Wybenga v Mandandanji Limited (Trustee) - [2014] FCA 861

FEDERAL COURT OF AUSTRALIA
Wybenga v Mandandanji Limited (Trustee) [2014] FCA 861

Citation: Wybenga v Mandandanji Limited (Trustee) [2014] FCA 861

Parties: VIVIEN WYBENGA v MANDANDANJI LIMITED AS TRUSTEE FOR THE MANDANDANJI CHARITABLE TRUST

File number: QUD 406 of 2014

Judge: LOGAN J

Date of judgment: 1 August 2014

Catchwords:
CORPORATIONS LAW – native title claimants eligible for membership of Mandandanji Company which administers a trust the beneficiary class of which is governed by those same eligibility requirements – company called general meeting to alter Company’s constitution to alter membership eligibility – interlocutory application to restrain company from holding the meeting on grounds of misleading explanatory statement and failing to provide information or resources to members about proposed changes to constitution

Held: Company restrained from holding the called for general meeting or any further general meeting until the application has been heard

Cases cited: Deveraux Holdings Pty Ltd v Pelsart Resources NL (1985) 4 ACLC 12 considered
Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 cited
Weribone on behalf of the Mandandanji People v State of Queensland (No 2) (2013) 302 ALR 64 cited
Weribone on behalf of the Mandandanji People v State of Queensland (No 3) [2013] FCA 662 considered
Weribone on behalf of the Mandandanji People v State of Queensland (No 4) [2013] FCA 758 cited

Date of hearing: 1 August 2014

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 39

Counsel for the Applicant: Mr AM Preston

Solicitor for the Applicant: Dowd & Company

Counsel for the Respondent: The Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 406 of 2014

BETWEEN:
VIVIEN WYBENGA
Applicant

AND:
MANDANDANJI LIMITED AS TRUSTEE FOR THE MANDANDANJI CHARITABLE TRUST
Respondent

JUDGE:

LOGAN J

DATE OF ORDER:

1 AUGUST 2014

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The Respondent is restrained from holding a general meeting at the Explorer’s Inn, Warrego Highway, Roma, Queensland, on 2 August 2014 at 10:00am to consider business outlined in the notice and meeting dated 7 July 2014 (the Business).
2.Until the hearing and final determination of the application or further earlier order, the Respondent is restrained from holding an adjourned meeting to consider the Business.
3.The application is adjourned for directions, on such date as the Court may appoint, which is to be no later than that presently appointed for directions in proceeding QUD 366 of 2008, namely 27 October 2014.

THE COURT DIRECTS THAT:
1.These orders are to be passed and entered forthwith.
2.These orders are to be communicated forthwith by email and if possible, by telephone, to Mr Michael Owens, the solicitor for the Respondent.
3.The solicitors for the Applicant are to furnish a copy of the orders to the proprietor of the Explorer’s Inn at Roma in conjunction with a request to the proprietor to draw them to the attention of any members of the Respondent who attend at the Explorer’s Inn on 2 August 2014.

Note:Entry…

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.

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Details

Case: [2014] FCA 861
Decision Date

CaseChat Overview and Summary

Vivien Wybenga, a director of Mandandanji Limited, brought an urgent application seeking to restrain the company from holding a general meeting to consider amending the definition of "Mandandanji community" and "claimant group" in the company's constitution. The proposed amendments would have changed the eligibility criteria for membership of the company, which acts as trustee for a charitable trust, potentially excluding certain members of the native title claim group. The meeting was scheduled to occur amidst ongoing litigation concerning the extent of the native title claim group, including whether it should include the descendants of Dolly Clark.

The legal issues before the court included whether the notice of the meeting was misleading and whether the company had breached its fiduciary duty to its members. Logan J concluded that there was a prima facie case that the notice of meeting was misleading and that the company had breached its fiduciary duty. The definition of "Mandandanji community" in the company's constitution is closely aligned with the definition in the trust deed, which the company administers. The proposed amendments could misalign these definitions and potentially exclude members of the native title claim group, contrary to the objects of the company and trust. Given the unresolved controversy over the composition of the native title claim group and the apparent intent of the meeting to place control in the hands of a particular sept of the Mandandanji, Logan J granted an injunction restraining the company from holding the meeting or any adjourned meeting until the application was determined.

Logan J also directed that the orders be communicated to the company's solicitor and that copies be provided to the proprietor of the meeting venue to be given to members attending the meeting. The application was adjourned for directions, to be no later than 27 October 2014, which was the date appointed for directions in the native title application. Logan J did not require an undertaking as to damages, given the serious implications of permitting the meeting to proceed.

Orders