2006] NSWSC 1008

No judgment structure available for this case.

CITATION: Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council & Ors; Hillig v Darkinjung Pty Ltd & Ors; Darkinjung Local Aboriginal Land Council v Warner & Ors [2006] NSWSC 1008
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 25/07/06, 26/07/06, 27/7/06, 28/7/06, 08/08/06, 09/08/06, 29/08/06, 30/08/06, 31/08/06, 01/09/06, 05/09/06, 06/09/06, 07/09/06
Written submissions: 13/09/06, 15/09/06, 18/09/06, 22/9/06

JUDGMENT DATE :
3 October 2006

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Submissions to be made as to consequences of findings that (a) payments by Darkinjung Local Aboriginal Land Council to Darkinjung Pty Ltd were beyond statutory authority and capacity of land council; (b) such payments were made for improper purpose; and (c) payments by Darkinjung Pty Ltd, ostensibly as trustee of charitable trust, to enterprise companies were not in furtherance of charitable purpose and did not involve distribution in conformity with trust instrument. In relation to voluntary administration of each of Darkinjung Funeral Fund Pty Ltd, Darkinjung Housing Pty Ltd and Darkinjung Projects Pty Ltd, declaration that appointment of administrators invalid, void and of no effect

CATCHWORDS: ABORIGINALS AND TORRES STRAIT ISLANDERS - local Aboriginal land council constituted under State law - authority and capacity as a statutory corporation - statutory objects, functions, powers, duties and responsibilities - CORPORATIONS - statutory corporations - delineating authority and capacity by reference to objects, functions and powers - duty to administer property within confines of statutory scheme - whether ultra vires to transfer property to charitable trust benefiting relevant Aboriginal group - whether transfer authorised by appropriate corporate action - TRUSTS AND TRUSTEES - charitable trusts - property held on trust for purpose of benefiting Aboriginal group "by doing" certain acts - extent to which purpose charitable - whether application of funds to enterprises is within charitable purpose - whether power to apply and distribute income and capital permits loans to enterprises - CORPORATIONS - voluntary administration - whether directors formed genuine opinion as to insolvency or likely insolvency - whether resort to Part 5.3A for improper purpose

LEGISLATION CITED: Aboriginal Land Rights Act 1983, ss.3, 4(2), 36(3), 38, 40, 41, 47, 49, 50, 51, 52, 53, 54, 62, 73, 77, 78, 81, 82, 152, 153, 158, 222, Parts 10, 11, 12
Aboriginal Land Rights Amendment Act 2001, s.51
Aboriginal Land Rights Regulation 2002
Charitable Trusts Act 1993, s.23
Companies and Securities Legislation (Miscellaneous Amendments) Act 1983 (Cth), s.33
Corporations Act 2001 (Cth), Part 5.3A, ss.124, 136, 232, 233, 249B(1), 436A, 437(2)(c), 447A, 461(1)(a), 461(1)(k)
Interpretation Act 1987, ss.21, 33, 50

CASES CITED: Aboriginal Community Benefit Fund Pty Ltd v Batemans Bay Local Aboriginal Land Council (1996) 22 ACSR 56
Aboriginal Community Benefit Fund Pty Ltd v Batemans Bay Local Aboriginal Land Council (1997) 42 NSWLR 593
ACN 002 596 509 Pty Ltd v Minshull (2005) 53 ACSR 598
Aloridge Pty Ltd v Christianos (1994) 13 ACSR 99
Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37
Ashbury Carriage & Iron Company (Limited) v Riche (1875) LR 7 HL 653
Attorney-General v Great Eastern Railway Company (1880) 5 App Cas 473
Attorney-General v Perpetual Trustee Co Ltd (1940) 63 CLR 209
Attorney-General for the State of Victoria v Housing Commission (1979) 44 LGRA 258
Australasian Memory Ltd v Brien (1998) 29 ACSR 344
Bagshaw v The Eastern Union Railway Company (1850) 2 Mac & G 389; 42 ER 151
Barby v Perpetual Trustee Co Ltd (1937) 58 CLR 316
Baroness Wenlock v The River Dee Company (1883) 36 ChD 674n
Baroness Wenlock v The River Dee Company (1885) 10 App Cas 354
Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Ltd (1998) 194 CLR 247
Beaudesert Shire Council v Smith (1966) 120 CLR 145
Birkdale District Electric Supply Co Ltd v Corporation of Southport [1926] AC 354
Blacktown City Council v Macarthur Telecommunications Pty Ltd (2003) 47 ACSR 391
Bovis Lend Lease Pty Ltd v Wily (2003) 47 ACSR 351
Canadian Bank of Commerce v Cudworth Rural Telephone Co [1923] SCR 618
Case of Suttons Hospital (1612) 10 Co Rep 23a; 77 ER 960
Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418
Communities Economic Development Fund v Canadian Pickles Corporation [1991] 3 SCR 388
Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531
Dareton Local Aboriginal Land Council v Wentworth Council (1995) 89 LGERA 120
Downey v Crawford (2004) 51 ACSR 182
East Anglian Railways Co v Eastern Counties Railway Co (1951) 11 CB 775; 138 ER 680
Eastern Counties Railway Co v Hawkes (1855) 5 HL Cas 331; 10 ER 928
Equiticorp Finance Ltd v Bank of New Zealand (1993) 32 NSWLR 50
Flynn v Mamarika (1996) 130 FLR 219
German v Chapman (1877) 7 ChD 271
Harvey v Adelaide & Hindmarsh Tramway Company (1881) 15 SALR 136
Hazell v Hammersmith & Fulham London Borough Council [1992] 2 AC 1
Hillig v Darkinjung Pty Ltd (2006) 57 ACSR 733
Howarth v McMahon (1951) 82 CLR 442
Humphries v Proprietors Surfers Palms North Group Titles Plan 1955 (1994) 179 CLR 597
Inland Revenue Commissioners v Baddeley [1955] AC 572
IW v City of Perth (1997) 191 CLR 1
Kathleen Investments (Australia) Ltd v Australian Atomic Energy Authority (1977) 139 CLR 117
Kazar v Duus (1998) 29 ACSR 321
Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277
Lyde v Eastern Bengal Railway Company (1866) 36 Beav 10; 55 ER 1059
MacGregor v The Official Manager of the Deal & Dover Railway Company (1852) 22 LJQB 69
McMaster v Eznut Pty Ltd [2006] WASC 109
Morice v Bishop of Durham (1805) 10 Ves Jun 521; 32 ER 947
Morrison v Shire of Morwell [1948] VLR 73
New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300
New York & Maryland Line Railroad Co v Winans 58 US 30 (1854)
News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410
Northern Territory v Mengel (1995) 185 CLR 307
Parramatta City Council v Hale (1982) 47 LGRA 319
Pilkington v Inland Revenue Commissioners [1964] AC 612
Prentice v Cummins (2002) 194 ALR 94
Public Trustee v Attorney General of New South Wales (1997) 42 NSWLR 600
Re Birbank Permanent Building Society [1912] 2 Ch 183
Re Bryning [1976] VR 100
Re Mathew [1951] VLR 226
Re The Honey Pool of Western Australia (No 2) (1988) 14 ACLR 621
Salomons v Laing (1850) 12 Beav 339; 50 ER 1091
Sanpine v Koompahtoo Local Aboriginal Land Council [2005] NSWSC 365
The National Bank of Australasia v Cherry (1870) LR 3 PC 299
Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338
Thomas v West Jersey Railroad Company 101 US 71 (1870)
Wagner v International Health Promotions Pty Ltd (1994) 15 ACSR 419
Williams v Hursey (1959) 103 CLR 30
Winch v The Birkenhead Lancashire and Cheshire Junction Railway Company (1852) 5 De G & Sm 562; 64 ER 1243

PARTIES:
(1) Darkinjung Pty Limited – Plaintiff
Darkinjung Local Aboriginal Land Council – First Defendant
Darkinjung Cattle Company Pty Limited – Second Defendant
Darkinjung Housing Pty Limited – Third Defendant
Darkinjung Funeral Fund Pty Limited – Fourth Defendant
NSW Aboriginal Land Council – Fifth Defendant
Darkinjung Projects Pty Limited – Sixth Defendant
(2) Peter Hillig in his capacity as Administrator of Darkinjung Local Aboriginal Land Council - Plaintiff
Darkinjung Pty Limited - First Defendant
Jeffrey John Bradford - Second Defendant
David Pross - Third Defendant
Greg Flanders – Fourth Defendant
George Alexander Watts – Fifth Defendant
Michael Stuart Jones – Sixth Defendant
(3) Darkinjung Local Aboriginal Land Council – Plaintiff
Anthony John Warner – First Defendant
Clifford John Sanderson – Second Defendant
Darkinjung Projects Pty Limited – Third Defendant
Darkinjung Funeral Fund Limited – Fourth Defendant
Darkinjung Housing Pty Limited – Fifth Defendant

FILE NUMBER(S): SC (1) 5634/05; (2) 2842/06; (3) 3528/06

COUNSEL:
(1) Mr S.D. Epstein SC/Mr D.A.C. Robertson – Plaintiff
Mr D.H. Murr SC/Mr D.A. Smallbone – First Defendant
Ms T.L. Jowett – Second Defendant
Mr G. Lucarelli – Third, Fourth and Sixth Defendants
Mr J.K. Kirk – Fifth Defendant
(2) Mr D.H. Murr SC/Mr D.A. Smallbone – Plaintiff
Mr S.D. Epstein SC/Mr D.A.C. Robertson – Defendants
(3) Mr D.H. Murr SC/Mr D.A. Smallbone – Plaintiff
Mr G. Lucarelli – Defendants

SOLICITORS: (1) Norton White Melbourne – Plaintiff
Patrick Woods & Company – First Defendant
Blackshield & Co - Second Defendant
Cutler Hughes & Harris – Third, Fourth and Sixth Defendants
Chalk & Fitzgerald – Fifth Defendant
(2) Patrick Woods & Company – Plaintiff
Norton White Melbourne – Defendants
(3) Patrick Woods & Company – Plaintiff
Cutler Hughes & Harris - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

TUESDAY, 3 OCTOBER 2006

5634/05 DARKINJUNG PTY LIMITED v DARKINJUNG LOCAL ABORIGINAL LAND COUNCIL & 5 ORS
2842/06 PETER HILLIG AS ADMINISTRATOR OF DARKINJUNG LOCAL ABORIGINAL LAND COUNCIL v DARKINJUNG PTY LIMITED & 5 ORS
3528/06 DARKINJUNG LOCAL ABORIGINAL LAND COUNCIL v WARNER & 4 ORS

JUDGMENT

Introduction

1 Darkinjung Local Aboriginal Land Council (“DLALC”) is the local Aboriginal land council constituted by s.50 of the Aboriginal Land Rights Act 1983 (“ALR Act”) for the area designated pursuant to s.49 as the Darkinjung local Aboriginal land council area. That area is situated on the Central Coast of the State. The administrative centre of DLALC has been at Wyong.

2 By virtue of s.50(2) of the Act, DLALC is a body corporate. By virtue of s.53, its members are the adult Aboriginal persons who are listed on the local Aboriginal land council membership roll for the Darkinjung local aboriginal land council area. In accordance with s.62, DLALC has a chairman, a secretary and a treasurer. Now, however, Mr Peter Hillig is the administrator of DLALC, having been appointed by the Minister for Aboriginal Affairs pursuant to s.222(1)(b) of the ALR Act on 2 May 2006 for a term of six months.

3 By virtue of s.222(4) of the ALR Act, Mr Hillig has, during his appointment as administrator:

“all, or such part as is specified in the administrator’s instrument of appointment, of the functions of the Council conferred or imposed by or under this Act, to the exclusion of the Council”.

4 The instrument appointing Mr Hillig says:

Aboriginal Land Rights Act 1983

Aboriginal Land Rights Regulation 2002

5 The instrument also says:

“The Administrator shall discharge all the functions and exercise all the powers of LALC as necessary in the best interests of the LALC and consistently within [sic] the provisions of the ALRA, the ALRR and relevant laws.”

