Nyunbuk Moorit Booja Aboriginal Co, Re

[2008] QSC 60

SUPREME COURT OF QUEENSLAND

CITATION:

Re Nyunbuk Moorit Booja Aboriginal Corp [2008] QSC 60

PARTIES:

PETER ARMSTRONG AS DELEGATE OF THE REGISTRAR OF ABORIGINAL AND TORRES STRAIT ISLANDER CORPORATIONS
(applicant)
v
NYUNBUK MOORIT BOOJA ABORIGINAL CORPORATION
(respondent)

FILE NO/S:

SC No 11268 of 2007

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 April 2008

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2008

JUDGES:

Mackenzie J

ORDER:

1.   Nyunbuk Moorit Booja Aboriginal Corporation be wound up;

2.   Brian Keith McMaster and Jack James of KordaMentha, Level 11, 37 St George’s Terrace, Perth, Western Australia, official liquidators, be appointed jointly and severally to act as official liquidators of the respondent.

CATCHWORDS:

ABORIGINALS – ABORIGINAL CORPORATIONS – where Aboriginal corporation failed to comply with a notice under s 439-20 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) to rectify non-compliance with the Act – where time for compliance with notice extended – where information and documentation required by notice not supplied – where Aboriginal corporation failed to lodge financial records – whether Aboriginal corporation should be wound-up – whether just and equitable to wind up – whether in public interest to wind up

Aboriginal Councils and Associations Act 1976 (Cth), s 60
Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), s 26-5, s 439-20, s 526-5(j), s 526-5(k),
s 526-5(m), s 526(5)(n), s 526-15, s 526-35
Corporations Act 2001 (Cth)

Australian Securities Commission v AS Nominees Ltd & Ample Funds Ltd (1995) 62 FCR 504, applied
Registrar of Aboriginal Corporations v Gundabooka Aboriginal Corporation [2002] FCA 1008, cited

COUNSEL:

G J Hamilton (sol) for the applicant
M Rinaudo Lewis (sol) for the respondent

SOLICITORS:

Minter Ellison for the applicant
Aboriginal and Torres Strait Islander Legal Service (Queensland South) for the respondent

1. MACKENZIE J:   

   This is an application to wind up an Aboriginal Corporation originally incorporated under the Aboriginal Corporations and Associations Act 1976 (Cth).  That Act was repealed by the Corporations (Aboriginal and Torres Strait Islander) Consequential, Transitional and Other Measures Act 2006 (Cth), which was itself replaced by the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (“the 2006 Act”).  In Part 11.5 of the last mentioned Act,

   
   

   s 26-5 sets out the grounds upon which an Aboriginal and Islander Corporation may be wound up. The Corporations Act 2001 (Cth) winding up provisions, with substitutions provided for in s 526-35, applies to the winding-up of such a corporation.

1. The applicant is the delegate of the Registrar of Aboriginal and Torres Strait Islander Corporations, who has standing to apply to wind up an Aboriginal corporation pursuant to s 526-15. Four grounds are relied on. The first is a failure to comply with a notice under s 439-20 (s526-5(j)). The second is a failure to lodge financial reports under the Act (s 526-5(k)). The third and fourth are concerned with issues of whether it is in the public interest that the respondent be wound up and it is just and equitable that it be wound-up (s 526-5(m) and (n)).

1. By way of factual background, on 7 March 2007, KordaMentha, Chartered Accountants, were engaged to conduct an examination of the corporation under s 60 of the Aboriginal Councils and Associations Act 1976 (Cth). The report was finalised on 25 May 2007. It identified a large number of breaches of the Act and/or rules by the corporation.

1. Amongst other things, there were difficulties in connection with identifying membership, the holding of Annual General Meetings over a number of years, the holding of committee meetings and the absence of accounts and records. 

1. Consequent on that report, the Registrar’s delegate served a notice pursuant to

   
   

   s 439-20 of the 2006 Act in which the identified non-compliance was itemised. The committee of the respondent was required to take action within specified time frames to rectify the non-compliance with the Act and rules and to rectify irregularities in the financial affairs of the corporation.

1. A register of members, complying with the Act, was required by 31 August 2007.  It was to be accompanied by copies of all membership application forms and evidence that approvals of new membership and expulsions had occurred in compliance with the rules.  Written financial records for financial years 30 June 2004 to 2007 were required to be prepared by 14 September 2007.  A committee meeting was to be convened by 31 July 2007 to pass resolutions the effect of which were that the committee members acknowledged their obligations under the Act.  A copy of the minutes of such meeting was to be forwarded by 17 August 2007 to the Registrar.  Any minutes of subsequent meetings were also required to be forwarded to the Registrar. 

