In the matter of Cyprus Community of N.S.W. Limited (Administrators Appointed)

Medium Neutral Citation: In the matter of Cyprus Community of N.S.W. Limited (Administrators Appointed) [2025] NSWSC 949

Hearing dates: 15 August 2025

Date of orders: 21 August 2025

Decision date: 21 August 2025

Jurisdiction: Equity - Corporations List

Before: Black J

Decision: Parties to bring in agreed short minutes of order to give effect to this Judgment.

Catchwords: CORPORATIONS — receivers and managers — powers — statutory construction — where administrators seek declaration that a disposal of the company’s property pursuant to s 437A(1)(c) Corporations Act 2001 (Cth) is not subject to the conditional prohibition in s 41E(3) Registered Clubs Act 1976 (NSW) — whether exercise of statutory power accorded to administrator constitutes an act of the company
CONSTITUTIONAL LAW — Commonwealth and State relations — inconsistency of laws — whether conditional prohibition in s 41E(3) Registered Clubs Act 1976 (NSW) directly inconsistent with administrator’s power of sale under s 437A(1)(c) Corporations Act 2001 (Cth)

Legislation Cited: - Commonwealth Constitution, s 109
- Corporations Act 2001 (Cth), ss 5E, 5G, 437A, 437B
- Registered Clubs Act 1976 (NSW), s 41E(3)
- Security Industry Act 1997 (NSW)
- Registered Clubs Regulation 2009 (NSW), reg 19
- Registered Clubs Regulation 2015 (NSW), reg 29B(1)
- Uniform Civil Procedure Rules 2005 (NSW), r 7.6(2)(c)

Cases Cited: - Banerjee v Commissioner of Police (2018) 98 NSWLR 730; [2018] NSWCA 283
- Brash Holdings Ltd v Shafir (1994) 14 ACSR 192
- Correa v Whittingham (2013) 278 FLR 310; [2013] NSWCA 263
- Freeman, Re Regional Express Holdings Ltd (admins apptd) [2024] FCA 929
- McMillan v Coolah Home Base Pty Ltd [2024] NSWCA 138
- Re Bacchus Distillery Pty Ltd (2014) 98 ACSR 539; [2014] VSC 111
- Re Cyprus Community of NSW Ltd [2024] NSWSC 1629
- Re Kijurina [2014] FCA 1421
- Re Livingstone, Vertical 4 Pty Ltd [2025] FCA 382
Re Mableson (Admin), Bibere Australian Beverages Pty Ltd t/as Fox Creek Wines (Admins Apptd) [2025] FCA 533
- Re Munja Bakehouse Pty Ltd [2024] NSWSC 6
- Re Resnick, Toplace Pty Ltd [2023] FCA 1086
- Re Smith; Berowra RSL Bowling and Community Club Ltd (2006) 58 ACSR 410; [2006] NSWSC 780
- Scott v Port Hinchinbrook Services Ltd [2018] 1 Qd - R 319; (2017) 121 ACSR 355; [2017] QSC 092
- Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2

Category: Procedural rulings

Parties: Morgan John Kelly and David Anthony Kennedy in their capacity as joint and several administrators of Cyprus Community of N.S.W. Limited (Administrators Appointed) (First Applicants)
Cyprus Community of N.S.W. Limited (Administrators Appointed) (Second Applicant)
Helen Anastasiou (First Respondent)

Representation: Counsel:
J Hutton SC / K Woodforde (Applicants)
DL Cook SC / P Santucci (Respondent)
Solicitors:
Gilbert + Tobin (Applicants)
Marque Lawyers (Respondent)

File Number(s): 2024/389403 (006)

JUDGMENT

Nature of the application and background

1. By Amended Interlocutory Process dated 23 July 2025, the Applicants, Messrs Kelly and Kennedy in their capacity as joint and several voluntary administrators (“Administrators”) of Cyprus Community of N.S.W. Ltd (admins apptd) (“Company”) seek a declaration that a disposal of the Company’s core property by them under s 437A(1)(c) of the Corporations Act 2001 (Cth) (“Act”) is not subject to the conditional prohibition in s 41E(3) of the Registered Clubs Act 1976 (NSW) (“RCA”). Alternatively, they seek a declaration that, by reason of s 109 of the Commonwealth Constitution, s 437A(1)(c) of the Act prevails over s 41E of the RCA in respect of a sale of the Company’s core property undertaken by the Administrators.