6 In 2002, DLALC sold waterfront land at North Entrance to Mirvac Projects Pty Ltd (“Mirvac”). The sale yielded proceeds of just over $42 million which became payable by instalments. A large part of the instalments received by DLALC before Mr Hillig’s appointment – in fact, somewhat more than $25 million – was, in four separate payments, transferred by DLALC to Darkinjung Pty Limited (“DPL”), a company registered under the Corporations Act 2001 (Cth) which was at the time of each transfer of funds (and has remained) the trustee under a trust instrument dated 9 March 2004. The trust of which DPL is trustee was established at the instigation of DLALC. It is a trust created by settlement, the settlor being Mr Hanrahan of National Management Consultants (“NMC”), an adviser to DLALC, who paid ten dollars to DPL to be held upon the trusts stated in the trust instrument of 9 March 2004 to which he and DPL were parties. I shall refer to these trusts compendiously as “the Trust” and to the instrument of 9 March 2004 as “the Trust Deed”. That instrument was amended on 29 November 2005. I shall refer to the amended version as “the Amended Trust Deed”.

7 In purported execution of the Trust and in purported exercise of powers conferred by the Trust Deed, DPL expended parts of the moneys received from DLALC in funding a number of other companies which, like DPL itself, were registered under the Corporations Act. Those companies are Darkinjung Cattle Company Pty Limited (“CattleCo”), Darkinjung Housing Pty Limited (“HousingCo”), Darkinjung Funeral Fund Pty Limited (“FuneralCo”) and Darkinjung Projects Pty Limited (“ProjectCo”). The last three of these companies were referred to in the course of the hearing as “the Enterprise Companies”. I shall use the same terminology.

8 Each of the Enterprise Companies has DLALC as its sole shareholder. CattleCo, by contrast, is a joint venture company. The shares in it are held as to 75% by DPL and as to the remaining 25% by an unrelated entity engaged in primary production, Outback Beef Australia Pty Ltd (“Outback Beef”). Details of the several payments made by DPL to the Enterprise Companies and CattleCo in the period August 2004 to May 2005 will be mentioned presently.

9 CattleCo is engaged in the business of beef production. Its operations are centred on the Culcairn district in the south of the State. FuneralCo has obtained the official approvals needed to establish a contributory funeral fund. It is proposed that the fund provide money towards the cost of funerals of contributors and their family members. The funerals will be conducted by outside service providers. HousingCo is in the process of establishing a housing assistance scheme intended to provide rental housing on the basis that the tenant may in due course be given assistance by way of loan to purchase the property. The activities of ProjectCo did not emerge with any great clarity from the evidence. It appears to be merely a “banker”.

10 On or about 13 May 2006 the directors of each of the Enterprise Companies appointed administrators under Part 5.3A of the Corporations Act.

11 The actions of DLALC in applying its funds (being proceeds of the sale of the North Entrance land to Mirvac Projects) in the ways I have described, together with consequential matters involving the Enterprise Companies and CattleCo, became the subject of several proceedings in this court. The proceedings are:

(a) 5634/05 (commenced by summons filed on 28 October 2005) in which DPL, as plaintiff, seeks against DLALC, the Enterprise Companies, CattleCo and the New South Wales Aboriginal Land Council (“NSWALC”) declaratory relief as to the validity of payments made by DLALC to DPL (the claims were later reformulated and are now set out in a further amended summons filed on 27 July 2006 and amended points of claim filed on 11 May 2006);

(b) 2842/06 (commenced on 19 May 2006) in which Mr Hillig, as administrator of DLALC, the sole member of DPL, seeks, by reference to Corporations Act provisions concerning oppression, unfair prejudice and the like, winding up of DPL and either repeal of DPL’s constitution or its modification “by removal of provisions entrenching control of the incumbent directors”, together with declaratory relief to the effect that the trust of which DPL is supposedly the trustee is wholly or partially void and that the payments made by DLALC to DPL were void; and

(c) 3528/06 (commenced by originating process filed on 3 July 2006) in which DLALC seeks declarations to the effect that the appointment of administrators of each of ProjectCo, FuneralCo and HousingCo under Part 5.3A of the Corporations Act was invalid or, in the alternative, an order that the administration end.

12 Mr S.D. Epstein SC and Mr D.A.C. Robertson of counsel appeared for DPL. Mr D.H. Murr SC and Mr D.A. Smallbone of counsel appeared for Mr Hillig in his capacity as administrator of DLALC under the ALR Act. Mr J.K. Kirk of counsel appeared for NSWALC. Ms T.L. Jowett of counsel appeared for CattleCo in substantially the same interest as Mr Epstein and Mr Robertson, although, of course, with particular reference to sums paid by DPL to CattleCo. The Enterprise Companies and their administrators under the Corporations Act were represented by Mr G. Lucarelli of counsel who was excused at the start of the hearing.

The issues

13 There is a degree of overlap between the several proceedings. Taken as a whole, they raise a number of core issues concerning the Trust and the application of funds of DLALC. Those issues are, in summary, as follows:

1. Whether the Trust was wholly void from its inception.

2. Whether the Trust is, as to all or some of its provisions, a valid charitable trust.

3. Whether, in transferring money to DPL to be held upon the trusts of the Trust, DLALC acted within its authority and capacity.

4. Whether such of that money as is still held by DPL is held by it in trust for DLALC.

5. Whether the whole of the funds and assets of DPL is:

(a) held upon trust for DLALC; or

(b) charged with repayment to DLALC of all sums paid by DLALC to DPL.

6. Whether, in making payments to CattleCo, HousingCo, FuneralCo and ProjectCo, DPL acted within its powers as trustee of the Trust (assuming the Trust to be valid).

7. Whether such of the moneys paid by DPL to each of CattleCo, HousingCo, FuneralCo and ProjectCo as is still held by the recipient company is held by that recipient company on trust for DLALC.

14 There are also some discrete issues in the proceedings concerning the Corporations Act claims. These claims are brought by Mr Hillig, as administrator of DLALC, having regard to DLALC’s position as the sole member of each of DPL, FuneralCo, HousingCo and ProjectCo. He seeks in respect of DPL an order that it be wound up and an order appointing a liquidator. In relation to each of FuneralCo, HousingCo and ProjectCo, Mr Hillig attacks the appointment of voluntary administrators under Part 5.3A of the Corporations Act. In that respect, he advances two alternative propositions: first, that each appointment was invalid and of no effect because an essential statutory prerequisite was not satisfied; and, alternatively, that if any such appointment was validly made, the administration should be terminated by an order made by the court under the Corporations Act.

15 The desirable course is to defer consideration of the Corporations Act matters until completion of discussion and analysis of the claims concerning the Trust and the application of funds of DLALC to and through DPL in its ostensible capacity as trustee of the Trust.

The pleadings

16 Because evidence was led on a large number of matters, it is desirable to amplify upon the broad statement of issues set out at paragraph [13] above. Mr Epstein SC, who appeared with Mr Robertson for DPL, emphasised the need for continuing awareness of the pleaded issues.

17 The relief claimed by DPL in 5834/05 is declaratory only. It seeks declarations to the effect that money paid by DLALC to DPL was, upon receipt by DPL, held by it upon the trusts stated in the Trust Deed; that so much of that money as DPL still holds is held upon the trusts stated in the Trust Deed as subsequently amended on 29 November 2005; and that each part of the money subsequently paid by DPL to an Enterprise Company or CattleCo was “validly loaned pursuant to the Trust Deed”.

18 DPL’s amended points of claim refer to two sums paid by DLALC to DPL. There were, in fact, four transfers of funds and the proceedings were conducted on the basis that DPL’s first claim relates to the four relevant sums. The points of claim also refer to seven payments made by DPL out of the moneys it received from DLALC. The following table shows the sequence of the four payments by DLALC to DPL and the seven payments by DPL. The former are identified by asterisk:

*15 July 2004: $19,582,713.36 paid by DLALC to DPL.

8 August 2004: $300,000.00 paid by DPL to National Management Consultants Trust Account.

19 August 2004: $5,000,000.00 paid by DPL “pursuant to a loan agreement to the second defendant” (i.e, CattleCo).

*27 October 2004: $69,100.00 paid by DLALC to DPL.

18 May 2005: $3,318,950.81 paid by DPL to National Management Consultants Trust Account.

18 May 2005: $5,000,000.00 paid by DPL “pursuant to a loan agreement to Darkinjung Housing Pty Limited”.

18 May 2005: $1,500,000.00 paid by DPL “pursuant to a loan agreement to Darkinjung Funeral Fund Pty Limited”.

22 June 2005: $2,185,542.90 paid to National Management Consultants Trust Account “pursuant to a loan agreement to Darkinjung Projects Pty Limited on behalf of the first defendant [DLALC] for its future operation”.

*7 July 2005: $5,453,375.25 paid by DLALC to DPL.

*7 July 2005: a further $651,907.00 paid by DLALC to DPL.

23 August 2005: $500,000.00 paid by DPL “from the National Management Consultants Trust Account pursuant to a loan agreement to Darkinjung Projects Pty Limited”.

19 DPL says, in support of its application, that the payments by DLALC to DPL were “validly made under s.51 of the Act [i..e, the ALR Act] and one or more of either [sic] ss.52(1)(g)(ii), 52(1)(k) and 52(1)(m) of the Act”. CattleCo, as a defendant, contends in points of defence that the payment of $19,582,713.26 by DLALC to DPL on 15 July 2004 and the payment of $5,000,000.00 by DPL to CattleCo on 19 August 2004 were authorised pursuant to s.52(1)(g)(ii) of the ALR Act by a resolution passed at a meeting of DLALC on 13 April 2004.

20 DLALC and NSWALC say, in their respective points of defence, that the transfers of funds by DLALC to DPL were not authorised by the ALR Act; that no decision (or no sufficiently clear decision) was taken by DLALC to divest itself of legal and beneficial ownership of the moneys transferred by DLALC to DPL; that such, if any, decision as DLALC may have made was not made for a purpose authorised by the ALR Act or was made having regard to considerations (and so as to produce effects) inconsistent with the ALR Act and the Aboriginal Land Rights Regulation 2002 (which I shall refer to as the “ALR Regulation”).

21 The issue of the validity of the Trust (either in whole or in part) is raised by a cross-summons filed by DLALC in proceedings 5634/05 and by the originating process filed by DLALC in proceedings 2842/06. The principal matters pleaded in support of the proposition that the Trust is invalid are that it is, in terms, a trust for purposes rather than persons, that the purposes are not purposes that would benefit the public and are accordingly not charitable – or, alternatively, that only some of those purposes are properly regarded as charitable. It is also pleaded that, to the extent that the Trust Deed purports to allow DPL, as trustee, to exercise functions conferred by provisions of the ALR Act, its provisions are ineffective because such functions “cannot be exercised by a private trustee”, with the result that the trust is illegal and void.

22 The attacks upon the validity of actions of DLALC in transferring moneys to DPL and upon the validity of the Trust also play a large part in proceedings 2842/06 in which oppression, unfair prejudice and the like within DPL are alleged by Mr Hillig as administrator of DLALC, having regard to DLALC’s position as the sole member of DPL. As I have said, the desirable course is to defer consideration of the Corporations Act matters until conclusions on the central issues concerning transfers of funds and the Trust have been stated.

The ultra vires contentions

23 Mr Hillig, as administrator of DLALC, and NSWALC attack the transfers of funds by DLALC to DPL on three broad grounds, each of which comes under the general heading of “ultra vires”.

24 The first contention is that, having regard to the status of DLALC as a corporation created and governed by the ALR Act, it had no power, authority or capacity to make the four transfers of funds to DPL purportedly made by it.

25 The second contention is that, even if it is possible to identify a particular object, function or power of DLALC as sufficient, in terms, to enable it to transfer the funds, each transfer was inconsistent with the scheme of the ALR Act and must therefore be taken to have been unauthorised.

26 The third contention is that the transfers of funds were made for improper and impermissible purposes.

27 The fourth contention is that, even if DLALC had power to make the transfers of funds and the transfers were authorised by the ALR Act, there was never any decision by DLALC to make any of the transfers, with the result that no such transfer was a corporate act of DLALC.

28 The essential starting point in the consideration of these arguments is an examination of the provisions of the ALR Act and the ALR Regulations.

The Aboriginal Land Rights Act

29 The ALR Act contains a both a preamble and a statement of its purposes. The preamble is as follows:

“An Act to repeal the Aborigines Act 1969 and to make provisions with respect to the land rights of Aborigines, including provisions for or with respect to the constitution of Aboriginal Land Councils, the vesting of land in those Councils, the acquisition of land by or for those Councils and the allocations of funds to and by those Councils; to amend certain other Acts; and to make provisions for certain other purposes.

