Pace v Murivki

[2018] WASC 296

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   PACE -v- MURIVKI [2018] WASC 296

CORAM:   LE MIERE J

HEARD:   14 SEPTEMBER 2018

DELIVERED          :   21 SEPTEMBER 2018

FILE NO/S:   CIV 2571 of 2018

BETWEEN:   CHARLES VINCENT PACE

Plaintiff

AND

MARTIN MURIVKI

First Defendant

MICHELLE MURIVKI

Second Defendant

BARRY SIMPSON

Third Defendant

KERRIE SMALLWOOD

Fourth Defendant

DAVID SMART

Fifth Defendant

EBEN NICKERSON

Sixth Defendant

DAN BALDWIN

Seventh Defendant

WESTERN AUSTRALIAN GROUP TRAINING SCHEME (INC)

Eighth Defendant

ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA

Ninth Defendant

Catchwords:

Procedure - Interlocutory orders - Declarations

Incorporated Association - Validity of resolutions passed at AGM - Validity of constitution and rules

Legislation:

Nil

Result:

Sought declarations made
Additional orders given

Category:    B

Representation:

Counsel:

Plaintiff	:	Ms E Luck
First Defendant	:	Mr C L Hollett
Second Defendant	:	Mr C L Hollett
Third Defendant	:	Mr C L Hollett
Fourth Defendant	:	Mr C L Hollett
Fifth Defendant	:	Mr C L Hollett
Sixth Defendant	:	Mr J A Robertson
Seventh Defendant	:	Mr C L Hollett
Eighth Defendant	:	No appearance
Ninth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Pragma Legal
First Defendant	:	Solomon Hollett Lawyers
Second Defendant	:	Solomon Hollett Lawyers
Third Defendant	:	Solomon Hollett Lawyers
Fourth Defendant	:	Solomon Hollett Lawyers
Fifth Defendant	:	Solomon Hollett Lawyers
Sixth Defendant	:	Williams & Hughes
Seventh Defendant	:	Solomon Hollett Lawyers
Eighth Defendant	:	No appearance
Ninth Defendant	:	No appearance

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

Nil

LE MIERE J:

The proceeding

1. This action concerns the affairs of the Western Australian Group Training Scheme Inc (the Association) which is the eighth defendant.  On 29 November 2017 the plaintiff was a member of the Association and a member and chairperson of its management committee.  The annual general meeting of the association took place on 29 November 2017.  At the meeting the plaintiff and five other persons were elected as the members of the management committee.  The constitution of the Association provides that members of the management committee shall hold office until the next following annual general meeting of the Association.

2. After the annual general meeting it was asserted by the Chief Executive Officer Mr Nickerson, who is the sixth defendant, that the constitution of the Association was amended at the annual general meeting.  It was subsequently asserted by the first to seventh defendants that as a result of things done pursuant to the amended constitution the plaintiff and the other members elected to the management committee at the 2017 annual general meeting had ceased to be members of the Association and members of its management committee.  The first to fifth defendants purported to be the new management committee.

3. On 6 September 2018 the plaintiff commenced this action in which he sought orders that the first to seventh defendants not act or purport to act as members of the management committee and not take any step or cause others to take any steps to prevent, hinder or frustrate the function of the management committee of the Association being carried out by the members elected at the 2017 AGM.  The plaintiff further sought declarations that the Association's 2015 constitution and rules are valid and binds the operations of the Association, that any resolution passed at the annual general meeting held on 29 November 2017 to amend or substitute the constitution is of no force and effect and that the persons elected to the management committee at the 2017 annual general meeting are the properly constituted and duly authorised management committee of the Association.

Interim order

1. On 7 September 2018 the plaintiff applied for urgent interlocutory orders.  I made interim orders restraining the first to seventh defendants from operating the Association's bank account, dealing with its property and from acting or purporting to act as members of the management committee, office holders or members of the Association.

Agreed orders

1. The matter came on for further hearing on 14 September 2018.  The parties had largely reached agreement on orders to resolve this action.  Two procedural orders were proposed to amend the names of defendants and for the ninth defendant, the Attorney General, to cease to be a party to the proceeding.  I will make those orders.

Declaration

1. The plaintiff moved for four declarations:

   (a)any resolution passed at the annual general meeting of the eighth defendant held on 29 November 2017 to amend or substitute the constitution of the eighth defendant dated 25 August 2015 (2015 Constitution) shall be of no force and effect;

   (b)the 2015 Constitution shall be valid and continue to bind the eighth defendant, its members and the operation of the eighth defendant until such time as the members of the eighth defendant shall resolve otherwise in accordance with the 2015 Constitution;

   (c)Charles Pace, Trish Arrigo, Janie Kremmer, Tania McGrath, Allan Vannart and Gerry Hanssen, being the management committee of the eighth defendant appointed at the annual general meeting of the eighth defendant held on 29 November 2017, are the properly constituted and duly authorised management committee of the eighth defendant with the right to properly exercise all duties and powers conferred on the management committee by the 2015 Constitution;

   (d)the authorised signatories of the eighth defendant's bank account shall be Charles Pace, Trish Arrigo and the CEO of the eighth defendant until the 2018 AGM of the eighth defendant is held.

