McLean v McKinlay

Case [2004] WASC 2


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

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McLean v McKinlay [2004] WASC 2
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[2004] WASC 2
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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.

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Ratio Decidendi

Legal Principle Established

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