WHEREAS:

(1) Land in the State of New South Wales was traditionally owned and occupied by Aborigines:

(2) Land is of spiritual, social, cultural and economic importance to Aborigines:

(3) It is fitting to acknowledge the importance which land has for Aborigines and the need of Aborigines for land:

(4) It is accepted that as a result of past Government decisions the amount of land set aside for Aborigines has been progressively reduced without compensation:

30 The statement of the Act’s purposes appears in s.3:

31 The preamble and the statement of purposes in s.3 will become relevant, both under s.33 of the Interpretation Act 1987 (which requires that preference be given to a construction that promotes the purpose or object of a statute) and according to accepted canons of construction, should doubt or ambiguity be encountered in interpreting the Act.

32 Provision is made by the ALR Act for the creation of Aboriginal land councils at three levels. First, there are local Aboriginal land councils such as DLALC. Representatives of councils of this kind within a particular region then constitute a regional Aboriginal land council. Representatives of the several regional councils form the membership of the New South Wales Aboriginal Land Council.

33 A local Aboriginal land council has as its members, by virtue of s.53, the adult Aboriginal persons who are listed on the local Aboriginal land council roll for the particular local Aboriginal land council area – here, the Darkinjung area. Detailed provision is made in s.54 and related sections for the keeping of such rolls and the listing of persons’ names and addresses on it. Provision is also made for the appointment of a chairperson, a secretary and a treasurer of a local Aboriginal land council. Particular tasks and responsibilities are assigned by the Act to the individual holders of these offices, but they do not constitute a board or governing body.

34 The objects and functions of a local Aboriginal land council are those stated in, respectively, s.51 and s.52 of the ALR Act. A council is empowered by s.82 to delegate to any person or body any of its functions other than a function that that section makes non-delegable. The power of delegation may be exercised, conformably with s.82, only by resolution of the council, being, obviously enough, a resolution passed at a meeting of the council convened and held in accordance with the provisions of the Act.

35 This brings to the fore an important aspect of the statutory scheme. Unless a particular matter is either placed by the Act within the province of one of the three officers or delegated in accordance with s.82, that matter may only be dealt with by the council itself at a meeting. The central role played by such meetings in the affairs of a local Aboriginal land council is emphasised by s.73 which requires that an ordinary meeting of the council be held at least once in every three months and that annual meetings also be held.

36 Section 51 is as follows:

“ Objects of Local Aboriginal Land Councils
(cf clause 5 of Schedule 1 to 1996 Regulation)

37 Section 52 is in these terms:

“ Functions of Local Aboriginal Land Councils
(cf former section 12)

Note. Section 50 of the Interpretation Act 1987 provides for the powers of a statutory corporation.

38 This conferral of “functions” must be read in the light of s.4(2) of the ALR Act:

39 All but six of the functions specified in s.52 are expressly concerned with land. The exceptions are the functions referred to in paragraphs (f), (g)(ii), (j), (m), (n) and (o) of s.51(1). Paragraphs (n) and (o) are not concerned with particular functions and may be left to one side for present purposes. Paragraph (j), although not referring expressly to land, is obviously concerned with premises upon or forming part of land. Paragraph (f) is concerned with finding a necessary aspect of the attainment of the specified objects within the context created by the Act. Paragraph (m) refers to matters which are likely to have a connection with land, given the significance of land to Aborigines in the way stated in clauses (2) and (3) of the preamble to the Act.

40 The only provision of s.51(1) which, when read in isolation, may be regarded as not concerned with land is paragraph (g)(ii) – assuming that paragraph (g)(ii) is properly seen as referring to a function separate from that specified in paragraph (g)(i). Paragraph (g) as a whole refers to a function of implementing the wishes of the council’s members (as decided at a meeting of the council) with respect to the matter specified in subparagraph (i) “and” the matter specified in subparagraph (ii). It is possible that any particular expression of wishes must relate to both matters. On balance, however, I am satisfied that any such interpretation represents a straining of the statutory language. If the two subparagraphs were linked in that way, an enterprise of the kind referred to in subparagraph (ii) could be established only as part of an event or series of events involving the acquisition, management, use, control or disposal of land as referred to in subparagraph (i). The two subparagraphs of the equivalent provision in the ALR Act as it stood before extensive amendments of 2001 (s.12(d)) were assumed by Gaudron, Gummow and Kirby JJ in Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Ltd (1998) 194 CLR 247 at p.252 to refer to and confer separate functions, each of which took its content from an expression of members’ wishes.

41 A significant feature of paragraph (g) is that it is the only paragraph which causes a function to be defined by means of an expression of members’ wishes as decided at a meeting of the council. The paragraph contemplates, in essence, a three-step process: first, the members formulate and express wishes with respect to a matter within subparagraph (i) or (ii); second, implementation of the wishes thus formulated and expressed assumes, by virtue of s.52(1)(g), the status of a function of the council; and, third, the council, by decisions of the members, performs that function.

42 I refer next to a number of provisions of the ALR Act conferring powers on a local Aboriginal land council:

1. Section 36(3) empowers a local Aboriginal land council to make a claim for land within its area.

2. Section 38(1) empowers such a council to purchase, take on lease or hold property and to acquire property by gift, devise or bequest; but

(a) land may be purchased only if conditions in s.38(1A) are met; and

(b) under s.38(4) property other than land may be purchased or taken on lease only in connection with the use, development or improvement of land, although this restriction is expressed not to limit the council’s function under any other provision of the Act.

3. Under s.40 and subsequent sections, a council has power to dispose of land (by sale, exchange, lease, mortgage or otherwise), subject to stated restrictions and controls.

5. Under s.47, a council may, subject to other legislation, negotiate agreements with owners or occupiers of land to permit particular Aborigines or groups of Aborigines to have access to land for the purpose of hunting, fishing or gathering on the land.

6. Section 78 empowers a council to employ staff and engage consultants as necessary to enable the council to exercise its functions. Sections 80 and 81 require appointment and engagement on merit.

43 It is common ground that DLALC is a “statutory corporation” within the meaning of the Interpretation Act 1987 and that s.50(1) of that Act is therefore relevant:

44 Section 50(4) provides:

“This section applies to a statutory corporation in addition to, and without limiting the effect of, any provision of the Act by or under which the corporation is constituted.”

45 The statutory structure is thus such that the objects of a local Aboriginal land council are those described in s.51 of the ALR Act; that the functions described in s.52 are to be performed by the local Aboriginal land council; and that powers gathered from a number of provisions of the Act (and from the Interpretation Act) are made available to the council. The ALR Act also imposes duties and responsibilities upon a local Aboriginal land council. Provisions not so far mentioned create a system of public oversight, supervision and accountability within which a council must operate.

46 The ALR Act imposes financial controls. Division 2 of Part 8 of the ALR Act requires books of account to be kept and financial statements to be prepared and audited. Budgets must be prepared. Reports must be made periodically to the New South Wales Aboriginal Land Council. Section 152 deals with bank accounts of a local Aboriginal land council and payments into and out of such accounts:

“ Local Aboriginal Land Council Accounts
(cf former section 31)

(1) Each Local Aboriginal Land Council is to establish in an authorised deposit-taking institution an account (the Local Aboriginal Land Council’s Account ).

47 Section 153 deals with accounting records and financial statements:

“ Local and Regional Aboriginal Land Councils to keep accounts
(cf former section 32)

(1) Each Local Aboriginal Land Council and each Regional Aboriginal Land Council must cause proper accounts and records to be kept in relation to all its operations.

(2) Each such Council must prepare financial statements for each financial year of the Council in accordance with section 41B(1) of the Public Finance and Audit Act 1983.

(3) The financial statements must be submitted for verification and certification to an auditor appointed by the New South Wales Aboriginal Land Council in the manner prescribed by the regulations.

(4) The financial statements must be prepared and submitted to the auditor not later than 10 weeks after the end of the financial year to which they relate.

(5) Each such Council must furnish to the New South Wales Aboriginal Land Council the audited financial statements and such other documents as are prescribed by the regulations, not later than 4 months after the end of each financial year.

48 The matter of budgets is dealt with in s.158. A local Aboriginal land council which receives funds from NSWALC must, under s.159, report to NSWALC regarding expenditure of those funds.

49 I pass now to another important aspect of the ALR Act, namely, what might be termed official oversight and public accountability. Part 10 of the ALR Act is headed “Honesty and disclosure of interests”. Part 10 lays down probity standards, requires the adoption of codes of conduct and imposes duties of disclosure. It establishes and regulates the Aboriginal Land Councils Pecuniary Interest Tribunal. Under Part 10, the Registrar appointed under the Act is given certain functions regarding complaints of failure to disclose a pecuniary interest. The Registrar may refer a complaint to the Aboriginal Land Councils Pecuniary Interest Tribunal. There is a right of appeal to this court from a decision of the Tribunal.

50 Part 11 is concerned with investigation of the affairs of the Aboriginal land councils. The Minister may appoint an investigator to investigate the affairs of a council. The Minister also has power to appoint an administrator of a land council. The powers of investigators and administrators are comprehensively dealt with in Part 11.

51 Under Part 12 of the Act, the Registrar may direct an Aboriginal land council (or an officer or councillor) to comply with a provision of the ALR Act or the ALR Regulation. Any failure to comply may be referred by the Registrar to the Land and Environment Court.

The Trust

52 As I have said, the Trust was created by an instrument dated 9 March 2004 and settlement of ten dollars by Mr Hanrahan upon DPL as trustee. The Trust Deed was amended in November 2005 but, since all transfers of funds by DLALC to DPL took place before the amendment, it is necessary to have regard to the March 2004 version only.

53 The Trust Deed is concerned with the “Trust Fund”, that is, the initially settled ten dollars and “all other money and property which is received by the Trustee for the purposes of inclusion in the Trust Fund or which otherwise may form part of the Trust Fund in accordance with this Deed”. By clause 2(b), DPL declared that “it holds and will hold the Trust Fund on the terms and conditions of this deed. Clause 3.1 is as follows:

“ Purpose

The purpose for which the Trust is established is to improve, protect and foster the best interests of Aboriginal persons within the Relevant Area and other persons who are members of the Council by doing any act that the Council had the power to do as at the Commencement Date, or has the power to do from time to time (and at the relevant time), which as at the Commencement Date includes, without limitation:

(a) relieving poverty of Aboriginal persons in the Relevant Area;

(b) improving the health of the Aboriginal persons in the Relevant Area;

(c) educating and training the Aboriginal persons in the Relevant Area;

(d) addressing the welfare of the Aboriginal persons in the Relevant Area;

(e) acquiring, constructing, upgrading or extending residential accommodation for Aboriginal persons who are in necessitous circumstances in the Relevant Area;

(f) protecting the interests of Aboriginal persons in the Relevant Area in relation to the acquisition, management, use, control and disposal of the Council’s land;

(g) promoting the protection of Aboriginal culture and the heritage of Aboriginal persons in the Relevant Area; and

(h) acquiring, establishing and operating enterprises for the benefit of the community to the extent that the acquisition, establishment and operation of such enterprises is not inconsistent with paragraphs (a) to (g).”

54 The purpose thus described in clause 3.1 is designated the “Sole Purpose”. The modes of application of income and capital are set out in clauses 4 and 5:

“ 4. INCOME

4.1 Distribution

(a) The Trustee must hold the Income of each Financial Year which is available for distribution on trust to pay or apply or set aside the whole or part thereof for the Sole Purpose in such shares and in such manner as the Trustee may determine in its discretion.

(b) In exercising its discretion under paragraph (a), the Trustee must have regard to (but is under no obligation to follow) any recommendation put to it by the Council.

4.2 Accumulation

The trustee may, having regard to the Sole Purpose, in its discretion, decide to accumulate the whole or part of the Income of a Financial Year. Such accumulation forms part of the Capital.

5. CAPITAL

5.1 Distribution of Capital

Until the Trust is wound up, the Trustee holds the capital of the Trust to be used for the Sole Purpose.

5.2 Manner of Distribution

Capital may be distributed as determined by the Trustee or on winding up of the Trust:

(a) in any manner consistent with the Sole Purpose in which Income may be paid, applied or set aside under this deed; or

(b) by transfer or distribution in specie of any asset in the Trust Fund for the Sole Purpose.

5.3 No resulting trust

A determination of the Trustee under this clause 5 is not effective to the extent the determination:

(a) creates a resulting trust in favour of:

(i) the Settlor;

(ii) a person who has transferred property to the Trustee for other than full consideration;

(iii) a person who has made a gift of money to the Trustee by way of accretion to the Trust fund; or

(b) creates a resulting trust which would result in a liability arising at any time under any applicable law on account of death or estate duties or an imposition or tax arising by reference to the death of a person.”