2. At the hearing of this application the plaintiff did not press for a declaration in terms of (d).  The first to fifth and seventh defendants consented to the declarations sought.  The sixth defendant neither consented to nor opposed the declarations sought.

3. A declaration is a formal statement by the court pronouncing upon the existence or non‑existence of the legal state of affairs.  It does not create rights.  It follows that the court will not make a declaration unless it is satisfied that the existence or non‑existence of a state of affairs which it is asked to declare is established by the material before the court.

4. The material before the court satisfied me of the following matters.  The constitution and rules of the Association entitled 'Constitution and Rules 2015' were lodged and adopted by the requisite resolution of the Association and took effect upon being lodged with the Commissioner for Consumer Protection on 10 September 2015.  The constitution and rules of the Association have not been subsequently amended.  The proposed rules lodged with the Commissioner in January 2018 were not passed by a valid resolution of the Association.  Charles Pace, Trish Arrigo, Janie Kremmer, Tania McGrath, Allan Vannart and Gerry Hanssen were elected to the management committee at the Association's annual general meeting on 29 November 2017.  Those persons have not been removed as or ceased to be members of the management committee and have not ceased to be members of the Association.

5. It follows that the following declarations should be made:

   (a)no valid resolution to amend or substitute the rules and constitution of the Association was passed at its annual general meeting on 29 November 2017;

   (b)the 'Constitution and Rules 2015' as lodged in the office of the Commissioner for Consumer Protection on 10 September 2015 are the constitution and rules of the Association;

   (c)Charles Pace, Trish Arrigo, Janie Kremmer, Tanya McGrath, Allan Vannart and Gerry Hanssen were elected members of the management committee of the Association at its annual general meeting on 29 November 2017 and constitute the members of the management committee of the Association and will continue to constitute the management committee of the Association until they cease to be members or the composition of the management committee is altered in accordance with the constitution and rules of the Association.

Further orders

1. I will also make the following additional orders:

   4.The first, second, third, fourth and fifth defendants are restrained from:

   (a)making any withdrawal from, or otherwise accessing or operating, or causing others to make withdrawals from or otherwise accessing or operating the bank account which the eighth defendant holds with the Commonwealth Bank of Australia, or any other bank account maintained by the eighth defendant;

   (b)selling or otherwise disposing of, dealing with, diminishing in value or encumbering, or authorising any other person to dispose of, deal with, diminish in value or encumber, any asset or property of the eighth defendant;

   (c)acting or purporting to act as members of the management committee or office holders of the eighth defendant; and

   (d)acting or purporting to act as an ordinary member of the eighth defendant.

   5.The restraints contained in paragraphs 4(a), (b) and (c) shall continue to apply to each of the first, second, third, fourth and fifth defendants unless and until that defendant is elected or appointed an office holder of the eighth defendant pursuant to the constitution and rules of the Association.

   6.The restraints contained in paragraph 4(d) shall continue to apply to each of the first, second, third, fourth and fifth defendants unless and until that defendant applies and becomes a member of the eighth defendant in accordance with its constitution and rules.

   7.Until 26 November 2018 or further order the sixth defendant is restrained from:

   (a)making any withdrawal from, or otherwise accessing or operating, or causing others to make withdrawals from or otherwise accessing or operating the bank account which the eighth defendant holds with the Commonwealth Bank of Australia, or any other bank account maintained by the eighth defendant;

   (b)entering the premises of the eighth defendant at 59 Windsor Road, Wangara without the prior written approval of Trish Arrigo or the Vice-Chairperson of the eighth defendant for the time being;

   (c)removing or destroying documents or records of the eighth defendant or causing another person to do so.

   8.The first, second, third, fourth, fifth and seventh defendants shall do, sign and execute all documents and things as may reasonably be required so as to carry out and give effect to the terms of these orders effectively and to protect and preserve the rights of the eight defendant.

   9.Order 1 of the orders made by Justice Le Miere on 7 September 2018 are discharged as from the date of this order.

   10.The matter is adjourned to 26 November 2018 at 9.30 am.

   11.Costs of the plaintiff's interlocutory application are reserved.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

RK
ASSOCIATE TO THE HONOURABLE JUSTICE LE MIERE

21 SEPTEMBER 2018