Case: Collingridge v Santor Pty Ltd (1997) 141 FLR 440
Outcome: considered
Reliance was also placed by the plaintiff upon the authority of Young J in Collingridge v Sontor Pty Ltd (1997) 141 FLR 440, particularly the passage at 445. I do not consider this case assists the plaintiff. Again, that case was dealing with a situation of an arrangement being entered into without a special resolution and it was held to be null and void. Reliance was placed, however, I think by way of analogy and by way of principle, upon a passage where Young J said: However, it is clear that the deed could not be consummated without the memorandum or articles of association being altered so as to include material which would exempt the scheme from being a reduction of capital because of s 195(13) of the Corporations Law . 17 In my view this is not the situation confronting me. The Acquisition Deed could well be consummated without any change of name (for example), although the consequences of a failure to do so, that is failing to change the name, may impact adversely upon the Company. I do observe that there is the opportunity for the Royal Automobile Club of Victoria Ltd ('RACV') to terminate the arrangements in circumstances where the change of name does not occur, at least as the arrangements are currently drafted. But, in any event, even if I am wrong as to this analysis, in my view the decision of Young J does not deal with the point I need to decide, namely whether there is a requirement for a special resolution in this case. 18 The position remains that there is no requirement in the articles of association, or the Act, that necessitates the use of a special resolution procedure in this case, nor has any other reason been shown for such a procedure to be adopted. 19 I mention some other matters raised by the plaintiff for completeness. The plaintiff referred to the proposed arrangements conferring unequal benefits upon members, and reference was made to arts 4 and 20 of the articles of association. The benefits proposed to be conferred by the arrangements are benefits to be conferred by membership of the new association operated by the RACV; they are not benefits conferred under the articles of association of the existing entity, namely the Company. In my view, arts 4 and 20 have no application to the circumstances of this case. 20 Secondly, I observe that the objective of the proposal is to preserve and improve golfing facilities for members of the Company. To the extent that this is a matter which is relevant for determination, I do not accept that the proposal is inconsistent with the objects of the Company set out in para 2 of the memorandum of association. There is the promotion of the game of golf, and the provision of links and grounds at Torquay, which do not necessarily need to involve the ownership of the land. 21 It was also suggested that the implementation of the proposal will involve a contravention of para 8 of the memorandum of association and art 67 of the articles of association. However, it is to be observed that each of those provisions is predicated upon there being a "winding up or dissolution" of the Company. The proposal is not one for the winding up of the Company or its dissolution, although this is contemplated to occur in due course. Paragraph 8 of the memorandum and art 67 of the articles will operate according to the terms upon a winding up or dissolution when that occurs. 22 Finally, considerations of policy were adverted to by the plaintiff, which may impact upon other questions that could arise out of these circumstances, but not upon the sole issue which I have been asked to decide. 23 In these circumstances I propose to order that the application be dismissed. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 14 June 2007 Counsel for the Applicant: P Bravender-Coyle Solicitor for the Applicant: Wightons Lawyers Counsel for the Respondent: J G Santamaria QC with C R Northrop Solicitor for the Respondent: Harwood Andrews Lawyers Date of Hearing: 22 and 23 May 2007 Date of Judgment: 23 May 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/911.html