Q. And against?
A. None."
26 One of the other persons said to have been present on the 7 July 2005 meeting, Mr Lieschke, gave affidavit evidence but was not cross-examined. He did not refer to the holding of the 2005 annual general meeting of Centre. There was no evidence from Mr Curtis, the third person said to have been present.
27 With Mr Warren's evidence as it is, and that evidence being the only evidence on the subject (apart from the Form 388), I cannot find that an annual general meeting of Centre took place on 7 July 2005 or on any other day in 2005. To the extent that the Form 388 referred to 26 May 2005 as the date of the annual general meeting, it simply cannot be relied upon since it was, it appears, signed by Mr Barrett two days earlier on 24 May 2005. The most it could conceivably be seen to do is to indicate an intention, existing at 24 May 2005, that the annual general meeting be held on 26 May 2005. There is nothing to show that any such intention, if it existed, was implemented.
28 That leaves Mr Warren's oral evidence. He began by saying (see paragraph [20] above) that he had a recollection of an annual general meeting. Before saying that, however, he paused and said, "I am pausing there because there were so many meetings". He then said, in the same answer, that he "wouldn't like to say" that he had "a clear recollection of that in the sense I can remember sitting down and doing X, Y and Z". He then said again that he recalled the annual general meeting and supported that by reference to what I took to be a common practice, that is, that "they are fairly short affairs and we follow through the agenda". He concluded by saying, "I think I can say I recollect we had an annual general meeting" [emphasis added].
29 Later, Mr Warren again stated that he had a recollection of the particular annual general meeting (see paragraph [21] above). He professed a recollection that Mr Lieschke, Mr Curtis and he were present and that, while no written consent to short notice was signed beforehand, the short notice proposal was agreed to at the meeting, noting that "the same sort of thing happened" at other meetings. There was thus again resort to common practice.
30 Coming to the matter of election of directors, Mr Warren said, in relation to the supposed meeting of 7 July 2005, that he had "no direct recollection" of that having occurred, but "I know it happened" (see paragraph [24] above). Then, when asked whether he had a recollection of his having been re-elected as chairman, he said unequivocally, "Yes". He could not remember who moved the motion but said that everyone voted. Next, when asked about appointment of auditors, he was content to fall back on the content of the supposed agenda as a basis for his answer that it did not appear to have occurred.
31 When challenged (also at paragraph [25] above) with the proposition that the alleged minutes were purely a reconstruction of matters he thought should have been dealt with at any annual general meeting, Mr Warren denied that proposition and again said that the minutes had been prepared from the agenda document. He ultimately admitted that the minutes were a reconstruction based on the agenda document. Despite several calls, the agenda document was not produced.
32 In the course of re-examination (see paragraph [26] above), Mr Warren purported to say with some particularity what happened at the supposed meeting by way of voting upon motions for re-election of Mr Lieschke and Mr Curtis as directors. But those answers are undermined by the fact that the witness attempted on two occasions to answer questions about the particular events by referring to general practice. I cannot be at all confident that what purported to be answers about the specific occasion were not merely extrapolations from general practice or descriptions of what the witness thought would have happened if the usual course had been followed.
33 I am particularly conscious of the need, expressed by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at p.361, for the trier of fact to "feel an actual persuasion of its occurrence or existence before it can be found", and that a finding of fact cannot be made "independently of any belief in its reality".
34 With the evidence in the state described, I cannot feel an actual persuasion that an annual general meeting of Centre occurred in 2005. Mr Warren's professed recollections are unreliable, given his overriding tentativeness and the fact that the matters to which he was really directing himself were procedures commonly adopted and things he admitted having reconstructed from an agenda document that was never produced, despite his having had it as recently as 27 or 28 June 2006. In those circumstances, I cannot find that decisions relevant to the constitution of the board of directors of Centre were made at any annual general meeting of Centre in the year 2005.
If there was no annual general meeting in 2005, did all offices become vacant?
35 The question that next arises is as to the effect upon the tenure of directors of Centre of failure to hold an annual general meeting in 2005, resulting in articles 35 and 37 not being implemented in that year.
36 Article 35 requires retirement of "[a] director" from office "at the conclusion of the annual general meeting". This refers, clearly enough, to each and every annual general meeting. On one interpretation, there can be no retirement and hence no vacancy unless an annual general meeting takes place, since there can otherwise be no "conclusion" of the annual general meeting and therefore no occasion for retirement and the creation of the resultant vacancy.