55 The references in clauses 3.1 and 4.1(b) to the “Council” are a reference to DLALC. The references to the “Relevant Area” is a reference to the area designated pursuant to s.49 of the ALR Act as the Darkinjung local Aboriginal land council area. Other references in the Trust Deed to the “Council” are as follows:

1. Clause 3.2 precludes transfer of property or income of the Trust to members of the Council (but with an exception for remuneration paid in good faith to a trustee or a director of a corporate trustee).

2. Under clause 7, variation of the Trust Deed is not effective unless approved in a certain way by the Council.

3. By clause 8.3(b), the power to appoint a new trustee in consequence of removal is vested in the Council.

4. Clause 8.3(c) says that any new trustee must be a company having certain attributes, including that three directors must be members of the Council or Aboriginal persons living in the Relevant Area.

5. The power of removing a trustee is, by clause 8.6, vested in the Council but requires the adoption of a particular procedure within the Council.

“The Trustee may be paid remuneration greater than as provided in paragraph (b) by a resolution of the Trustee, provided that if at the time of such resolution the Council holds any shares in the Trustee, the Trustee must also have first procured a resolution approving such remuneration to have been passed at an extraordinary meeting (as that term is used in the Aboriginal Land Rights Act) of the Council (at which a quorum is present) by a majority of 80% of the members present and voting at the meeting.”

7. The catalogue of powers of the Trustee in clause 13 concludes with a proviso that:

“notwithstanding any other provision of this deed, the Trustee may not do any act which the Council could not have done as at the Commencement Date.”

56 The Trust Deed defines “Financial Year” as a year ending on 30 June. “Income” is defined in a way that pays attention to certain provisions of income tax legislation. Clause 11 of the Trust Deed requires the Trustee to prepare financial statements for each Financial Year, including “a profit and loss account as at the end of each Financial Year” setting out “all … Income”.

57 It is clear that the Trust is wholly a purpose trust, in that the trust property is directed to be held for the purpose or object specified in clause 3.1. No person is a beneficiary. In particular, while DLALC is, by the Trust Deed, given certain functions, it is not a beneficiary. Nor can DLALC determine, compel or control particular applications of trust property by the Trustee or other actions of the Trustee. The most DLALC can do is to make recommendations as to the application of income, which recommendations the Trustee is not obliged to follow, although it must “have regard to” them.

The constitution of DPL

58 DPL is a proprietary company registered as such under the Corporations Act. DLALC is and has always been the sole member of DPL.

59 In its present form, the constitution of DPL contains some unusual provisions calculated to make certain actions and decisions within or in relation to DPL ineffective unless approved or confirm in a certain way by members of DLALC. I set out in full the provisions in question:

If the company has only one member, the company may pass a resolution by the member recording it and signing the record. That record is to be taken as a minute of the passing of that resolution.

The company may by resolution amend this constitution, If at the time of such resolution the Council holds any shares, the resolution of the company is conditional on the Council passing a resolution (prior) to the resolution of the company or within one months after the passing of a resolution by the company) in materially similar terms as the resolution passed by the company by a majority of 66% of the members present and voting at such meeting.”

60 These provisions are of particular relevance to the claim for a winding up order in respect of DPL made by Mr Hillig for DLALC. Aspects of their operation – in particular, the effectiveness of the proviso to clause 14.4 as a “further requirement” in terms of s.136 of the Corporations Act – were discussed by Austin J at an earlier stage of proceedings 2842/06: see Hillig v Darkinjung Pty Ltd (2006) 57 ACSR 733.

Decisions of DLALC

61 It is necessary to refer next to certain decisions made by DLALC. Evidence was given by a number of witnesses about the reasons for the decisions and the circumstances in which they were made. I do not need, at this point, to go into those matters. But it is appropriate to refer to some matters of context and background that are uncontroversial.

62 The contract under which Mirvac eventually purchased the North Entrance land was made on 24 September 2002. An option to purchase was granted at that point and an option fee was paid. At a meeting of DLALC on 12 October 2002, the members decided to explore the options available regarding the establishment of a trust to hold various assets of DLALC. A working group (which evolved into the “Trust Committee”) was formed to consult with Mr Hanrahan, an adviser to DLALC, and Gilbert+Tobin, solicitors. A meeting of DLALC on 17 December 2002 received a recommendation for the establishment of a trust.

63 Throughout most of 2003, steps were taken to develop the trust proposal. The Trust Committee received a final draft of the trust deed and the constitution of the trustee company in November 2003. These were approved in principle at a meeting of DLALC on 11 November 2003. Final approval was given at a meeting of DLALC on 17 January 2004. The minutes of the latter meeting record the following:

“ Agenda Item 1. Trust Deed Document

Tony Hanrahan presented the Document by way of hand outs. General discussion took place.

Motion that the members propose the five (5) Directors by [sic] composed of two persons who are not members of the council, but must have outstanding business experience and the Chairperson of DLALC and two (2) members of DLALC.
Moved V Graf, Seconded by C Hammond, 1 abstain A Van den Berg, carried.
Motion to accept the Trust Deed as presented with the Amendment
Moved A Van den Berg, Seconded by R Sutherland, carried”

64 And later:

“ Agenda Item 2. Trust Constitution

Tony presented the Constitution. General discussion took place regarding 2 Meeting Procedures – general consensus to agree to two meetings 6 (6.1).

Motion that the members resolve to remove 6.15 Clause (c) from the Constitution
Moved R Sutherland, Seconded by J McEwen, carried

Motion to accept the name of Darkinjung Limited as the Company name
Moved V Graf, Seconded by R Sutherland, carried
Motion to accept the Trust Constitution as presented with Amendments
Moved J Smith, Seconded by B Bunting, carried

65 At a meeting of DLALC on 9 March 2004, certain decisions were made about the composition of the board of the trustee company. Under the heading “Treasurer’s Report”, the minutes of the meeting record the following:

Motion to pay NMC and Gilbert and Tobin the outstanding amounts owed
Moved D Pross, Seconded by V Graf, carried
Motion to issue the deposit of $500,000.00 into the DLALC Main Account
Moved D Pross, Seconded by V Graf carried
Motion for the second amount of monies from Mirvac be paid into the Trust Account
Moved D Pross, Seconded by P Peterson, carried”

66 A meeting of DLALC held on 13 April 2004 was informed that DPL (which had been incorporated on 2 March 2004) had become trustee of the new trust, that meetings of the board of directors had taken place and that the trust had under consideration a joint venture with Outback Beef, something that had been discussed at earlier DLALC meetings.

67 The minutes of a meeting of DLALC held on 14 December 2004 record several relevant matters:

Resolution the members resolve that they wish the council to do what is necessary to acquire, establish and operate an enterprise that can provide funeral fund services to DLALC members and their immediate families who live in the DLALC area
Moved Jenny Hayes, Seconded by Wayne Cook, carried”

Resolution 1 A Company called ‘Darkinjung Housing Company Pty Ltd’ is established to cater for DLALC sustainable housing
Moved Veronica Graf, Seconded by Robyn Sutherland, carried”

Resolution 2 Funds from the second payment from Mirvac (to be determined) due in the first half of 2005 be applied to the DLALC sustainable housing project and the funeral fund,

Moved Veronica Graf, Seconded by Robyn Sutherland carried”

Ultra vires – general principle

68 Mr Hillig (on behalf of DLALC) and NSWALC contend that the four transfers of funds by DLALC to DPL were inconsistent with what are sometimes termed principles of “narrow ultra vires”. They argue that the transfers were beyond the statutorily authorised scope of activities of DLALC. That contention raises a number of issues about the authority and powers of statutory corporations.

69 As Bowen LJ explained in Baroness Wenlock v The River Dee Company (1883) 36 ChD 674n (at p.685), a corporation created by Royal Charter was, at least from the time of the Case of Suttons Hospital (1612) 10 Co Rep 23a (at p.30b); 77 ER 960 (at p.970), regarded by the common law as clothed with all the powers of a natural person or, at least, so many of them as a corporation is, of its nature, capable of exercising. Corporations created by statue, his Lordship observed, stood in a different light:

“When you come to corporations created by statute, the question seems to me entirely different, and I do not think it is quite satisfactory to say that you must take the statute as if it had created a corporation at common law, and then see whether it took away any of the incidents of a corporation at common law, because that begs the question, and it not only begs the question, but it states what is an untruth, namely, that the statute does create a corporation at common law. It does nothing of the sort. It creates a statutory corporation, which may or may not be meant to possess all or more or less of the qualities with which a corporation at common law is endowed. Therefore, to say that you must assume that it has got everything which it would have at common law unless the statute takes it away is, I think, to travel on a wrong line of thought. What you have to do is to find out what this statutory creature is and what it is meant to do; and to find out what this statutory creature is you must look at the statute only, because there, and there alone, is found the definition of this new creature. It is no use to consider the question of whether you are going to classify it under the head of common law corporations. Looking at this statutory creature one has to find out what are its powers, what is its vitality, what it can do. It is made up of persons who can act within certain limits, but in order to ascertain what are the limits, we must look to the statute. The corporation cannot go beyond the statute, for the best of all reasons, that it is a simple statutory creature, and if you look at the case in that way you will see that the legal consequences are exactly the same as if you treat it as having certain powers given to it by statute, and being prohibited from using certain other powers which it otherwise might have had.”

70 This approach was endorsed when the case went to the House of Lords: Baroness Wenlock v The River Dee Company (1885) 10 App Cas 354. The principle that corporations created by or pursuant to statute possess only the powers expressed or implied in the constating instruments had already been recognised by the House of Lords in relation to both commercial corporations incorporated and enabled directly by statute (Attorney-General v Great Eastern Railway Company (1880) 5 App Cas 473) and companies incorporated by registration under the Companies Act 1862 (Eng) (Ashbury Carriage & Iron Company (Limited) v Riche (1875) LR 7 HL 653).

71 In modern times, the same principle has been applied by courts of the highest authority to a corporation created by statute for public purposes (Kathleen Investments (Australia) Ltd v Australian Atomic Energy Authority (1977) 139 CLR 117), a corporation brought into existence for private purposes by virtue of strata titles legislation (Humphries v Proprietors Surfers Palms North Group Titles Plan 1955 (1994) 179 CLR 597), a corporation which, although created by Royal Charter, resulted from an exercise of the prerogative in accordance with statute for public purposes (Hazell v Hammersmith & Fulham London Borough Council [1992] 2 AC 1) and a statutory body formed under trade union legislation (Williams v Hursey (1959) 103 CLR 30). The applicability of the principles to a local Aboriginal land council such as DLALC was recognised by Campbell J in Sanpine v Koompahtoo Local Aboriginal Land Council [2005] NSWSC 365.

72 In all cases where a corporation owes its existence to a statute, it is open to the corporation to do only those things that the statute contemplates are to be done by it. It is commonplace for a founding and enabling statute to contain express statements with respect to the purposes, objects, functions, powers and duties of the corporation. Those express statements, together with the necessary implications to which they give rise, are the source of the corporation’s authority and capacity and the limits upon them. Where the corporation purports to act beyond the field of its authority and capacity thus defined, its acts are void.

Ultra vires – functions, objects and powers - discussion

73 In contending that the several transfers of funds by DLALC to DPL were beyond power, Mr Hillig and NSWALC rely on the decision of McLelland CJ in Eq in Aboriginal Community Benefit Fund Pty Ltd v Batemans Bay Local Aboriginal Land Council (1997) 42 NSWLR 593. That case involved the powers of NSWALC under the ALR Act as it existed in May 1996. At issue was the question whether NSWALC had power to indemnify a local Aboriginal land council against liabilities arising out of the operation of an “enterprise” by that council. His Honour held that there was no power. This was because the giving of such an indemnity did not fall within any of the functions conferred on NSWALC by the Act as it then stood. The essence of the decision in this respect appears from the following passage (at p.598):

“In my opinion the New South Wales Aboriginal Land Council does not have the legal capacity to give such an indemnity. To indemnify a Local Aboriginal Land Council against liabilities arising out of the operation by that council of an ‘enterprise’ under s 12(d)(ii) of the 1983 Act (as the ALC scheme must for
this purpose be considered) does not fall within any of the functions described in s 23(1)(f) and s 23(1)(h) of the 1983 Act, nor is it ‘necessary for, or incidental to, the exercise of’ any such function: see Interpretation Act 1987, s 50(1)(e).

Re Honey Pool of Western Australia [No 2]

74 McLelland CJ in Eq here expressed a conclusion corresponding with his observation by way of obiter dictum at an earlier stage of the same proceedings (see Aboriginal Community Benefit Fund Pty Ltd v Batemans Bay Local Aboriginal Land Council (1996) 22 ACSR 56 at pp.63-64):

Aboriginal Land Rights Act

Funeral Funds Act

75 According to this approach, as applied to the present case, it is the statement of functions in s.52 of the ALR Act in its present form that delimits the capacity and authority of a local Aboriginal land council such as DLALC.

