Case: In Re K.L. Tractors Ltd [1961] HCA 8 ; (1961) 106 CLR 318
Outcome: cited
rule continued to apply to other incorporated associations. At least in respect of partially executed contracts, the absence of power may not have precluded their enforcement: In Re K.L. Tractors Ltd [1961] HCA 8 ; (1961) 106 CLR 318. That is not this case. There may also be circumstances where, notwithstanding that the corporation has acted ultra vires, relief may be available: see Ford's Principles of Corporations Law (Butterworths Looseleaf Service) at [12,060]. However, the rule was in any event ameliorated by provisions similar to that in the Corporations Act 2001 (Cth) in most, if not all, of the States' Associations Incorporation Acts: see s 17 Associations Incorporation Act 1981 (Vic); s 26 Associations Incorporation Act 1981 (Qld); s 27 Associations Incorporation Act 1985 (SA). There was no such provision in the Associations Incorporation Ordinance 1963 (NT) or in the Associations Incorporation Act 1978 (NT). Those enactments were repealed and replaced by the Associations Act (NT), enacted in 2003. There is also no such provision in the Associations Act (NT). Part 6 of the Associations Act (NT) deals with the transfer of property of an incorporated non-trading association. Each of the Housing Associations is not permitted to trade: Item 1.5 of the Schedule to their Constitutions. Section 54 Associations Act (NT) permits the transfer of real property by one association only to another body formed for promoting objects similar to its own or charitable objects, or to a council for the area in which the property is situated. That section also imposes procedural requirements. It is not necessary to refer to them. It is not suggested the grant of the proposed subleases is authorised by s 54 independently of the Constitutions of the Housing Associations. Nor, on the other hand, is it suggested that the grant of the proposed subleases is unlawful so as to prevent the Housing Associations from agreeing to enter into them. Section 54 is expressly subject to s 110. Section 110(2) restricts a Housing Association from disposing of, or charging, prescribed property, which appears to include a lease under the SPL Act or the CL Act (see the definition of prescribed property in s 4), except with the consent of the Minister administering that Act (and, by the NTNER Act, that would include the Minister) without the Minister's consent. It is also not necessary to further discuss those provisions as they were not relied upon, or referred to, either by the Residents or by any of the respondents, as informing the proper construction of the Constitutions of the Housing Associations either to grant or not to grant the proposed subleases. There is no doubt good reason for that. The CATSI Act does have a provision similar to that in s 125 of the Corporations Act 2001 (Cth). Section 96.1 relevantly provides: (1) An Aboriginal and Torres Strait Islander corporation has the legal capacity and powers of an individual within and outside Australia. (2) An Aboriginal and Torres Strait Islander corporation also has all the powers of a body corporate, including the power to, if the corporation's constitution permits, distribute any of the corporation's property among the members, in kind or otherwise. (3) An Aboriginal and Torres Strait Islander corporation's legal capacity to do something is not affected by the fact that the corporation's interests are not, or would not be, served by doing it.