37 Such a construction is, however, out of line with authority. The following passage in the judgment of Sargant LJ in Re Consolidated Nickel Mines Ltd [1914] 1 Ch 883 at pp.888-889 is in point:
"As to the two other directors, Steel and Phillips, there is another objection. By clause 62 of the articles of association and by statute (s.49 of the Companies Act, 1862) the directors were bound to summon a general meeting of the company once in every calendar year, and article 101 provided that 'At the ordinary meeting in 1906 all the directors … shall retire from office'. No ordinary meeting was held or called in 1906 or 1907, and the liquidator's contention is that all the directors vacated office on December 31, 1906, which was the last day on which a meeting of the company for that year could have been held. That contention appears to me to be well founded.
A director on his appointment does not ordinarily step into an office which is perpetual unless terminated by some act, but into an office the holding of which is limited by the terms of the articles. The meaning of article 101 is that the holding of the office of director was only to last until the end of 1906, or until the earlier date on which the ordinary meeting for that year was held."
38 This case was referred to by Needham J in Club Flotilla (Pacific Palms) Ltd v Isherwood (1987) 12 ACLR 387 in connection with a submission that a committee required to retire at the conclusion of the first annual general meeting "would continue to hold office until such time as the first annual general meeting was held and concluded, no matter how long a delay in holding that general meeting". His Honour said at p.389:
"I think this submission is contrary to the line of authority which stems back over 70 years; the initial decision is that of Sargant LJ in Re Consolidated Nickel Mines Ltd [1914] 1 Ch 883, where his Lordship held that, in articles not dissimilar from the present, directors vacated their office on the last day on which a meeting of the company for that particular year could have been held. That decision has been recognised as correct by the House of Lords in Morris v Kanssen [1946] AC 459 and in a recent decision of the Chancery Division Re Zinotty Properties Ltd [1984] 3 All ER 754 at 763."
39 The House of Lords in Morris v Kanssen [1946] AC 459 did not deal with this matter at any length. In the context of provisions of generally similar import, Lord Simonds (with whom the other members agreed) merely said that neither of the persons concerned "has in any view been a director since the end of 1941", that being the deadline for the holding of the relevant general meeting. Re Consolidated Nickel Mines Ltd (above) was referred to in argument (at p.465) and it is clear that his Lordship's statement was referring to the construction preferred in that case.
40 I therefore conclude that because there was no annual general meeting of Centre in 2005, the offices of each director of Centre in office at 31 December 2005 who was required by article 35 to retire at the end of the annual general meeting held in 2005 became vacant at the end of 31 December 2005.
Did Mr Warren nevertheless continue as a director?
41 I have framed the conclusion just stated by reference to each director in office on 31 December 2005 who was required by article 35 to retire at the end of the annual general meeting held in 2005. That form of expression is indicated by the possibility that one person may, quite independently of the matters so far explored, have been in office uninterruptedly at all material times.
42 Ms Dempsey drew attention to article 30(c) of Centre's constitution:
"The Senior Minister shall be ex-officio a member of the Board and shall be the Board's Chairman."
43 Article 1 of the constitution defines "Senior Minister" as "the person for the time being holding the position of Senior Minister in the Gosford Christian Centre congregation". It is, as I understand it, accepted on both sides that, at all material times, Mr Warren was the Senior Minister. The effect of article 30(c) must therefore be that Mr Warren, while Senior Minister, was automatically a director of Centre without appointment or election as such - although, no doubt, subject to his consenting to hold the position, which he obviously has done and continues to do.
44 It then becomes necessary to consider the interaction between article 30(c) and articles 35, 36 and 37. The starting point is article 30(a) which states that "[t]he board shall consist of" not less than three nor more than nine "members". Article 30(b) then says that the five subscribers to the memorandum "shall constitute the first board". It goes on to provide that those five persons shall also be "the first officers", allocating a position to each. The position of chairman is allocated to P.A. O'Sullivan whose occupation is stated in the memorandum of association to be minister of religion. Then follows article 30(c) itself, and its specification to the effect that the person for the time being holding the position of Senior Minister in the Gosford Christian Centre congregation shall, by virtue of the person's office as such Senior Minister, be a "member of the Board" and "the Board's Chairman". If, as may have been the case, Mr O'Sullivan was the Senior Minister at the time of incorporation, article 30(c) may be taken to have an operation beyond merely causing the Senior Minister at the time of incorporation to be a member of the board and the board's chairman. On the assumption stated, that purpose was achieved by article 30(b) which installed Mr O'Sullivan as a director and as chairman. Article 30(c) must be taken to have some greater intended significance, particularly in light of the fact that it applies to the person "for the time being holding" the position of Senior Minister to the congregation and therefore has a continuing and ambulatory operation.