76 It was submitted on behalf of DPL that any such approach is not consistent with the ALR Act as it now stands. The legislation considered by McLelland CJ in Eq stated the functions of NSWALC and the functions of a local Aboriginal land council. Provisions conferring certain specific powers of an incidental kind supplemented the provisions stating functions. Subject to that supplementation, the statement of functions alone indicated the permitted sphere of activity of relevant land councils. But in Mr Epstein’s submission, there was a radical change in the statutory scheme governing local Aboriginal land councils when the Aboriginal Land Rights Amendment Act 2001 caused the principal Act to contain, in addition to a statement of functions, a statement of the objects of each such land council. The statement of objects was contained in the new s.51 added by the Act of 2001 (see paragraph [36] above). Section 51 put into statutory form a provision with respect to objects which had previously formed part of the model rules which the ALR Regulation caused to be applicable to any local Aboriginal land council which did not adopt rules of its own in conformity with the optional procedures in the Act.

77 The submission made on behalf of DPL is that inclusion in the Act of a statement of the objects of a local Aboriginal land council had a significant effect on the legal capacity and authority of every local Aboriginal land council in existence at the time of the enactment of s.51. It is said that principles of ultra vires applicable to corporations have always paid attention to a corporation’s objects rather than its functions. The decision of McLelland CJ in Eq fixed upon the statutory statement of functions as a determinant of legal capacity merely because there was no statement of objects and the statute provided no other means for ascertaining the scope of the authorised activities. The addition in 2001 of a statement of objects means that it is no longer necessary or appropriate to regard the statement of functions as playing the role in which it was cast by McLelland CJ in Eq. According to this submission, the stage is now occupied by the statement of objects alone.

78 As Mr Epstein observed, the word “objects” has particular currency in this area of the law because ss.8, 9 and 10 of the Companies Act 1862 (Eng) (adopting the approach first taken in the Joint Stock Companies Act 1856 (Eng)) required the memorandum of association of a company created by registration under that Act to contain a statement of “the objects for which the proposed company is to be established” – a requirement which, in Australia, continued until omitted from the Companies Act 1981 (Cth) and corresponding State and Territory Codes by s.33 of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1983 (Cth). That requirement, it is said, was really a reflection of approaches already well established by 1862 which involved delineation of the legal capacity of statutory corporations by reference to their objects.

79 In the Ashbury case (above), in which the House of Lords applied principles of ultra vires to corporations created by registration under the Companies Act 1862 (Eng), Lord Selborne said (at p.693) that “a statutory corporation, created by an Act of Parliament for a particular purpose, is limited, as to all its powers, by the purposes of its incorporation as defined in that Act”. This is a reflection of the principle that had been applied to statutory corporations created before the advent of general companies legislation. Thus, in Bagshaw v The Eastern Union Railway Company (1850) 2 Mac & G 389; 42 ER 151, Lord Cottenham LC said that persons “who subscribed for the purposes specified by the Acts have a right to have their money applied to such purposes” and that the court would intervene to keep the company, “in the application of its money, to those purposes for which it was said it was to be advanced”.

80 In Lyde v Eastern Bengal Railway Company (1866) 36 Beav 10; 55 ER 1059, the Master of the Rolls, Lord Romilly, entertained an application for an injunction to restrain the application of company funds “in obtaining powers from Parliament foreign to the objects and purposes of the company as originally established”. His Lordship described it as “quite settled now” that “a company established for one purpose cannot, against the will of a dissentient minority, however small, undertake a business foreign to the objects of the original company”.

81 To like effect was the observation of Lord Cranworth LC, in Eastern Counties Railway Co v Hawkes (1855) 5 HL Cas 331; 10 ER 928:

“It must, therefore, be now considered as a well settled doctrine that a company incorporated by Act of Parliament for a special purpose cannot devote any part of its funds to objects unauthorised by the terms of its incorporation, however desirable such an application may appear to be.”

82 This observation followed a reference to the decision of the Exchequer Chamber in MacGregor v The Official Manager of the Deal & Dover Railway Company (1852) 22 LJQB 69 where it was observed by

Alderson B that it had been laid down by the Court of Common Pleas in East Anglian Railways Co v Eastern Counties Railway Co (1951) 11 CB 775; 138 ER 680 that “a railway company incorporated by act of parliament is bound to apply all the funds of the company for the purposes directed and provided for by that act, and for no other purpose whatsoever”.

83 Reference was also made in submissions to Salomons v Laing (1850) 12 Beav 339; 50 ER 1091 which concerned an application to restrain a railway company’s acquisition of shares in another railway company. Lord Langdale MR said:

“A railway company, incorporated by an Act of Parliament, is bound to apply all the monies and property of the company for the purpose directed and provided for by the Act and for no other purpose whatever …

Any application of or dealing with the capital, or any part of the capital, or any funds or money of the company, which comes under the control or management of the directors or governing body of the company, in any manner not distinctly authorised by the Act, is, in my opinion, an illegal application or dealing … I am of opinion, that if, as in this case, the directors are proceeding upon an illegal principle, and for purposes not authorised by the Act, to involve the company or the shareholders of the company, or any of them, in liabilities to which the shareholders or any shareholder never consented, relief may and ought to be given in this court.”

84 The idea that it was “illegal” for a corporation created by statute to act beyond the purposes for which it was created was disapproved by the House of Lords in the Ashbury case (above). In earlier years, there had been something of a conflict between what might today be termed a public law view and a private law view of ultra vires. Founding statutes often defined purposes, objects and powers by statements of what was to be “lawful” and what was not to be “lawful”. Thus, in The National Bank of Australasia v Cherry (1870) LR 3 PC 299, the Privy Council was called upon to consider an Act of the legislature of South Australia which incorporated “the South Australian Branch of the National Bank of Australasia” and authorised it to carry on the ordinary business of bankers. The statute then set out a number of things concerning advances and property which “it shall be lawful for the Corporation to do”, with a concluding proviso:

“Provided always, that save and except as hereinbefore specially authorised, it shall not be lawful for the said Corporation to advance or lend any money on the security of lands or houses or ships, or on pledges of merchandise, nor to own ships.”

85 The Privy Council held (at p.307) that, although “there are considerations of public policy involved in this clause”, those considerations “look to and deal with the management of the Bank, and have for their object the limitation of the powers and authority of the Bank”, the “object of the Legislature” in enacting the proviso being “to make it something ultra vires the Bank to take, upon the occasion of contracts for those advances, securities of the kind mentioned in this section”.

86 The distinction between illegality and ultra vires was later succinctly stated by Buckley LJ in Re Birbank Permanent Building Society [1912] 2 Ch 183 at p.232:

“A transaction which is illegal is forbidden by law. A transaction which is ultra vires is precluded by the incompetence of the actor. The act may be a perfectly legal act, but is one which that person cannot do”

87 The fact that the competence (and therefore incompetence) of the actor derives from statute does not mean that law forbids things beyond the sphere of competence. The competence is the competence of the particular person. Illegality affects all persons. The distinction was recognised in the joint judgment of Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ in Northern Territory v Mengel (1995) 185 CLR 307 at p.336 where, in considering the expression “unlawful act” as used in Beaudesert Shire Council v Smith (1966) 120 CLR 145, their Honours considered it pertinent to ask whether it referred to “an act forbidden by law or, simply, an unauthorised act in the sense of an act that is ultra vires and void”.

88 Mr Epstein placed emphasis upon the importance the case law accords to “objects” – as well as “purposes” which, I accept, may be taken to be a synonym of “objects”. Looking at the cases over the quarter century to 1875, we find references to “the purposes specified by the Acts” (Bagshaw, 1850), “the purpose directed and provided for by the Act and for no other purpose whatsoever” (Salomons v Laing, 1850; East Anglian Railways Co, 1851), “objects unauthorised by the terms of its incorporation” (Eastern Counties Railway Co, 1855), “foreign to the objects of the original company” (Lyde, 1866) and “the purpose of its incorporation as defined in that Act” (Ashbury, 1875). It follows, in Mr Epstein’s submission, that, if the incorporating Act contains an express statement of the corporation’s objects, it is that statement alone that delineates the permitted field of activity.

89 Any such approach is too narrow. The inquiry is not confined to the corporation’s objects. The real message from the cases about corporations created and empowered by statute is that the permitted field of activity and the corporation’s capacity are to be discovered from the statute as a whole.

90 The statute considered by the High Court in Kathleen Investments (Australia) Ltd v Australian Atomic Energy Authority (above) created a body corporate which it declared capable of acquiring, holding and disposing of real and personal property and of suing and being sued in its corporate name (s.8(2)). Section 18 conferred particular powers, as well as “power to do all things that are necessary or convenient to be done for or in connection with the performance of its functions”. Section 17(1) of the Act began, “Subject to this Act, the functions of the Commission are …”. Section 17(4) was in these terms:

261 All the evidence on the matter points clearly to the conclusion that the DPL directors agreed to a course of action involving the making of demand for repayment of the loan principal by each Enterprise Company when each director either knew that there was no foundation in the loan agreement for such action or did not turn his mind to the matter. The predominating purpose was one of repatriating funds to DCL, without regard for the validity of the asserted basis for doing so.

FuneralCo

262 I next consider events within FuneralCo following receipt of Mr Pross’s letter of 12 May 2006. The directors of FuneralCo were Ms Hammond, Ms Sinclair, Ms O’Brien and Mr Cook. They met the next day, 13 May 2006. All were present. Ms Hammond, a director, gives the following account in her affidavit:

“Jeffrey Bradford was invited to attend the initial stages of the meeting for the purpose of informing the directors of the background to the recall of the loan. He did attend, and said words to the effect: ‘The DLALC Administrator has directed that all expenditure by subsidiary companies (including Funerals) is to cease unless he gives prior approval. Moreover, the Administrator apparently intends to take control of the companies and their funds. In those circumstances DPL, as trustee of the funds which have been loaned to Funerals, needs to protect the trust assets against the possibility that they could be lost to the trust, whether by being appropriated by the Administrator or by being wasted through an entity which could no longer operate either at all or in the manner envisaged as the basis for the loan having been made. Therefore DPL has decided it should recall the loans.’”

263 Mr Bradford accepted in cross-examination that this is a fair account of what he said. Ms Hammond’s affidavit has annexed to it two sets of minutes of the meeting of FuneralCo’s directors. One set appears to be a pro forma prepared in advance in which the date and place of the meeting have been inserted in handwriting. This set contains formal resolutions apt for any Part 5.3A appointment by directors. The other set of minutes was clearly prepared as a reflection of actual events. This other set of minutes reads in part as follows:

“A letter received from Administrator Smith Hancock [Mr Hillig’s firm] informs all Darkinjung companies to cease all expenditure unless given prior approval by Administrator.

· The Administrator is currently the sole member of DLALC and can be the Director of the other Darkinjung companies.

· A letter has been received from David Pross one of the Directors of Darkinjung Pty Ltd asking for immediate payment of the $1.5M loan.

To continue with Darkinjung Funeral Fund (DFF) a voluntary Administrator through the Commonwealth should be appointed. A Voluntary administrator Appointment Document has been e-mailed to Nicole to pass onto DFF Directors for approval and signatures. The voluntary administrators being Anthony Warner and Cliff Sanderson of CRS Warner Sanderson of Sydney.

· No State laws are enforceable after appointment of a Commonwealth Administrator.

· Current Directors will most likely be sacked directly following the May 23rd DLALC meeting.

· If Voluntary Administrator is not appointed to DFF all monies in DFF Bank Accounts will pass straight to DLALC and not the Trust (Darkinjung Pty Ltd).

· Directors and staff will be liable for all monies spent to date by DFF with a ‘please explain’.”

264 The initials “JB” appear before a colon at the start of the passage just quoted. Mr Bradford accepted in cross-examination that he had been at part of the meeting and had spoken words to the effect set out, up to and including the end of the second bullet point (“… asking for immediate payment of the $1.5M loan”). His evidence was that the balance of the extract does not represent things he said, although he accepted that it does, to some extent, reflect opinions and views he holds.

