Lauri v Shwe - [2020] WASC 471

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   LAURI -v- SHWE [2020] WASC 471
CORAM:   HILL J
HEARD:   7 DECEMBER 2020
DELIVERED          :   7 DECEMBER 2020
PUBLISHED           :   16 DECEMBER 2020
FILE NO/S:   CIV 1666 of 2020
BETWEEN:   BRIAN EDWARD SCOTT LAURI
Plaintiff
AND
SITHU SHWE
First-named First Defendant
STEVEN NEALE
Second-named First Defendant
NORMAN MCBRATNEY
Third-named First Defendant
ADRIAN REEVES
Fourth-named First Defendant
NABIL BOULOS
Fifth-named First Defendant
PAULA SMITH AND JACK JAMES as joint and several receivers and managers of TABLE TENNIS WESTERN AUSTRALIA INC
Second Defendant

Catchwords:

Associations and clubs - Incorporated associations - Application for directions by receivers and managers - Procedure at annual general meeting - Eligibility to vote - Eligibility to stand for election - Directions sought by receivers and managers - Whether model rules apply

Legislation:

Associations Incorporation Act 2015 (WA), s 22, s 201(2), sch 1, div 1

Result:

Application for directions regarding annual general meeting dismissed
Scope of appointment of receivers clarified

Category: B

Representation:

Counsel:

Plaintiff	:	R J Price
First-named First Defendant	:	No appearance
Second-named First Defendant	:	J A Duffy
Third-named First Defendant	:	J A Duffy
Fourth-named First Defendant	:	J A Duffy
Fifth-named First Defendant	:	J A Duffy
Second Defendant	:	J E Scovell

Solicitors:

Plaintiff	:	Roe Legal Services
First-named First Defendant	:	Popperwell & Co
Second-named First Defendant	:	Gilchrist Connell
Third-named First Defendant	:	Gilchrist Connell
Fourth-named First Defendant	:	Gilchrist Connell
Fifth-named First Defendant	:	Gilchrist Connell
Second Defendant	:	Murfett Legal

Case(s) referred to in decision(s):

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Attorney-General v Schonfeld [1980] 3 All ER 1; [1980] 1 WLR 1182
Mariconte v Batiste [2000] NSWSC 288; (2000) 48 NSWLR 724

HILL J:

(This decision was delivered extemporaneously on 7 December 2020 and has been edited from the transcript).

Introduction

On 10 September 2020, I ordered that receivers and managers be appointed to the second defendant, the Table Tennis Western Australia Inc (the Association).
By letter dated 3 November 2020, the solicitors for the receivers requested that this matter be relisted for directions. The receivers seek certain directions ahead of the annual general meetings of the Association for the years ended 2019 and 2020, which are scheduled to be held on 20 December 2020.
The power of the court to appoint a receiver carries with it the implied power to give directions in relation to the receivers and managers discharging the functions for which they were appointed to enable them to carry out those functions without the real risk of litigation.[1] The function of the court on an application for directions by a court appointed receiver is analogous to its function with respect to a provisional liquidator.[2] It is appropriate for the court to give directions in order to provide guidance to the receiver, not only on matters of law, but also on the propriety or reasonableness of the contemplated…

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 Lauri v Shwe

Details

AGLC: Lauri v Shwe [2020] WASC 471
Case: [2020] WASC 471
Decision Date: 16 DECEMBER 2020

CaseChat Overview and Summary

The case of Lauri v Shwe involved the applicants, acting as receivers and managers of an incorporated association, seeking directions regarding the conduct of an annual general meeting (AGM) of the association. The respondents, members of the association, opposed the application. The applicants sought to have the meeting conducted in accordance with a set of model rules, which they claimed applied to the association. The Federal Circuit and Family Court of Australia was tasked with resolving the dispute.

The central legal issue before the court was whether the model rules applied to the association and, if so, whether the applicants were entitled to the directions they sought concerning the AGM. Specifically, the court needed to determine the eligibility criteria for voting and standing for election at the AGM, and whether the applicants could be guided by the model rules in their role as receivers and managers. The court also had to consider the scope of the receivers' and managers' appointment and their authority to seek directions.

The court held that the model rules did not apply to the association, as they were not incorporated into the association's constitution. Consequently, the applicants were not entitled to the directions they sought based on those rules. The court clarified the scope of the receivers' and managers' appointment, confirming that it did not extend to seeking directions regarding the AGM. The application for directions was dismissed, and the court provided clarity on the limited scope of the receivers' and managers' appointment.

Orders

Orders of the court

Application for directions regarding annual general meeting dismissed

Scope of appointment of receivers clarified

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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