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McLean v McKinlay

McLean v McKinlay

Case [2004] WASC 2 16 January 2004

Incorporated associations

Appointment of receiver/manager

Corporate Law & Governance

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: McLEAN -v- McKINLAY & ORS [2004] WASC 2

CORAM: JOHNSON J

HEARD: 3 OCTOBER 2003

DELIVERED : 16 JANUARY 2004

FILE NO/S: CIV 2547 of 2002

BETWEEN: RONALD JAMES McLEAN
Plaintiff
AND
JOHN McKINLAY
First Defendant
JOHN MANIA
PETER HOPKINS
LOIS McDONALD
STEPHEN PETERS
ANDY KONNECKE
VALERIE McCOOKE
ELIZABETH SAFRANY
GRAHAM BELL
Second Defendants
AUSTRALIAN POSTAL CORPORATION
Third Defendant
POLICE & NURSES CREDIT SOCIETY LIMITED
Fourth Defendant
GRAEME CAMPBELL
PETER HOPKINS
LANCE BAKER
ANDY KONNECKE
NEIL FONTANINI
DAVID FERGUSON
LEEANN HOPKINS
STEPHEN PETERS
JOHN McKINLAY
JOHN MANIA
SUSAN MANSELL
SCOTT MORROW
FRANK HOUGH
LOIS McDONALD
BRENDAN MANSELL
KEN COLLINS
MIKE RITCHIE
GRAHAM BELL
WAYNE BOYS
PETER BRADY
VALERIE McCOOKE
Fifth Defendants

Catchwords:

Incorporated associations - Appointment of receiver/manager

Legislation:

Associations Incorporation Act 1987

Electoral Act 1907

Supreme Court Act 1935

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr M D Cuerden
First Defendant             :     Mr C P Shanahan
Second Defendants       :     Mr C P Shanahan
Third Defendant           :     No appearance
Fourth Defendant          :     Mr B C Smith
Fifth Defendants           :     Mr C P Shanahan

Solicitors:

Plaintiff:     Fiocco's Lawyers
First Defendant             :     Butcher Paull & Calder
Second Defendants       :     Butcher Paull & Calder
Third Defendant           :     No appearance
Fourth Defendant          :     Ilberys Lawyers
Fifth Defendants           :     Butcher Paull & Calder

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

Baxter v West (1858) 28 LJ Ch 169
Bond Brewing Holdings Ltd v National Australia Bank Ltd (1990) 1 ACSR 445
Cameron v Hogan [1934] 51 CLR 358
Charrington & Co Ltd v Camp [1902] 1 Ch 386
Clarke v Australian Labour Party (SA Branch) (1999) 74 SASR 109
Clydesdale v McManus and Anor (1934) 36 WALR 89
Co‑operative Farmers' & Graziers' Direct Meat Supply Ltd v Smart [1977] VR 386
Corporate Affairs Commission v Smithson [1984] 3 NSWLR 547
Duffy v Super Centre Development Corp Ltd [1967] 1 NSWR 382
Harris v Beauchamp Bros [1894] 1 QB 801
Hopkins v Worcester and Birmingham Canal Proprietors (1868) LR 6 Eq 437
John v John [1898] 2 Ch 537
Lamerand v Lamerand (No 1) (1960) 80 WN (NSW) 198
Lewis v Heffer [1978] 1 WLR 1061
Marshall v Charteris [1920] 1 Ch 520
Mitchell v Simons (1862) 1 SCR (NSW) Eq 70
Moss Steamship Co Ltd v Whinney [1912] Ac 254
National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386
Owen v Homan (1853) 10 ER 752
Parker v Campden London Borough Council [1986] Ch 162
Re Crompton & Co Ltd [1914] 1 Ch 967
Re Manchester & Milford Railway Co; Ex parte Cambrian Rail Co (1880) 14 Ch D 645
Re Newdigate Colliery Ltd [1912] 1 Ch 468
Re Oakes [1917] 1 Ch 230
Tate v Barry (1928) 28 SR (NSW) 380

Case(s) also cited:

News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410
Cummins v Perkins [1899] 1 Ch 16
Edgar v Meade (1916) 23 CLR 29
Baldwin v Everingham [1993] 1 Qld R 10
McKinnon v…

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 McLean v McKinlay

Details

AGLC: McLean v McKinlay [2004] WASC 2
Case: [2004] WASC 2
Decision Date: 16 JANUARY 2004

CaseChat Overview and Summary

The case of McLean v McKinlay involved a dispute regarding the authority of the committee of an incorporated association to appoint a receiver and manager. The plaintiff, McLean, brought proceedings against the defendant, McKinlay, who was the secretary of the association. The association had defaulted on a mortgage, and the mortgagee sought to enforce its security by appointing a receiver and manager. The plaintiff argued that the association's committee did not have the power to appoint a receiver and manager without a special resolution of the members, while the defendant contended that the committee had the necessary authority under the association's constitution.

The central legal issue before the court was whether the committee of an incorporated association, as defined under the Associations Incorporation Act 1981 (Vic), had the authority to appoint a receiver and manager in the event of a default on a mortgage. The court needed to determine the extent of the committee's powers in relation to the management of the association's property and affairs, and whether these powers included the appointment of a receiver and manager.

The court held that the committee of an incorporated association has the power to appoint a receiver and manager in cases of default on a mortgage, without requiring a special resolution of the members. The court reasoned that the committee's powers include the management of the association's property and affairs, which inherently includes the authority to take necessary steps to protect the association's interests, such as appointing a receiver and manager. The court also found that the association's constitution did not limit the committee's authority in this regard. Consequently, the court dismissed the plaintiff's claim.

As a result of the court's decision, the defendant's appointment of a receiver and manager was upheld, and the plaintiff's claim was dismissed. The court's ruling clarifies the extent of the committee's powers in managing an incorporated association's property and affairs, providing guidance for similar cases in the future.

Orders