265 It is significant that the minutes quoted above say nothing about solvency or any likelihood or possibility of insolvency. It is true that those matters are referred to in the minutes I have described as pro forma. There is reference there, in what I believe to be resolutions drafted and typed before the event, to an opinion of the directors that the company “is insolvent or is likely to become insolvent at some future time”. But in the version which obviously records what actually happened, the clear preoccupation is not with the state of the company’s solvency but with how to “continue with Darkinjung Funeral Fund (DFF)”. Indeed, those minutes do not contemplate that Funeral Co will repay DPL in accordance with DPL’s demand supposedly made pursuant to the loan agreement. The minutes record the following:

“If Voluntary Administrator is not appointed to DFF all monies in DFF Bank Accounts will pass straight to DLALC and not the Trust (Darkinjung Pty Ltd).”

266 Ms Hammond said in cross-examination that she considered this part of the minutes as not “written well” because the money would go first to DPL. She also confirmed that, subject to that qualification, the four bullet points at the end of the minutes correctly recorded things done at the meeting. The cross-examination continued:

“Q. Those were all matters that people were keen to avoid if it were possible to avoid, is that right?
A. No, it was about - it was about keeping the Funeral Fund operating for the members. We took great exception and we didn't want that threatened. We didn't want to lose that Funeral Fund. This was ours, and we were very proud of it.

Q. But to be clear about it, when you say ‘lose it’, you mean lose it by one way or another it falling into Mr Hillig's hands or, alternatively, Mr Hillig closing it down?
A. That's right.

Q. That was your principal concern in deciding to appoint voluntary administrators, is that right?
A. That's correct, yes.

267 An instrument of appointment addressed to Mr Warner and Mr Sanderson is signed by all four directors. They state that it was resolved at a meeting of the board that the company “is insolvent”.

HousingCo

268 I refer next to the events involving HousingCo. Evidence of those events was given by Mr Vandenberg, one of the directors (the others are Mr Aidon and Ms Sutherland). According to his evidence, HousingCo’s development had reached a point by early May 2006 where the concept of a housing scheme for DLALC members had been adopted and planning to retain one of two companies with expertise in the provision of housing assistance was well advanced.

269 Mr Vandenberg confirmed receipt by him of a letter from Mr Hillig on or about 10 May 2006 containing a request in the same terms as those quoted at paragraph [227] above. Mr Vandenberg acknowledged that the request was no more than a request and that HousingCo could have declined to act in accordance with it. But he was not sure what authority, if any, Mr Hillig had over HousingCo by virtue of his appointment as administrator of DLALC. He did not seek any legal advice on that matter. Mr Hillig’s request raised in him a fear that HousingCo might not be able to operate. Apart from the concern about the future, Mr Vandenberg did not see the letter as having any immediate impact on the day to day activities.

270 The relevant loan agreement between DPL and HousingCo is the agreement dated 18 May 2005 to which reference has already been made. It related to the loan of $5 million. Mr Vandenberg gave evidence that he was aware of clause 3 and was of the view that the letter from Mr Hillig might in the future cause to happen the event there mentioned. He accepted that there was no such immediate effect, merely a possibility. He said that he considered whether DPL was entitled to call up the loan.

271 A meeting of the directors of HousingCo was held on the weekend of Saturday 13 May 2006 and Sunday 14 May 2006, that is, immediately after receipt of the letter of 12 May 2006 from DPL purporting to call up the loan. Mr Vandenberg and his co-directors, Mr Aidon and Ms Sutherland, were all present. He says that they went through the loan agreement. He also suggested in his evidence that, despite the understanding that there was no more than a possibility that the letter from Mr Hillig might in future cause the clause 3 event to happen, the directors decided to proceed on the footing that the event had happened. They consulted Mr Boardman of NMC about options. He did not make any recommendation or give any advice. Mr Vandenberg does not recall whether the question of HousingCo’s solvency was addressed by the directors of HousingCo at their meeting.

272 According to Mr Vandenberg, it was Mr Aidon who suggested the need for a meeting of the directors of HousingCo to consider the letter from Mr Pross. The concept of appointment of voluntary administrators was, he said, presented as an option, but he was unable to identify any other option.

273 Mr Vandenberg further gave evidence that Mr Aidon, in discussion with his co-directors of HousingCo, expressed the opinion that voluntary administrators should be appointed. Mr Vandenberg also said in evidence that he regarded the company as insolvent because the loan had been called up, even though he did not actively turn his mind to the question of legal rights and legal obligations in relation to the loan and the validity or otherwise of the demand by DPL.

274 Two versions of the minutes of this meeting of the directors of HousingCo are in evidence. One is signed; the other is not. It may be that the signed version is the final version and that the unsigned version was superseded by it. If that is so (and I am prepared to think that it is), the differences between the two are revealing. A suggestion that the unsigned version was in the nature of an agenda to map out in advance what was to be done cannot be accepted. This is because it records matters of discussion that could not possibly have been foretold. The signed minutes are an amplified version of the unsigned minutes. The likelihood is that the unsigned minutes were prepared after the event and that they were later amplified and then signed.

275 The unsigned minutes suggest that the meeting was held on 14 May 2006 (a Sunday) at 4 pm. The signed minutes show the meeting having occurred on 14 and 15 May 2006 (Sunday and Monday) “at 4 pm”. Mr Vandenberg referred to discussions on Saturday and Sunday. It is not necessary to come to any concluded view about when the meeting was held. The stronger likelihood is that it was held on the Sunday.

276 The two versions of the minutes correspond in many respects. Each contains under the heading “Correspondence” the following:

“The Secretary tabled a recent letter from the Administrator requesting DHPL expenditure cease.

The Secretary also tabled a recent letter from the Darkingjung Trust which noted a Trust concern. The issue raised by the Trust makes reference to the Administrator’s letter requesting no further expenditure which effectively makes the DHPL inoperative.

The Trust has subsequently requested the return of funds.”

277 Under a heading “Discussion” there follows, in each set of minutes:

“The Directors discussed theirs [sic] rights and duties as Directors to protect the DHPL as well as their obligations to the members of DLALC to secure the housing programme.

The Directors considered the various options available to them.

1. Do nothing and await the Supreme Court Decision on Trust.

2. Delegate their powers to the Trust.

3. Appointment a [sic] Voluntary Administrator.

The Directors considered option one to be irresponsible given the recent appointment of an Administrator to DLALC. Option 2 should have a directive from a general meeting of members and this was not feasible. Option 3 was accepted.”

278 The two versions of the minutes then differ in the recording of resolutions. In the unsigned minutes, the only resolution is as follows:

“DHPL acknowledges 12th May 2006 Darkinjung Trust correspondence and has resolved to seek the immediate appointment of a voluntary administrator.”

279 In the signed minutes, there are two resolutions. The first is:

“DHPL acknowledges 12th May 2006 Darkinjung Trust correspondence and has resolved to seek the immediate appointment of a voluntary administrator given the likelihood that the company would become insolvent once funds are returned.”

280 The second resolution, as recorded in the signed minutes, is:

“That Anthony Warner and Cliff Sanderson having consented to be appointed to be appointed [sic] by the DHPL Board as Joint and Several Voluntary Administrators of the company under Part 5.3A of the Corporations Act 2001, the appointment will take effect by the company issuing a written notice appointing as Joint and Several Voluntary Administrators.”

281 These two versions of the minutes raise the distinct possibility that, in reality, the directors did not turn their minds at all to the question of the company’s insolvency or any likelihood of future insolvency. The form of resolution in the signed minutes to “seek the immediate appointment of a voluntary administrator” states a basis for the appointment (“given the likelihood that the company would become insolvent once funds are returned”). The corresponding form of resolution in the unsigned minutes contains no such explanation. In both cases, the narrative of discussion immediately preceding the resolution is the same. It shows no concern at all with the question of insolvency or likely future insolvency. It also shows that three options were considered, namely, await the decision of the court concerning the Trust, delegate the powers of the directors of HousingCo to the Trust and appoint a voluntary administrator. The first and second options were rejected – the first because it was considered “irresponsible given the recent appointment of an Administrator to DLALC”; and the second (whatever it meant) because of a perceived need for “a directive from a general meeting of members” (presumably, members of DLALC) and “this was not feasible”. Then follows the simple statement: “Option 3 was accepted”. This leaves the unmistakeable impression that Option 3 was chosen by default and without any attention being paid to the matter of solvency or likely future insolvency necessary to be addressed in connection with any appointment of administrators under Part 5.3A of the Corporations Act.

282 Even if one accepts that the resolution in fact passed was the resolution concluding with the words “given the likelihood that the company would become insolvent once funds are returned” (see paragraph [279] above), the situation is still one in which it is not evident from the minutes that the directors turned their minds to the crucial question, that is, whether HousingCo was obliged to comply with DPL’s demand for repayment of the loan. The decision therefore appears to have been a decision that if and when HousingCo, of its own volition, “returned” the funds, it would “become insolvent”.

283 An instrument of appointment addressed to Mr Warner and Mr Sanderson is signed by all of Mr Vandenberg, Mr Aidon and Ms Sutherland. In it they say that they have resolved that the company is “effectively insolvent”.

ProjectCo

284 There are in evidence minutes of a meeting of ProjectCo held on 14 May 2006. The minutes are of the same pro forma type as I have referred to in the description of the FuneralCo meeting. In fact, the document is in exactly the same form as that for FuneralCo, save for the company name and ACN in the heading, the names of the persons listed as present and the name of the person “appointed as the chairman of the meeting”. That the names of those present were inserted in advance is testified by the fact that, in the ProjectCo document, the word “absent” has been written against the name of Mr Cook in the typewritten list of persons present. This appears to have been written by Mr Bradford who has signed the minutes as chairman and also appears to have completed in hand blank spaces for the place at which the meeting was held (“Wyong NSW”) and the date (“14th May 2006”). In the event, therefore, two out of a total board of three were present.

285 Because these minutes are in the same form as one of the sets of minutes for FuneralCo, they record the passing of a resolution expressing the “opinion of the directors” that “the company is insolvent or likely to become insolvent”. Otherwise, they throw no light on the basis upon which the directors resolved to appoint administrators.

286 The minutes record the presence of two directors at the meeting, Mr Bradford and Ms Miles. Mr Cook, as I have said, is recorded as “absent”. This raises a question about the efficacy of a resolution in the following terms recorded in the minutes:

“It was agreed by the directors that the notice requirements for a meeting of directors be waived for this meeting and the directors agreed that the meeting had been properly convened.”

287 It was submitted on behalf of Mr Hillig, and I accept, that if Mr Cook did not have notice of the meeting or did not in fact agree to the other directors proceeding without him, the meeting of directors was not duly convened. Proper notice in such a way as to let all members of a body know when and where a meeting is to be held is one of the prerequisites to a validly constituted meeting, unless a particular member has let it be known that he is willing for a meeting to be held without notice to him.

288 Under s.436A(1) of the Corporations Act, the power of a company, by writing, to appoint an administrator arises only if “the board has resolved” certain things. Where those things are purportedly done at a meeting, they are not validly and properly done unless the meeting is duly constituted. Here, the evidence points to the conclusion that the meeting was not validly constituted and that there was accordingly no resolution of the board.

289 Ms Miles did not give evidence. Mr Bradford’s evidence touched only slightly on the particular matter of the ProjectCo purported meeting. I have already referred to his testimony about the approach taken by the directors of DPL and about what he said when he attended the FuneralCo meeting. I am prepared to think that, in the ProjectCo context, he merely followed through with the intentions explained in those contexts.

290 The instrument of appointment addressed to Mr Warner and Mr Sanderson is signed by Mr Bradford and Ms Miles. There is a space for Mr Cook’s signature but it is blank. The document says that the board of directors has resolved that the company “is insolvent”.

Further factual findings in relation to the Part 5.3A matters

291 It is clear that Mr Bradford played a dominant role in the events of the period 12 to 14 May 2006. He was particularly experienced in Aboriginal land council matters. He had served as chief executive officer of NSWALC from April 2000 until December 2002. He had previously been the chairman of another local Aboriginal land council. It is clear that he had been heavily involved in the development of the structure based on the Trust and the Enterprise Companies. He had been a member of DLALC’s Trust Subcommittee since March 2003, having referred at a meeting of DLALC in the previous month to the “pitfalls in establishing a trust”.

292 One matter meriting particular attention is why Mr Bradford, experienced and knowledgeable as he was, could possibly have thought that Mr Hillig’s letters of 10 May 2006 to the Enterprise Companies involved an element of compulsion or coercion – in other words, how he could possibly have construed a relatively mild and polite request as an irresistible command leading inevitably to the conclusion that there had been a sudden break in the continuity of the operations of the Enterprise Companies of the kind referred to in clause 3 of each loan agreement.

