Macquarie University & Anor v Macquarie University Students' Council Incorporated - [2007] NSWSC 510

CITATION: Macquarie University & Anor v Macquarie University Students' Council Incorporated [2007] NSWSC 510

HEARING DATE(S): 17/05/07

JURISDICTION: Equity Division

JUDGMENT OF: Einstein J

EX TEMPORE JUDGMENT DATE: 17 May 2007

DECISION: Orders made pursuant to section 51 (1) (c) and (j) of the Associations Incorporation Act 1984 that Macquarie University Students' Council Inc be wound up and appointing a liquidator with all the powers specified in section 477 of the Corporations Act 2001 (Commonwealth).

CATCHWORDS: Corporations - Winding up of Macquarie University Students' Council Incorporated - Incorporated Association under the Associations Incorporation Act 1984 (NSW) - Students' Council no longer viable - Students' Council unable to pay its debts - Just and equitable grounds for Students' Council to be wound up

LEGISLATION CITED: Associations Incorporation Act 1984 (NSW)
Corporations Act 2001 (Cth)
Higher Education Support Amendment (Abolition of Compulsory Up-front Student Union Fees) Act 2005 (Cth)

PARTIES: Macquarie University (First Plaintiff)
Brian John Spencer (Second Plaintiff)
Venues At Macquarie Pty Ltd [provisional liquidator appointed] (Third Plaintiff)
Macquarie University Students' Council Incorporated (Defendant)

FILE NUMBER(S): SC 2630/07

COUNSEL: Mr M R Aldridge SC, Ms Shepard (Plaintiffs)
Mr S Brown (Defendant)

SOLICITORS:
Addisons (Plaintiffs)
Etienne Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Einstein J

Thursday 17 May 2007 ex tempore
Revised 18 May 2007

2630/07 Macquarie University & Anor v Macquarie University Students’ Council Incorporated

JUDGMENT

1 There is before the Court an application brought by Macquarie University, the Vice Principal of the University and Venues At Macquarie Pty Limited [provisional liquidator appointed] [“Venues”] for the following relief:

· An order that pursuant to section 51(1)(c) and (j) of the Associations Incorporation Act 1984 (NSW), Macquarie University Students’ Council Incorporated [“MUSC”], be wound up.

· An order pursuant to section 51(3) of the Associations Incorporation Act 1984 (NSW) Part 5.7 and section 471 of the Corporations Act 2001 (Cth) Mr Trevor Mark Pogroske be appointed as liquidator of MUSC with all the powers specified in section 477 of the Corporations Act 2001.

· An order that the costs of the plaintiffs' and the defendant's reasonable legal costs of the application be costs in the winding up.

[An order was made joining Venues At Macquarie Pty Limited (provisional liquidator appointed) as the third plaintiff.]

2 MUSC is an incorporated association under the Associations Incorporation Act 1984 (NSW).

3 The objects of the MUSC as identified in its constitution are as follows:

· to serve and promote the interest and welfare of Undergraduate Students and SIBT Students;

· to provide a recognised means of communication between Undergraduate Students and SIBT Students and the University authorities;

· to represent Undergraduate Students and SIBT Students in University matters affecting their interests and to promote student participation in the consideration of such matters;

· to represent or arrange for the representation of any Undergraduate Student or SIBT Students, or group of Undergraduate Students or SIBT Students before any formal University authority (provided that they agree to be so…

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: Macquarie University v Macquarie University Students' Council Incorporated [2007] NSWSC 510
Case: [2007] NSWSC 510
Decision Date: 17 May 2007

CaseChat Overview and Summary

In the matter of Macquarie University and Macquarie University Students' Council Incorporated, the dispute centred on the winding up of the Students' Council under the Associations Incorporation Act 1984 (NSW). Macquarie University sought the winding up of the Students' Council due to its inability to meet its financial obligations. The Council argued that the application was not just and equitable. The case was heard in the Supreme Court of New South Wales.

The legal issues that the court had to determine were whether the Students' Council was no longer viable and whether the application for winding up was just and equitable. The viability of the Students' Council was assessed based on its ability to function effectively and meet its financial obligations. The just and equitable principle required consideration of whether it was just and equitable to wind up the Students' Council given the circumstances.

The court found that the Students' Council was no longer viable as it could not pay its debts and was unable to function effectively. The court held that the application for winding up was just and equitable. The court considered various factors, including the Students' Council's inability to meet its financial obligations, the lack of membership, and the lack of support from the student body. The court concluded that the winding up of the Students' Council was in the best interests of the association and its members.

The court ordered that the Macquarie University Students' Council Incorporated be wound up and that a liquidator be appointed. The court also directed the liquidator to realise the assets of the Students' Council and distribute the proceeds according to law. The decision highlighted the importance of the just and equitable principle in determining whether an incorporated association should be wound up.

Orders