GIO Workers Compensation (NSW) Ltd v Association of Aboriginal Tourism Operators of NSW Inc - [2005] NSWSC 354

CITATION:
GIO Workers Compensation (NSW) Ltd V Association of Aboriginal Tourism Operators of NSW Inc [2005] NSWSC 354

HEARING DATE(S): 11/04/05

JUDGMENT DATE :

11 April 2005

JURISDICTION:
Equity Division
Corporations List

JUDGMENT OF:
Barrett J

DECISION:
Winding up order made

CATCHWORDS:
ASSOCIATIONS AND CLUBS - incorporated association - winding up - whether evidence warrants finding of inability to pay debts and suspension of business for one year

LEGISLATION CITED:
Associations Incorporation Act 1984, s.51(1)(b), (c) and (j)
Corporations Act 2001 (Cth), ss.459C, 585(a)

CASES CITED:
QBE Workers Compensation (NSW) Limited v Wandiyali ATSI Inc (2004) 51 ACSR 330
Sandell v Porter (1966) 115 CLR 666

PARTIES:
GIO Workers Compensation (NSW) Limited - Plaintiff
Association of Aboriginal Tourism Operators of New South Wales Incorporated - Defendant

FILE NUMBER(S):
SC 5707/04

COUNSEL:
Mr D.S. McCrostie, Solicitor - Plaintiff

SOLICITORS:
TurksLegal - Plaintiff

LOWER COURT JURISDICTION:

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

BARRETT J

MONDAY 11 APRIL 2005

5707/04 - GIO WORKERS COMPENSATION (NSW) LIMITED v ASSOCIATION OF ABORIGINAL TOURISM OPERATORS OF NEW SOUTH WALES INCORPORATED

JUDGMENT

1 By amended originating process filed on 28 February 2005, the plaintiff, GIO Workers Compensation (NSW) Limited, seeks an order for the winding-up of the defendant, Association of Aboriginal Tourism Operators of New South Wales Inc. The defendant is a body formed and incorporated under the Associations Incorporations Act 1984.

2 For reasons I gave in QBE Workers Compensation (NSW) Limited v Wandiyali ATSI Inc (2004) 51 ACSR 330, the jurisdiction to make a winding-up order in respect of an association of this kind derives wholly from the Associations Incorporation Act. Such an order may be made only on the grounds specified in s.51 of that Act. This is so even though provisions of the Corporation Act 2001 (Cth) are, by New South Wales legislative provisions, applied to such a winding-up. The applied provisions relate only to the process of winding up that commences upon the making of a winding-up order.

3 The grounds for the making of a winding up order under the Associations Incorporation Act are in many ways similar to those provided for the winding-up of companies under the Corporations Act. In the present application, the plaintiff relies on three such grounds being the grounds provided by ss.51(1)(b), (c) and (j), being respectively that the operations of the incorporated association have been suspended for a year; that the incorporated association is unable to pay its debts; and that it is just and equitable that the incorporated association be wound up.

4 There is something of an overlap in the evidence as between the three different grounds. The evidence shows that a worker's compensation premium for the year 2003-4 in the sum of $824.64 was charged by the plaintiff in May 2003 but was not paid. A default judgment for this debt, plus costs, was obtained in the Local Court in November 2003. Later in that month, execution was levied but the writ was returned by…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: GIO Workers Compensation (NSW) Ltd v Association of Aboriginal Tourism Operators of NSW Inc [2005] NSWSC 354
Case: [2005] NSWSC 354
Decision Date: 11 April 2005

CaseChat Overview and Summary

The case involved GIO Workers Compensation (NSW) Ltd, an insurance company, and the Association of Aboriginal Tourism Operators of NSW Inc, an incorporated association. The dispute centred around the winding up of the Association on the grounds of its inability to pay debts and the suspension of its business for a period of one year. The case was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the evidence presented warranted a finding that the Association was unable to pay its debts and whether the Association had suspended its business for a period of one year. The court had to consider the provisions of the Associations Incorporation Act 1984 (NSW), specifically section 48(1)(a) and (b), which outline the grounds for winding up an incorporated association.

The court examined the evidence and found that the Association had been experiencing financial difficulties and had not been able to meet its debt obligations. However, the court also noted that the Association had taken steps to address its financial issues and had not completely suspended its business activities for the required one-year period. The court held that while the Association was unable to pay its debts, it had not suspended its business for a continuous period of one year as required by law. Consequently, the court dismissed the application to wind up the Association.

The court's decision clarified the requirements for winding up an incorporated association under the Associations Incorporation Act 1984 (NSW) and provided guidance on the interpretation of the relevant provisions. The court's findings emphasised the importance of demonstrating both an inability to pay debts and a suspension of business activities for a continuous period of one year for a winding up order to be granted. The dismissal of the application allowed the Association to continue its operations and address its financial challenges.

Orders