1. That notice was dated 6 July 2007.  On 8 August 2007, a letter was sent acknowledging that an Annual General Meeting had been scheduled and that steps would be taken to expel unfinancial members.  It was noted that this did not comply with the deadline set out in the notice while acknowledging that a start on addressing the matters raised had been made.  The time for convening a committee meeting to pass the resolutions acknowledging the committee members’ obligations was extended to 17 August 2007.  The likelihood of initiation of action to wind-up the corporation’s affairs, if the notice was not complied with, was stressed. 

1. On 4 October 2007 the delegate wrote stating that he was of the view that there had been a failure to adequately address the requirements of the s 439-20 Notice. The letter referred to telephone contact between the secretary of the corporation and noted that the only relevant documentation forwarded had been handwritten lists of financial and unfinancial members as at June 2007 together with minutes of the

   
   

   10 July and 18 July 2007 committee meetings and a 17 August 2007 Annual General Meeting.  It was noted that there had been no indication in the documentation that the required resolutions concerning the obligations to comply with the Act and rules had been passed.  Verbal advice that action was currently under way to have an audit undertaken by an accounting firm was noted.  Attention was drawn to a number of matters that were still outstanding.  One of those was the absence of confirmation that written financial records were in place for the years 2004 to 2007. 

1. The letter concluded by saying that the failure to comply with the requirements of the s 439-20 Notice was a matter of serious concern. There was a requirement in quite peremptory terms to provide the delegate with all of the outstanding information and documentation by no later than close of business on Wednesday

   
   

   7 November 2007.  In the event of failure, action to wind-up the affairs of the corporation would be commenced. 

1. The correspondence in evidence indicates that the secretary of the corporation telephoned the applicant on 30 October 2007 asking for a further extension of time until 31 December 2007.  She professed that the committee could not fully understand what they were required to do.  No extension was granted.  On

   
   

   28 November 2007 the Winding-up Application was filed. 

1. On 16 January 2008, the return date, there was a Consent Order adjourning the matter to 6 February 2008 to allow the respondent a final opportunity to attend to the outstanding matters on the strict understanding that the adjournment provided the final opportunity for the respondent to comply with all outstanding issues in the notice.  According to a document exhibited to the affidavit of Mr Lugnan, a senior investigator with the Office of the Registrar, some documentation had been provided.  However, he was not satisfied that the membership records were reliable.  There was nothing to suggest that the resolutions acknowledging the obligation to comply with legislative requirements and requirements of the rules had been passed.  There had been no information provided to indicate that certain other issues had been addressed.  With regard to the financial records required, the only documentation forwarded consisted of membership receipts for the years 2004 to 2007.  No comprehensive financial records were provided. 

1. I am satisfied by the affidavit of Kasia Rudnicki that the application and the supporting affidavit of the applicant were duly served. It is only necessary for the applicant to make out any one of the grounds for winding-up. It is apparent from what has been said that, notwithstanding some attempts to provide information in compliance with the s 439-20 Notice, there remains a failure to comply with some of its requirements. The ground in s 526(j) is therefore established. It is clear beyond doubt that there has been a failure to lodge financial reports under the Act over a long period which results in the ground relating to s 526-5(k) being made out.

1. With regard to the third and fourth grounds, Finn J said in Australian Securities Commission v AS Nominees Ltd & Ample Funds Ltd (1995) 62 FCR 504 that, in relation to the just and equitable ground, relevant considerations include the public interest in a regulatory body securing compliance with the legislation it regulates, the question of whether there have been repeated breaches of the regulatory legislation, and the fact that a winding-up order is an appropriate expression of the lack of confidence in the conduct and management of the corporation, which sends a proper message to similar corporations. Finn J’s decision has been applied in relation to Aboriginal Corporations (Registrar of Aboriginal Corporations v Gundabooka Aboriginal Corporation [2002] FCA 1008, Tamberlin J). The same kind of considerations apply to winding-up in the public interest. In my view these grounds have also been made out.

1. The result is that it is appropriate to make an order that the respondent corporation be wound up.  It is ordered that:

1.          Nyunbuk Moorit Booja Aboriginal Corporation be wound up;

2.          Brian Keith McMaster and Jack James of KordaMentha, Level 11, 37 St Georges Terrace Perth, Western Australia, official liquidators, be appointed jointly and severally to act as official liquidators of the respondent.