2. Orders were made, by consent, that Ms Anastasiou be joined as the First Respondent to the application and she was appointed, pursuant to r 7.6(2)(c) of the Uniform Civil Procedure Rules 2005 (NSW), to represent that class of the Company’s ordinary members who oppose, or may at any future time oppose, the relief sought by the Administrators.

Background and affidavit evidence

3. There is no substantive factual dispute in the application. It is common ground that the Company is a registered club and has among its objects the promotion of cultural interests and the health and welfare of Cypriots and their descendants to assist in their assimilation in the Australian community. The Company owns property in inner Western Sydney which has a substantial value. On 24 September 2024, the Administrators were appointed to the Company and a secured lender then appointed receivers and managers to the Company’s assets . On 21 October 2024, the Court made orders extending the convening period for the second meeting of creditors, in an application that was supported by the receivers and managers appointed by that secured lender. By my judgment in Re Cyprus Community of NSW Ltd [2024] NSWSC 1629, delivered on 18 December 2024, I also made orders validating the appointment of the Administrators under s 447A of the Act.

4. The Administrators read the affidavit dated 12 July 2025 of Mr Kelly, who is one of the Administrators. Mr Kelly there identified the properties owned by the Company and attempts that had been made, without success, to bring about a sale of the Company’s real property prior to the Administrators’ appointment. Mr Kelly also referred to subsequent proceedings during the course of the administration, to which I have referred above; the repayment of the secured loan owed by the Company and the retirement of receivers appointed by that secured lender in February 2025; steps which have been taken by the Administrators to investigate and pursue the sale or redevelopment of the Company’s properties; the Administrators’ execution of a heads of agreement with a preferred bidder on 25 June 2025; and the Administrators’ then proposal to execute and exchange a contract for sale of the Company’s real properties by 15 July 2025. Mr Kelly there expresses the view that a sale of those properties is necessary to remedy the Company’s cash flow difficulties and provide it with a sustainable financial basis to continue its operations, presumably in alternative premises. Mr Kelly also refers to the Company’s receipt of a remediation fire order issued by the Inner West Council; the potential difficulty in obtaining member approval for the sale of the Company’s core property; the costs that would likely be incurred in holding a meeting of the Company’s members; difficulties which arise from the fact that many active members are life members rather than ordinary members and would not be permitted to vote at such a meeting; and ongoing disputes as to the membership status of persons who have been expelled or suspended from membership prior to the Administrators’ appointment. It appears that Ms Anastasiou disputes aspects of Mr Kelly’s evidence, although it is not necessary to determine that dispute where she brought no cross-claim seeking to challenge the sale of the Company’s core property on a factual basis.

5. By an affidavit dated 18 July 2025, Mr Mattock, a solicitor acting for Mr Pericleous, referred to his attitude to the application and to aspects of the factual background to the application. Mr Pericleous did not appear at the hearing, where Ms Anastasiou now appears, and also brought no cross-claim seeking to challenge the sale of the Company’s core property on a factual basis.

Whether s 41E of the RCA apply to the exercise of the Administrators’ power of sale under s 437A(1)(c) of the Act

7. Turning now to the applicable statutory provisions, ss 437A – 437B of the Act relevantly provide:

“437A Role of administrator

(1) While a company is under administration, the administrator:

(a) has control of the company's business, property and affairs; and

(b) may carry on that business and manage that property and those affairs; and

(c) may terminate or dispose of all or part of that business, and may dispose of any of that property; and

(d) may perform any function, and exercise any power, that the company or any of its officers could perform or exercise if the company were not under administration.

(2) Nothing in subsection (1) limits the generality of anything else in it.

