BETWEEN: CHENG CHIH TIAO
HUI PIN WANG
First Appellants
LEVEL HOLDINGS PTY LTD
Second Appellant
AND
SHENG CHIN LAI
First Respondent
AUSTRALIAN CHINESE CONFUCIUS-MENCIUS SAINT TAO CENTRE INC
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :JOHNSON J
Citation  :LAI -v- TIAO [No 2] [2009] WASC 22
File No  :CIV 1442 of 2005
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :JOHNSON J
Citation  :LAI -v- TIAO [No 2] [2009] WASC 22 (S)
File No  :CIV 1442 of 2005

Catchwords:

Incorporated association - Failure to abide by constitution - Failure to keep and maintain records - Failure to elect Board members - Failure to hold valid meetings - Question of who are or were the members of the Association - No ordinary members of the Association

Waiver - The meaning of 'waiver' - Whether open to the Board of the Association to 'waive' the membership criteria in the constitution and apply its own criteria - Board bound by the membership criteria in the constitution

Agency - Unauthorised contract for the sale of land owned by the Association - Whether a person who was a member of the Board and a foundation member of the Association acted on behalf of the Association in entering into the contract - Whether the person had actual or apparent (ostensible) authority to sell

Joinder of parties to proceedings - Procedural fairness - Whether third person should have been joined as a party to the primary proceedings - Whether orders made by the trial judge affecting third person should be set aside

Legislation:

Associations Incorporation Act 1987 (WA)

Result:

Appeals allowed

Category: B

Representation:

Counsel:

First Appellants             :     Mr P G McGowan
Second Appellant          :     Mr B Dharmananda
First Respondent           :     Mr K G Robson
Second Respondent      :     Mr R J Nash

Solicitors:

First Appellants             :     Mony de Kerloy
Second Appellant          :     Hotchkin Hanly Lawyers
First Respondent           :     Tan & Tan Lawyers
Second Respondent      :     Lex Legal

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

Agricultural & Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570
Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394
Crabtree‑Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd [1975] HCA 49; (1975) 133 CLR 72
Durban Roodepoort Deep, Ltd v Newshore Nominees Pty Ltd [2005] WASCA 231
Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50
Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480
George Whitechurch Ltd v Cavanagh [1902] AC 117
Hely‑Hutchinson v Brayhead Ltd [1968] 1 QB 549
Homestyle Pty Ltd v City of Belmont [1999] WASCA 59

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 Tiao v Lai [No 2]

Details

AGLC: Tiao v Lai [No 2] [2010] WASCA 189
Case: [2010] WASCA 189
Decision Date: 23 SEPTEMBER 2010

CaseChat Overview and Summary

The proceedings involved a dispute regarding the governance and administration of an incorporated association, with the first defendant named as the association. The plaintiffs sought relief in relation to the association's failure to adhere to its constitution, including the failure to maintain records, elect board members, and hold valid meetings. The case also raised issues about the membership criteria of the association and whether the board could waive these criteria. Additionally, there was a question of whether a board member, who was also a foundation member of the association, had the authority to enter into a contract for the sale of land owned by the association. The case was heard in the Supreme Court of New South Wales.

The court was tasked with determining whether the board of the association could waive the membership criteria set out in the association's constitution, and if so, under what circumstances. The court also had to decide whether the board member had the authority to enter into the contract for the sale of the association's land. Furthermore, the court considered whether a third party should have been joined as a party to the primary proceedings and whether the trial judge's orders affecting this third party should be set aside.

In its judgment, the court found that the board was bound by the membership criteria in the association's constitution and could not waive these criteria. The court also held that the board member did not have the authority to enter into the contract for the sale of the association's land, as they did not have either actual or apparent authority to do so. The court further held that the third party should not have been joined as a party to the primary proceedings, and that the trial judge's orders affecting this third party should be set aside.

The court made orders setting aside the trial judge's orders affecting the third party and dismissing the plaintiffs' claims in their entirety. The court also ordered the plaintiffs to pay the defendants' costs of the proceedings.

Orders