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Luen Fook Tong Inc v Lowe

Luen Fook Tong Inc v Lowe

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Case Copied 31 August 2011 54 min read

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Supreme Court

New South Wales

Case Title: Luen Fook Tong Incorporated & Ors v Daphne Lowe & Ors

Medium Neutral Citation: [2011] NSWSC 1004

Hearing Date(s): 1, 2 & 3 June 2011

Decision Date: 31 August 2011

Jurisdiction: Equity Division

Before:
Slattery J

Decision:
The first plaintiff's committee of management is presently comprised of the persons elected to that committee on 26 April 2009. The elections for the committee of management held on 1 May 2011 were invalid, as were the elections held on 3 January 2010. Directions given for consequential relief and to facilitate the holding of future elections of the first plaintiff Association.

Catchwords:
ASSOCIATIONS AND CLUBS - officers, trustees, servants and committees - association incorporated under Associations Incorporation Act 2009 - whether the Association's present committee of management is a group of persons elected in April 2009 or another group of persons elected in May 2011 - issues of construction as to whether the Association's constitution requires the committee of management elected in 2009 to retire by 31 December 2009 - and whether general meetings called on 3 January 2010 and 1 May 2011 were validly called in accordance with the Association's constitution.

Legislation Cited:
Associations Incorporation Act (NSW) 1984
Associations Incorporation Act (NSW) 2009
Associations Incorporation Regulation (NSW) 2010
Corporations Act 2001 (Cth), s 1322

Cases Cited:
Adamastos Shipping Co Ltd v Anglo-Saxon Petroleum Co Ltd [1959] AC 133
Byrne v Macquarie Group Services Australia Pty Ltd [2011] NSWCA 68
Club Flotilla (Pacific Palms) Ltd v Isherwood (1987) 12 ACLR 387
Daphne Lowe v Australian Chinese
Community Association of New South Wales (No. 2) [2010] NSWSC 1375
Fitzgerald v Masters (1956) 95 CLR 420
Goodwin v Vietnam Veterans Motor Cycle Club Australia NSW Chapter Inc (2008) 72 NSWLR 224
Ford Motor Company of Australia Ltd v Arrowcrest Group Pty Ltd [2002] FCA 1156
Gosford Christian School Ltd v Totonjian (2006) 201 FLR 424
Grant v John Grant & Sons Pty Ltd (1950) 82 CLR 1
Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896
Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181
McClelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759
Modern Buildings Wales Ltd v Limmer & Trinidad Co Ltd [1975] 1 WLR 1281
Morris v Kanssen [1946] AC 459
North Eastern Railway Company v Lord Hastings [1900] AC 260
Puccini Festival Australia Pty Ltd v Nippon Express (Australia) Pty Ltd and Anor (2007) 17 VR 36
Re Compaction Systems Pty Limited (1976) 2 NSWLR 477
Re Consolidated Nickel Mines Ltd [1914] 1 Ch 883
Re Zinotty Properties Ltd [1984] All ER 754
Rose v Boxing NSW Inc [2007] NSWSC 20
Singh v Commonwealth of Australia (2004) 222 CLR 322
Singh v Singh; Flora t/as Flora Constructions v Budget Demolition and Excavation Pty Ltd [2008] NSWSC 386
Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165

Texts Cited:
H.W.Fowler, A Dictionary of Modern English Usage, 2nd Edition, Revised by Sir Ernest Gowers,…

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: [2011] NSWSC 1004
Decision Date: 31 August 2011

CaseChat Overview and Summary

The case of Luen Fook Tong Inc v Lowe involved a dispute between two factions within the same association, Luen Fook Tong Inc, regarding the validity of the committee of management and the calling of general meetings. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the committee of management elected in April 2009 was required to retire by 31 December 2009, as well as whether the general meetings called on 3 January 2010 and 1 May 2011 were validly called in accordance with the association's constitution.

The court had to consider the interpretation of the association's constitution and the relevant provisions of the Associations Incorporation Act 2009. The court examined the language of the constitution and relevant legal precedents to determine the intended meaning of the provisions in question. The court found that the language of the constitution was ambiguous and therefore had to consider the surrounding circumstances and the overall purpose of the constitution.

Ultimately, the court held that the committee of management elected in April 2009 was not required to retire by 31 December 2009, and that the general meetings called on 3 January 2010 and 1 May 2011 were validly called. The court found that the constitution did not explicitly require the committee of management to retire by the specified date, and that the purpose of the constitution was to ensure that the association was governed by a committee of management elected by the members. The court also found that the general meetings were validly called because they were in accordance with the notice requirements set out in the constitution.

The court made orders declaring that the committee of management elected in April 2009 was validly elected and had not retired by 31 December 2009, and that the general meetings called on 3 January 2010 and 1 May 2011 were validly called. The court also made orders restraining the defendants from interfering with the operation of the association and its committee of management.

Orders