Goldsworthy v Wirilda Association - [2016] VSC 788

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

CORPORATIONS LIST

S ECI 2016 1145

GRAEME ROBERT GOLDSWORTHY and WILLIAM CAWCUTT	Plaintiffs
v
WIRILDA PROJECT ASSOCIATION LTD (ACN 005 080 562) and EUGEN REICHARDT	Defendants

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JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2016
DATE OF JUDGMENT:	30 November 2016
CASE MAY BE CITED AS:	Goldsworthy v Wirilda Association
MEDIUM NEUTRAL CITATION:	[2016] VSC 788

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CORPORATIONS – Application to rectify ASIC Register – Consideration of circumstances justifying rectification – Disputes as to status and operation of an Association’s Constitution – Bases for relief pursuant to s 1322(4)(b) of the Corporations Act 2001.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J Brereton	McDonough & Co.
For the First Defendant	No Appearance
For the Second Defendant	In Person

HIS HONOUR:

This is the trial of a proceeding which was commenced by Originating Motion filed on 13 July 2016 in which Graeme Robert Goldsworthy and William Cawcutt (the plaintiffs) seek orders pursuant to s 1322(4)(b) of the Corporations Act 2001 (Cth) (the Act) directing the Australian Securities and Investments Commission (ASIC) to rectify its Register of companies in respect of the first defendant, Wirilda Project Association Ltd (Wirilda Association).

The plaintiffs claim that the second defendant caused the ASIC Register of companies to be altered in a manner which is inconsistent with the will of the Members of Wirilda Association and which was unauthorised by Wirilda Association and unlawful. Further, the plaintiffs assert that the ASIC Register of companies requires rectification so as to be consistent with the resolutions of Wirilda Association.

Wirilda Association is a company limited by guarantee and registered with the Australian Charities and Not-for-Profit Commission.

Since it was registered in about 1974, Wirilda Association’s primary purpose has been to manage the Wirilda Environment Park (Wirilda Park). The Wirilda Park is an area of land which is located between Yallourn North and Tyers in Gippsland, Victoria. Wirilda Park has facilities including an education centre, picnic and barbecue facilities and comprises areas appropriate for bushwalking and birdwatching. The purposes of Wirilda Park include:

(a) promoting and establishing tourist facilities in the area of the Lower Tyres River Valley;

(b) promoting the conservation and displaying of flora and fauna within Wirilda Park boundaries;

(c) encouraging and fostering amongst students and the general public, the conservation, protection, renewal and enjoyment of the natural environment; and

(d) providing and maintaining facilities and buildings that will enhance the use and care of Wirilda Park by the general public.

Wirilda Association’s income is principally generated from rental payments made in relation to five residential houses which are located on the Wirilda Park site. Portions of the land are also let for grazing and to accommodate a pipeline which is owned and operated by the petroleum company Esso. From time to time portions of Wirilda Park have also been sold. This has included the sale of a parcel of land to Esso during 2015.

The primary role…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2016] VSC 788
Decision Date: 30 November 2016

CaseChat Overview and Summary

The case of Goldsworthy v Wirilda Association involved an application to rectify the Australian Securities and Investments Commission (ASIC) Register to reflect the correct status of the Wirilda Association. The dispute centred on the interpretation of the Association's Constitution and the procedural steps required to effect a change in the organisation's status as recorded by ASIC. The application was heard and determined in the Federal Court of Australia.

The central legal issue before the Court was whether the applicant had demonstrated sufficient grounds to justify the rectification of the ASIC Register. The applicant argued that there had been a dispute regarding the operation and status of the Association's Constitution, and that the current register did not accurately reflect the true status of the Association. The Court was required to determine whether the applicant had met the criteria set out in section 1322(4)(b) of the Corporations Act 2001 to warrant rectification.

The Court considered the evidence presented regarding the internal disputes and the operation of the Association's Constitution. It was noted that there had been disagreements among members about the interpretation and application of certain provisions. The Court held that the applicant had established sufficient grounds for rectification, as the ASIC Register did not accurately reflect the internal workings and status of the Association. The Court found that the circumstances justified rectification to ensure the Register aligned with the actual state of the Association. As a result, the Court ordered the ASIC Register to be rectified to accurately reflect the status of the Wirilda Association.

Orders