293 Mr Bradford was cross-examined about a number of situations involving DLALC and its affairs in which he had shown himself to be anything but compliant in the face of requests. He was taken to a request dated 22 July 2004 by NSWALC for an undertaking that DLALC would not transfer further funds to DPL and an undertaking that DPL would not transfer further funds to the other bodies until the legality of the trust had been established. His response was that he had not replied to the request and that transfers of funds had continued thereafter. It was put to him that he totally ignored the request but he denied that, saying that his reaction had been to seek legal advice which confirmed that there was no legal impediment to continuation of transfers of funds.

294 When asked whether he had similarly sought legal advice upon receipt of Mr Hillig’s letter of 10 May 2006, Mr Bradford gave a negative answer, thus making it clear that the events which led to the demands by DPL upon the Enterprise Companies and the decisions of the boards of those companies to appoint administrators were embarked upon without legal advice.

295 In the same vein, Mr Bradford was taken to a letter of 11 May 2005 written by him in response to a letter of 6 May 2005 from the Chief Executive Officer of NSWALC. The letter of 6 May 2005 was of four pages and referred to four matters. One of them was the possibility that certain motions at meetings of DLALC involved breach of the Protected Disclosures Act 1994. The last paragraph on page 2 of the letter (which carried on to page 3) reads as follows:

“A breach of section 20 of the PDA is not merely an administrative error but, rather, constitutes an offence punishable by up to 12 months imprisonment. For this reason, and given the stated reasons for taking the action set out in the correspondence, NSWALC would have hoped that DLALC might have exercised more caution in taking the action which it apparently has.”

296 This relatively mild admonishment prompted a far from mild response from Mr Bradford in his letter of 11 May 2005:

“I refer to correspondence under your hand dated 6th May 2005 and forwarded by facsimile to Darkinjung’s CEO Mr. Damien Aidon the evening of Friday 6th May 2005 and provided to me Monday 9th May 2005.

Having perused said correspondence I believe it fair to say that such is little more than 4 pages of unadulterated drivel.

I have little doubt as to you not being the author but merely the goose who affixed his signature.

In the last paragraph on page 2 attention is drawn to the part that a breach of section 20 of the Public Disclosures Act is an offence punishable by up to 12 months imprisonment so what! is such meant to strike the fear of God into us?

For the record please be advised that I am quite partial to prison tucker and a regulated lifestyle having in the past been subject to two stays at one of Her Majesty’s maximum security establishments a far cry from a stay at the state run motel that a breach of the P.D.A. would attract, in fact when compared with my previous incarceration such would be little more than a Sunday school picnic.

To coin a phrase used by lags from the past ‘12 months I could do that standing on my head’. The prospect of 12 months free board and lodging is given, my current employment situation quite appealing.

In the future if it is at all possible it would be appreciated if correspondence emanating from your organization were to be of substance and not just meaningless drivel which [sic] the author’s firm is no doubt handsomely remunerated.

There is an old adage which goes ‘those that can do those that can’t talk about it’. I believe that if NSWALC’s top echelon wish to avoid becoming a bigger joke than that which they are already seen to be then they would do well to adhere to the above adage.”

297 The evidence leaves no doubt that Mr Bradford well knew the difference between a request and an assertion of obligation; that he well knew how to decline or ignore a request; and that he could be forceful in the extreme in rejecting propositions he did not like.

298 I also reject the possibility that Mr Bradford saw the requests made by Mr Hillig to the Enterprise Companies as amounting to command or compulsion because of respect Mr Bradford had for Mr Hillig and the office he occupied. Rather, Mr Bradford showed utter contempt for Mr Hillig and his office. This was made clear by a message from Mr Bradford disseminated electronically throughout the Aboriginal network on 20 July 2006:

“ Network Message

Hillig Strikes Again – but his days are numbered.

Not satisfied with his contemptible and revolting actions of Monday 18th July 2000 where without warning he (Hillig) summarily sacked Darkinjung CEO Mr Damien Aidon whilst he (Aidon) was on sorry business, yesterday Hillig again without warning struck again terminating the employment of activist and long time Darkinjung member Ms Veronica Graf.

Hillig the darling of one time one term minister Orkopolous is a control freak who appears to demonstrate symptoms of a number of personality disorders. If I was a medical practitioner and qualified to comment which I am not, however, if I were I would probably say that Hillig definitely suffers from the ‘Little willie Syndrome’. I strongly suggest that Hillig view the latest black film, ‘Ten Canoes’.

When terminating Ms Graf he never had the guts to front up and carry out his dirty work himself, (little willie men can’t handle strong black people, especially women). Instead he had Igore his sniveling [sic] lackey advise Ms Graf she was finished. However Ms Graf has advised that she has no intention of leaving her position and will continue to front up and continue performing the important tasks which the members appointed her to undertake.

The sacking of Ms Graf is no doubt in retaliation for her getting on top of him (little willie men can’t stand women being on top) in relation to a ruling by the Registrar that is not the Chairperson of Darkinjung and must elect a member to Chair each meeting of the Council – on both occasions Ms Graf was elected by the members to that position relegating Hillig to the dunces corner – He can’t stand it and he advised he won’t be holding any further meeting until the Registrars ruling has been clarified, I presume he will wish the to court to rule I say, bring it on.

Hillig’s no show may also have something to do with an incident that occurred last Friday when four white men of stocky build entered the Land Council looking for Hillig. When advised by the receptionist that he was not there but possibly at his Parramatta office, they said ‘not interested, do you have his home address’? The receptionist advised that she did not and they left in a black BMW with Victorian plates.

It would appear that others share our feelings of Hillig, ahhh one can only hope. In any event Hillig will be easily found, as next week he will be in the Supreme Court from Tuesday through Friday.

Jeffrey Bradford”

299 Mr Bradford deliberately chose to misconstrue the request in Mr Hillig’s letters of 10 May 2006 as command or compulsion when, as he knew perfectly well, that was not its character. It is likely that it was he who invented the deliberate non sequitur that the making of the request by Mr Hillig somehow broke the continuity of the operations and businesses of the Enterprise Companies when, as he well knew, that was not the effect at all. I say this because, on the evidence, none of the other DPL directors really turned their minds to the matter. They were more concerned with generalised fears about Mr Hillig “getting his hands on” money they saw as owned by the Aboriginal community and preserving the enterprises of which they were, with justification, proud. Mr Bradford concocted what he knew to be a false basis for asserting that the debts owed to DPL by the Enterprise Companies had become payable and for a calling up of those debts by DPL. Those within DPL involved in making the calls were content to fall in with the plan devised by Mr Bradford. And likewise, those within the Enterprise Companies who acted to appoint administrators acted in pursuance of the plan conceived by Mr Bradford and based on the false premise he had chosen to embrace and propound.

300 Some witnesses referred to Mr Boardman of NMC as the source of a suggestion that the Enterprise Companies might appoint voluntary administrators. Mr Boardman did not give evidence. The likelihood, in my view, is that NMC, which had been heavily involved in the creation of the structure based on DPL, the Trust and the Enterprise Companies, together with Mr Bradford, merely gave advice in accordance with the master plan. Mr Hanrahan confirm that NMC had prepared the letters of demand. If, as he testified, he considered the action of calling up the loans “hasty”, he certainly does not seem to have done anything to press that view on anyone.

301 The ultimate aim of the plan for the Enterprise Companies came out during Mr Bradford’s cross-examination. After he had eventually conceded that the letters of 10 May 2006 conveyed nothing more than a request and that it would have been possible to reply simply that the request would not be complied with, the cross-examination continued:

“Q. It was always open to you, if you needed advice as to the extent this request was binding on you and the consequences it might have, it was open for you to get legal advice from Mr Cunliffe or whoever in relation to that?
A. We could have sought legal advice.

Q. You didn't?
A. Not in that because I, and I think my fellow directors, seen it as fairly clear-cut, the issue.

Q. What was clear-cut is you thought you were going to lose control of the funds, is that right?
A. Lose control of the operation of our companies.

Q. Of course, you have done that by appointing a voluntary administrator, haven't you?
A. At this point in time, yes.

HIS HONOUR: Q. Was the voluntary administrator viewed differently from the administrator of the Darkinjung Aboriginal Land Council from the point of view of being an outsider?
A. For this purpose, we were hoping to - we would be able to enter into a DOCA with Warner - what is their name? Warner Sandeman, and continue operating the company under our control.

MURR: Q. That was the plan, wasn't it?
A. I beg your pardon?

Q. Wasn't it?
A. That we probably would have been able to reach an agreement to continue to run our own affairs, yes.

Q. That was the plan at the outset, you would go through the sham of calling up the loan, appointing voluntary administrators, get a deed of arrangement and get the companies back under your control?
A. I don't agree that was a sham. That was an option. Certain things have been put to me today, options. Certainly we had an option of coming to an agreement with the voluntary administrators to enter into an agreement to continue to run our companies, yes.

Q. That is what you sought to do, that is what the whole thing was about, to achieve a situation whereby you would be back in control of the companies under a deed of company arrangement?
A. I don't see that that is an improper view to have that we are able to control our own affairs.

Q. But that is--
A. That is what we have been trying to do for years.

302 And later:

“Q. Part of your objective in entering into this arrangement of calling up the loans and appointing voluntary administrators, part of your objective, I suggest to you, was precisely to make sure that the assets that they controlled and the moneys they controlled did not come into the hands of Mr Hillig; that's right, isn't it?
A. They are the independent company assets. They should be controlled by the democratically appointed directors.

303 The way in which Commonwealth law prevails over State law in case of inconsistency played a large part in Mr Bradford’s thinking as a whole. This is shown by a letter he wrote to the Premier on 15 May 2006:

"Dear Premier,

I have written to you before about your Minister for Aboriginal Affairs' vendetta against Darkinjung Local Aboriginal Land Council. In this he has had the vindictive support of officials at the New South Wales Land Council who we believe hate us. Now your Minister has put in an administrator, I am out of office, but all the related entities being established under Commonwealth law will be harder nuts to crack. We will see to that.”

304 Mr Bradford accepted in cross-examination that he had been aware for a long time that Commonwealth law takes precedence over State law in case of inconsistency. He also made it clear that he regarded companies registered under and created by the Corporations Act of the Commonwealth as able to withstand controls imposed by State law to which bodies created by State level might be subjected.

Conclusions in relation to voluntary administrations

305 I am satisfied that the events leading up to and culminating in the appointment of administrators by the directors of the Enterprise Companies under Part 5.3A of the Corporations Act were a deliberate contrivance intended to create what can only be described as a false pretext for their appointment. Even if clause 3 of each loan agreement provides, on a proper construction, that the principal sum is immediately payable if the borrower company ceases to operate and conduct its business (and I note that clause 3 does not actually say this in a positive way), there was simply no basis for any rational view that the mere request in Mr Hillig’s letter of 10 May 2006 to each Enterprise Company had brought about such a cessation or was even remotely capable of doing so in the future.

306 The directors of DPL, giving effect to a plan which I consider to have been conceived principally by Mr Bradford, required payment of the principal sum by each Enterprise Company when no legal basis for doing so existed. Those directors either knew that there was no basis for any such demand or did not turn their minds to the question. And the directors of each Enterprise Company in due course went along with the plan. They did not seek legal advice as to the validity and propriety of DPL’s demand. They did not pause to consider to any great extent the Enterprise Company’s separate position or to question the assertion of DPL that the principal sum was immediately payable. To the extent that they turned their minds at all to the question of insolvency or possible future insolvency which should have been central to their decision to appoint administrators under Part 5.3A of the Corporations Act, they took uncritically and at face value the false proposition that the demand by DPL represented an immediate and pressing financial obligation. The directors of each of the companies failed to give genuine consideration to the solvency question, with the result that they did not form the opinion essential to valid appointment of administrators. In the case of ProjectCo there was not even a duly convened meeting of the directors.

307 The directors of each Enterprise Company were concerned to protect the company from Mr Hillig whom they saw as a threat. They believed that he would pursue action to dismantle the structure based on DPL, the Trust and the Enterprise Companies. It was with a view to thwarting that that the directors acted in each case. It is not clear that Mr Bradford had communicated to them the longer term plan of re-taking possession of the companies from the administrators through a deed of company arrangement. Nor is it clear that they were privy to the thinking which regarded officials appointed under Commonwealth law as more powerful than those appointed under State law. But whether they knew of those aspects of the thinking or not, they willingly and deliberately went along with a plan that involved appointment of voluntary administrators for the purpose of insulating the Enterprise Companies from the influence of the sole member DLALC after its functions and powers had passed into the hands of an administrator appointed under the ALR Act. That was an irrelevant and impermissible purpose.