45 There are two provisions concerning periodic retirement of directors. The first is article 30(b). Dealing with the five subscribers to the memorandum as the first board, it says:
"They shall all retire at the first annual general meeting but shall be eligible for re-election."
46 In addition, there is article 35 which, as already noted, provides:
"A director shall retire from office at the conclusion of the annual general meeting which shall elect directors for the ensuing year."
47 Article 30(b), on its face, applied to Mr O'Sullivan and required him to retire at the first annual general meeting. He was clearly comprehended by "They" at the start of the concluding sentence of article 30(b). If, as postulated, he was, at the time, the Senior Minister, the express reference to him by name in article 30(b) would, in my view, have prevailed over the general provision in article 30(c) regarding the person holding office as Senior Minister of the congregation for the time being.
48 The interaction between article 30(b) and article 35 is, however, an interaction between two provisions of indiscriminate application, one concerning the person "for the time being" holding the position of Senior Minister of the congregation and the other concerning "A director …".
49 The clear effect of article 30(c) is that while a particular person holds the position of Senior Minister of the congregation, that person is a director, assuming that the person has actually entered into and remains willing to exercise the office of director. If, as under article 30(b), the person were by name required to retire at an annual general meeting, that requirement would have to be observed. But where, as in the case of articles 35 and 36, it is stated that "a director" must retire at the annual general meeting and is eligible for re-election, the provision causing the person to be a director by virtue of the person's office as Senior Minister must be viewed as a specific provision with respect to the directorship of the office holder and the provisions with respect to retirement and eligibility for re-election of directors at large must be regarded as general provisions. The general provisions must have an operation that is subservient to that of the specific provision. The person who is declared by article 30(c) to be a director by virtue of holding the position of Senior Minister is intended to be in office as a director throughout the person's tenure as Senior Minister; and the general requirement in article 35 takes effect subject to that expressed intention. It is the person's position as Senior Minister, not any election or appointment, that causes them to be a director.
50 I am therefore of the opinion that, although, as I have found, there was no annual general meeting of Centre in the 2005 calendar year and, as a consequence, the directors required by article 35 to retire at that annual general meeting are now no longer directors, Mr Warren, as the Senior Minister, was kept apart from that process by article 30(c) and continued to be a director ex officio by virtue of that provision.
Did the constitution allow Mr Warren to act as sole director on 26 June 2006?
51 This leads to the question whether the appointment document is valid because signed by Mr Warren and despite the circumstance that, as I have found, Mr Lieschke and Mr Curtis, the other two signatories, were not directors of Centre at the time of signing.
52 Section 250D, unlike some predecessor provisions (for example, s.140(3) of the Companies Act 1961), does not specify a mode of appointment by a body corporate. The nature of the acts required is thus to be gathered, in the first instance, from Centre's constitution. Article 42(f) of the constitution reads:
"Where all the Directors have signed a document containing a statement that they are in favour of a prescribed resolution in terms set out in the document, a resolution in those terms shall be deemed to have been passed at a meeting of the Directors held on the day on which the document was signed and at the time at which the document was signed by the Director last signing it. Where a document is so signed the Board shall be deemed to have held a Board meeting at that time on that day and the document shall be deemed to constitute a minute of that meeting."
53 The appointment document of 26 June 2006 is, on the basis that Mr Warren was then the only director, a document signed by "all the Directors". This is because it was signed by Mr Warren who, on the basis stated, was then the only director. According to article 1, the plural includes the singular, so that a reference to "all the directors" must be construed as a reference to the sole director where there is only one in office. But there is then the question whether it was open to Mr Warren alone to act in that way. It is necessary to quote, in that connection, articles 30(a), 43 and 44:
"30. (a) The board shall consist of not less than three nor
more than nine members."