[emphasis added]

437B Administrator acts as company’s agent

When performing a function, or exercising a power, as administrator of a company under administration, the administrator is taken to be acting as the company’s agent.

8. Section 41E(1) of the RCA in turn provides:

“41E Disposal of real property by registered clubs

(1) A registered club must not dispose of any core property of the club unless—

(a) the property has been valued by a qualified valuer, and

(b) the disposal has been approved at a general meeting of the ordinary members of the club at which a majority of the votes cast supported the approval, and

(c) any sale is by way of public auction or open tender conducted by an independent real estate agent or auctioneer ...

(6) In this section—

core property of a registered club means any real property owned or occupied by the club that comprises—

(a) the premises of the club, or

(b) any facility provided by the club for the use of its members and their guests, or

(c) any other property declared, by a resolution passed by a majority of the members present at a general meeting of the ordinary members of the club, to be core property of the club,

but does not include any property referred to in paragraphs (a)–(c) that is declared, by a resolution passed by a majority of the members present at a general meeting of the ordinary members of the club, not to be core property of the club.

dispose of property means to sell, lease or licence the property or to otherwise deal with the property in such manner as may be prescribed by the regulations …”

9. I approach the question of construction raised by these sections by reference to well-established principles of statutory construction. Counsel did not address those principles and I adopt my summary of them in Re Munja Bakehouse Pty Ltd [2024] NSWSC 6 at [35]ff as follows:

“In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, the High Court observed (at CLR 408) that:

“the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous … Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.” [footnotes omitted]

In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (“Project Blue Sky”), the majority of the High Court observed (at [69]) that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute; that the meaning of a statutory provision must be determined by reference to the language of the statute viewed as a whole; and that “the process of construction must always begin by examining the context of the provision that is being construed”. The majority then summarised (at [78]) the process of statutory construction as follows:

“the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.” [footnotes omitted]

In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 (“Alcan”) at [47], the High Court observed in a majority judgment that:

“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language that has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.” [footnotes omitted]

The majority judgment also pointed (at [51]) to the risk that a Court would not give the text the necessary attention if it focussed on an anterior perception of the general purpose of a statute.

In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 (“Consolidated Media”) at [39], the High Court quoted the first sentence of the passage cited above from Alcan and again emphasised the primacy of the text in statutory interpretation, observing that:

“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text.” So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.” [footnotes omitted]

In Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22]-[23], the High Court observed, with reference to Consolidated Media at [39], that:

“Statutory construction involves attribution of meaning to statutory text. As recently reiterated:

“‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text.”

Objective discernment of statutory purpose is integral to contextual construction. The requirement of s 15AA of the Acts Interpretation Act 1901 (Cth) that “the interpretation that would best achieve the purpose or object of [an] Act (whether or not that purpose or object is expressly stated …) is to be preferred to each other interpretation” is in that respect a particular statutory reflection of a general systemic principle.” [footnotes omitted]

In Australian Securities and Investments Commission (ASIC) v Taylor [2023] FCAFC 189 at [42], Mortimer CJ and Abraham J succinctly summarised the applicable principles as follows:

“The principles applicable to statutory construction are well established. The starting point for statutory construction is the text of the provision, having regard to its context and purpose: SZTAL v Minister for Immigration & Border Protection [2017] HCA 34; (2017) 262 CLR 362 (SZTAL) at [14], citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]–[71]; Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47].”

10. As I noted above, it is common ground that the Company is a registered Club for the purposes of s 41E of the RCA and that some of the properties that are to be sold by the Administrators are “core property” within the meaning of s 41E(6) of the RCA. That section does not apply to the disposal of core property in circumstances set out in reg 29B(1) of the Registered Clubs Regulation 2015 (NSW), which include the position where the Secretary of the Department has, on application by the registered club, approved of the property being disposed of otherwise than in accordance with RCA s 41E(1). There is no suggestion that those circumstances are applicable here.