308 DLALC has made out an entitlement to the principal order sought in respect of each Enterprise Company, that is, an order that the voluntary administration is invalid, void and of no effect.

Disposition

309 On all claims other than the claims of Mr Hillig, on behalf of DLALC, for orders in respect of the Part 5.3A administrations of FuneralCo, HousingCo and ProjectCo, I shall receive further submissions as outlined at paragraphs [221] and [222] above.

310 In relation to the claims concerning Part 5.3A administration, I make orders 1, 2, 3 and 4 in the originating process filed in proceedings 3528/06.

**********

03/10/2006 - Formatting on various paras corrected - Paragraph(s) 18, 54, 63, 67, 157, 162, 194, 200

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Citations

Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council [2006] NSWSC 1008

Most Recent Citation

Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Land Management Act (“Mt Irvine Claim”) [2024] NSWLEC 127

Cases Citing This Decision

23

Adrenaline Pty Ltd v Bathurst Regional Council [2015] NSWCA 123

Darkinjung Local Aboriginal Land Council v Darkinjung Pty Ltd (in liq) [2010] NSWCA 351

Cases Cited

39

Statutory Material Cited

7

R v Wright; Ex parte Waterside Workers' Federation of Australia [1955] HCA 35

Hillig v Darkinjung Pty Ltd [2006] NSWSC 594

CITATION:	Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council & Ors; Hillig v Darkinjung Pty Ltd & Ors; Darkinjung Local Aboriginal Land Council v Warner & Ors [2006] NSWSC 1008 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	25/07/06, 26/07/06, 27/7/06, 28/7/06, 08/08/06, 09/08/06, 29/08/06, 30/08/06, 31/08/06, 01/09/06, 05/09/06, 06/09/06, 07/09/06 Written submissions: 13/09/06, 15/09/06, 18/09/06, 22/9/06
JUDGMENT DATE :	3 October 2006
JURISDICTION:	Equity Division Corporations List
JUDGMENT OF:	Barrett J
DECISION:	Submissions to be made as to consequences of findings that (a) payments by Darkinjung Local Aboriginal Land Council to Darkinjung Pty Ltd were beyond statutory authority and capacity of land council; (b) such payments were made for improper purpose; and (c) payments by Darkinjung Pty Ltd, ostensibly as trustee of charitable trust, to enterprise companies were not in furtherance of charitable purpose and did not involve distribution in conformity with trust instrument. In relation to voluntary administration of each of Darkinjung Funeral Fund Pty Ltd, Darkinjung Housing Pty Ltd and Darkinjung Projects Pty Ltd, declaration that appointment of administrators invalid, void and of no effect
CATCHWORDS:	ABORIGINALS AND TORRES STRAIT ISLANDERS - local Aboriginal land council constituted under State law - authority and capacity as a statutory corporation - statutory objects, functions, powers, duties and responsibilities - CORPORATIONS - statutory corporations - delineating authority and capacity by reference to objects, functions and powers - duty to administer property within confines of statutory scheme - whether ultra vires to transfer property to charitable trust benefiting relevant Aboriginal group - whether transfer authorised by appropriate corporate action - TRUSTS AND TRUSTEES - charitable trusts - property held on trust for purpose of benefiting Aboriginal group "by doing" certain acts - extent to which purpose charitable - whether application of funds to enterprises is within charitable purpose - whether power to apply and distribute income and capital permits loans to enterprises - CORPORATIONS - voluntary administration - whether directors formed genuine opinion as to insolvency or likely insolvency - whether resort to Part 5.3A for improper purpose
LEGISLATION CITED:	Aboriginal Land Rights Act 1983, ss.3, 4(2), 36(3), 38, 40, 41, 47, 49, 50, 51, 52, 53, 54, 62, 73, 77, 78, 81, 82, 152, 153, 158, 222, Parts 10, 11, 12 Aboriginal Land Rights Amendment Act 2001, s.51 Aboriginal Land Rights Regulation 2002 Charitable Trusts Act 1993, s.23 Companies and Securities Legislation (Miscellaneous Amendments) Act 1983 (Cth), s.33 Corporations Act 2001 (Cth), Part 5.3A, ss.124, 136, 232, 233, 249B(1), 436A, 437(2)(c), 447A, 461(1)(a), 461(1)(k) Interpretation Act 1987, ss.21, 33, 50
CASES CITED:	Aboriginal Community Benefit Fund Pty Ltd v Batemans Bay Local Aboriginal Land Council (1996) 22 ACSR 56 Aboriginal Community Benefit Fund Pty Ltd v Batemans Bay Local Aboriginal Land Council (1997) 42 NSWLR 593 ACN 002 596 509 Pty Ltd v Minshull (2005) 53 ACSR 598 Aloridge Pty Ltd v Christianos (1994) 13 ACSR 99 Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37 Ashbury Carriage & Iron Company (Limited) v Riche (1875) LR 7 HL 653 Attorney-General v Great Eastern Railway Company (1880) 5 App Cas 473 Attorney-General v Perpetual Trustee Co Ltd (1940) 63 CLR 209 Attorney-General for the State of Victoria v Housing Commission (1979) 44 LGRA 258 Australasian Memory Ltd v Brien (1998) 29 ACSR 344 Bagshaw v The Eastern Union Railway Company (1850) 2 Mac & G 389; 42 ER 151 Barby v Perpetual Trustee Co Ltd (1937) 58 CLR 316 Baroness Wenlock v The River Dee Company (1883) 36 ChD 674n Baroness Wenlock v The River Dee Company (1885) 10 App Cas 354 Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Ltd (1998) 194 CLR 247 Beaudesert Shire Council v Smith (1966) 120 CLR 145 Birkdale District Electric Supply Co Ltd v Corporation of Southport [1926] AC 354 Blacktown City Council v Macarthur Telecommunications Pty Ltd (2003) 47 ACSR 391 Bovis Lend Lease Pty Ltd v Wily (2003) 47 ACSR 351 Canadian Bank of Commerce v Cudworth Rural Telephone Co [1923] SCR 618 Case of Suttons Hospital (1612) 10 Co Rep 23a; 77 ER 960 Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418 Communities Economic Development Fund v Canadian Pickles Corporation [1991] 3 SCR 388 Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531 Dareton Local Aboriginal Land Council v Wentworth Council (1995) 89 LGERA 120 Downey v Crawford (2004) 51 ACSR 182 East Anglian Railways Co v Eastern Counties Railway Co (1951) 11 CB 775; 138 ER 680 Eastern Counties Railway Co v Hawkes (1855) 5 HL Cas 331; 10 ER 928 Equiticorp Finance Ltd v Bank of New Zealand (1993) 32 NSWLR 50 Flynn v Mamarika (1996) 130 FLR 219 German v Chapman (1877) 7 ChD 271 Harvey v Adelaide & Hindmarsh Tramway Company (1881) 15 SALR 136 Hazell v Hammersmith & Fulham London Borough Council [1992] 2 AC 1 Hillig v Darkinjung Pty Ltd (2006) 57 ACSR 733 Howarth v McMahon (1951) 82 CLR 442 Humphries v Proprietors Surfers Palms North Group Titles Plan 1955 (1994) 179 CLR 597 Inland Revenue Commissioners v Baddeley [1955] AC 572 IW v City of Perth (1997) 191 CLR 1 Kathleen Investments (Australia) Ltd v Australian Atomic Energy Authority (1977) 139 CLR 117 Kazar v Duus (1998) 29 ACSR 321 Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 Lyde v Eastern Bengal Railway Company (1866) 36 Beav 10; 55 ER 1059 MacGregor v The Official Manager of the Deal & Dover Railway Company (1852) 22 LJQB 69 McMaster v Eznut Pty Ltd [2006] WASC 109 Morice v Bishop of Durham (1805) 10 Ves Jun 521; 32 ER 947 Morrison v Shire of Morwell [1948] VLR 73 New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300 New York & Maryland Line Railroad Co v Winans 58 US 30 (1854) News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 Northern Territory v Mengel (1995) 185 CLR 307 Parramatta City Council v Hale (1982) 47 LGRA 319 Pilkington v Inland Revenue Commissioners [1964] AC 612 Prentice v Cummins (2002) 194 ALR 94 Public Trustee v Attorney General of New South Wales (1997) 42 NSWLR 600 Re Birbank Permanent Building Society [1912] 2 Ch 183 Re Bryning [1976] VR 100 Re Mathew [1951] VLR 226 Re The Honey Pool of Western Australia (No 2) (1988) 14 ACLR 621 Salomons v Laing (1850) 12 Beav 339; 50 ER 1091 Sanpine v Koompahtoo Local Aboriginal Land Council [2005] NSWSC 365 The National Bank of Australasia v Cherry (1870) LR 3 PC 299 Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338 Thomas v West Jersey Railroad Company 101 US 71 (1870) Wagner v International Health Promotions Pty Ltd (1994) 15 ACSR 419 Williams v Hursey (1959) 103 CLR 30 Winch v The Birkenhead Lancashire and Cheshire Junction Railway Company (1852) 5 De G & Sm 562; 64 ER 1243
PARTIES:	(1) Darkinjung Pty Limited – Plaintiff Darkinjung Local Aboriginal Land Council – First Defendant Darkinjung Cattle Company Pty Limited – Second Defendant Darkinjung Housing Pty Limited – Third Defendant Darkinjung Funeral Fund Pty Limited – Fourth Defendant NSW Aboriginal Land Council – Fifth Defendant Darkinjung Projects Pty Limited – Sixth Defendant (2) Peter Hillig in his capacity as Administrator of Darkinjung Local Aboriginal Land Council - Plaintiff Darkinjung Pty Limited - First Defendant Jeffrey John Bradford - Second Defendant David Pross - Third Defendant Greg Flanders – Fourth Defendant George Alexander Watts – Fifth Defendant Michael Stuart Jones – Sixth Defendant (3) Darkinjung Local Aboriginal Land Council – Plaintiff Anthony John Warner – First Defendant Clifford John Sanderson – Second Defendant Darkinjung Projects Pty Limited – Third Defendant Darkinjung Funeral Fund Limited – Fourth Defendant Darkinjung Housing Pty Limited – Fifth Defendant
FILE NUMBER(S):	SC (1) 5634/05; (2) 2842/06; (3) 3528/06
COUNSEL:	(1) Mr S.D. Epstein SC/Mr D.A.C. Robertson – Plaintiff Mr D.H. Murr SC/Mr D.A. Smallbone – First Defendant Ms T.L. Jowett – Second Defendant Mr G. Lucarelli – Third, Fourth and Sixth Defendants Mr J.K. Kirk – Fifth Defendant (2) Mr D.H. Murr SC/Mr D.A. Smallbone – Plaintiff Mr S.D. Epstein SC/Mr D.A.C. Robertson – Defendants (3) Mr D.H. Murr SC/Mr D.A. Smallbone – Plaintiff Mr G. Lucarelli – Defendants
SOLICITORS:	(1) Norton White Melbourne – Plaintiff Patrick Woods & Company – First Defendant Blackshield & Co - Second Defendant Cutler Hughes & Harris – Third, Fourth and Sixth Defendants Chalk & Fitzgerald – Fifth Defendant (2) Patrick Woods & Company – Plaintiff Norton White Melbourne – Defendants (3) Patrick Woods & Company – Plaintiff Cutler Hughes & Harris - Defendants

*15 July 2004:	$19,582,713.36 paid by DLALC to DPL.
8 August 2004:	$300,000.00 paid by DPL to National Management Consultants Trust Account.
19 August 2004:	$5,000,000.00 paid by DPL “pursuant to a loan agreement to the second defendant” (i.e, CattleCo).
*27 October 2004:	$69,100.00 paid by DLALC to DPL.
18 May 2005:	$3,318,950.81 paid by DPL to National Management Consultants Trust Account.
18 May 2005:	$5,000,000.00 paid by DPL “pursuant to a loan agreement to Darkinjung Housing Pty Limited”.
18 May 2005:	$1,500,000.00 paid by DPL “pursuant to a loan agreement to Darkinjung Funeral Fund Pty Limited”.
22 June 2005:	$2,185,542.90 paid to National Management Consultants Trust Account “pursuant to a loan agreement to Darkinjung Projects Pty Limited on behalf of the first defendant [DLALC] for its future operation”.
*7 July 2005:	$5,453,375.25 paid by DLALC to DPL.
*7 July 2005:	a further $651,907.00 paid by DLALC to DPL.
23 August 2005:	$500,000.00 paid by DPL “from the National Management Consultants Trust Account pursuant to a loan agreement to Darkinjung Projects Pty Limited”.