Legal Research
Cases
Kopilovic v Gatley

Kopilovic v Gatley

Case [2005] WASC 62 22 April 2005

Contract Formation

Unconscionable Conduct

Membership Eligibility

Statutory Construction

Corporate Law

No judgment structure available for this case.

Type to search within this case.

KOPILOVIC & ORS -v- GATLEY & ORS [2005] WASC 62

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 62
Case No:	CIV:1593/2003	Heard:	15-17 MARCH 2004
Coram:	EM HEENAN J	Delivered:	22/04/05
No of pages:	38	Judgment Part:	1 of 1
Result:	Declaration that Constitution of April 2000 was effectively adopted by a special resolution validly passed at a general meeting of members
Category:	B
PDF Version

Parties:	PATRICIA LILANA KOPILOVIC JOHN GIARDINA DAMIEN CIRANNA JOHN ANTONACCI MARCIA FRAGIADAKIS VIVIAN SIMPSON AARON-LEE WILDE DEE JAMES DEBRA OFFER ANNE FARRAWELL NATHAN MAJOR HELEN MAJOR RAYMOND BUCKLEY SNEDDON CARMELO FRANCESCO RACCUIA DEREK FRANCIS GATLEY MARGARET ANN LONSDALE VINCENT RAYMOND BAIN JEFFREY ROBERT ELWORTHY CAROL KAY KIMMINS KATHRYN FRANCES WIGGINS TONY JOSEPH TILENNI ROBERT HENRY COURTS ROBERT JOHN STEELE MALCOLM LENNARD BATTY VINCENT SILVIO IOPPOLO EAMON MICHAEL McGRATH PETER SPENCER SMITH ORYST TKACZ DALLAS LESLIE WILLIAMS LEE GARTH WILTON DANCESPORT AUSTRALIA LTD (ACN 085 929 835)
Catchwords:	Corporations Company limited by guarantee Alteration of constitution Membership Whether applicants for membership became members on payment of application and guarantee moneys Associated unincorporated association Transmission of moneys from unincorporated association to corporation Continuation of affairs of unincorporated association while moneys held by corporation Refusal to register applicants for membership corporation until after change in constitution Identification of members of corporation entitled to vote on special resolution to alter constitution
Legislation:	Corporations Act (Cth) Corporations Law
Case References:	Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 Bothranch Pty Ltd v Monitronix Ltd (1999) 15 ACLC 35 Cotter v National Union of Seamen [1929] 2 Ch 58 Dalgety Downs Pastoral Co Pty Ltd v Federal Commissioner of Taxation (1952) 86 CLR 335 Edwards v Halliwell [1950] 2 All ER 1064 Federal Commissioner of Taxation v Angus (1961) 105 CLR 489 Federal Commissioner of Taxation v Patcorp Investments Ltd (1976) 140 CLR 247 Foss v Harbottle (1843) 2 Hare 461; 67 ER 189 Harben v Phillips (1883) 23 Ch D 14 Jalmoon Pty Ltd (In Liq) v Bow [1997] 2 Qd R 62 Kingston v Keprose Pty Ltd (No 3) (1987) 11 NSWLR 404 Millar & Ors v Houghton Table Tennis & Sports Club Inc [2003] SASC 1 NSW Henry George Foundation v Booth (2002) 54 NSWLR 433 Oatmont Pty Ltd v Australian Agricultural Co Ltd (1991) 5 ACSR 75 Peninsula Gold Pty Ltd v Sunbeam Victa Holdings Ltd (1996) 20 ACSR 553 Re Renown Rubber Ltd [1933] St R Qd 324 Solicitor-General v Wylde (1945) 46 SR (NSW) 83 Spitzel v Chinese Corporation Ltd (1899) 80 LT 347 Stevens v Keogh (1946) 72 CLR 1 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Aloridge Pty Ltd (provisional Liquidator appointed) v WA Gem Explorers Pty Ltd (In Liq) (1996) 22 ACSR 484 Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399; 132 ALR 1; 69 ALJR 890; 13 ACLC 1,698 Brian v Judo Federation of Australia (Qld) Ltd (1994) 15 ACSR 708 Carlton…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Kopilovic v Gatley

Details

AGLC: Kopilovic v Gatley [2005] WASC 62
Case: [2005] WASC 62
Decision Date

CaseChat Overview and Summary

The case of Kopilovic v Gatley involved a dispute over the constitution of Dancesport Australia Ltd, a company limited by guarantee. The plaintiffs, who claimed to be members of the company, sought a declaration that the original constitution of the company, dated February 1999, remained valid and effective. They also sought to invalidate a new constitution that had been adopted by the company in April 2000, and to remove the current board of directors from office. The defendants, including the current board of directors and other office bearers of the company, argued that the April 2000 constitution was validly adopted and that the plaintiffs were not members of the company before that date. The court found that the April 2000 constitution was validly adopted and that the plaintiffs had not become members of the company before that date. The court also found that the appointments of directors and other office bearers made in accordance with the April 2000 constitution were valid, and that there was no basis to remove the current directors from office. The court declined to grant any injunctive relief or to order the defendants to repay legal fees to the company. The court also declined to make any orders in relation to the attempted amendments to the constitution in November 2000 and April 2001, as the defendants had conceded that those resolutions had not effectuated any changes to the constitution. The court concluded that the remaining issues between the parties should be resolved by the members of the company at a properly conducted general meeting.

Orders