11. As I also noted above, the Administrators, first, seek a declaration that a disposal of the Company’s core property by them under s 437A(1)(c) of the Act is not subject to the conditional prohibition in s 41E(3) of the RCA. Mr Hutton, with whom Ms Woodforde appears for the Administrators, submits, in outline, that:

“The conditional prohibition on the sale of “core property” in s 41E(1) of the RCA does not apply to the exercise of the power of sale created by s 437A(1)(c) of the [Act] because s 41E(1) is directed to constraining the actions of a “registered club”, whereas s 437A(1)(c) is a statutory power conferred on, and exercisable by, the administrator. The administrator does not have the power to sell the property of the registered club by virtue of being constituted as the agent of the owner (the registered club) and is only deemed to act as agent in selling the property by s 437B for the purposes of ensuring that the sale is effective to dispose of the relevant property and binding on the company.

The correctness of that analysis is confirmed by decisions such as Re Smith; Berowra RSL Bowling and Community Club Ltd (2006) 58 ACSR 410; [2006] NSWSC 780 (“Re Smith”) which confirm that the power of sale under s 437A(1)(c) is “not a power of the company” but “a power that the administrator is given by statute, being a power exercisable by the administrator as administrator in relation to the company’s business and property so as to be binding on the company”, and that the company “has not in fact constituted the administrator as its agent”, nor “done what has been done by the administration [sic] in exercise of the administrator’s statutory power” (Re Smith at [10], per Barrett J). Re Smith and subsequent cases confirm that in exercising the power in s 437A(1)(c) an administrator will not be subject to constraints that would otherwise apply to a sale if effected by the company (such as any constraints in the company’s constitution).”

12. Mr Hutton accepts that s 41E(1) would here apply and prevent disposal of core property of the Company unless the relevant requirements in that section were satisfied, if that disposal was to be effected by the Company rather than by the Administrators acting under the statutory power conferred by s 437A(1)(c) of the Act. However, Mr Hutton submits that the Company is not, and a registered club generally is not, subject to the conditional prohibition under s 41E(1) of the RCA where an administrator exercises the statutory power of sale under s 437(1)(c) of the Act.

13. Mr Hutton submits, first, and I accept, that the reference to “registered club” in s 41E of the RCA does not apply directly to the Administrators, who are, obviously enough, neither a club nor a registered club. It seems to me that that section also does not extend, by any available implication, to the Administrators or a liquidator or other insolvency practitioner appointed to a Club. Mr Hutton submits, and I accept, although it is not necessary to the findings that I reach below, that that construction of the section is consistent with the Second Reading Speech in the Legislative Assembly of the Registered Clubs Amendment Act 2003 (NSW), which introduced former ss 41J and 41Q into the RCA and directed attention to the risk that members of a club’s governing body, senior club management or a minority of club members might dispose of the club’s major assets at less than market value, rather than to any question of disposal of those assets by an insolvency practitioner acting in accordance with the Act. On that basis, the sale of the Company’s property is only subject to s 41E of the RCA if the exercise of the powers conferred on the Administrators under s 437A(1)(c) of the Act is properly characterised as the Company (as registered club) disposing of its core property.

14. Importantly, Mr Hutton submits, by reference to authority, that an administrator’s exercise of statutory power of sale under s 437A(1)(c) of the Act does not amount to the Company disposing of its core property for the purposes of s 41E of the RCA and submits that that section does not apply to a sale undertaken by the administrator on that basis. Mr Hutton points out s 437A of the Act confers powers on a voluntary administrator that are independent of the relevant company and, I would add, are not exercised by a decision-making organ of that company . Mr Hutton notes a possible exception under s 437A(1)(d) which imports the powers of the company, but that paragraph is not in issue here. Mr Hutton submits that, relevantly, a voluntary administrator (with powers independently conferred by statute) has the power to “dispose of” all or part of a company’s business and property under s 437A(1)(c) of the Act. Mr Hutton also submits that s 437B of the and the authorities make it clear that an administrator, in exercising powers under s 437A(1)(c) of the , does not act as an agent for a company, but rather “is taken to be acting as the company’s agent” for the purposes of ensuring the effectiveness of the transaction and its bindingness upon the company.

“The power of an administrator under s.437A(1)(c) to discontinue any part of the company’s business and to dispose of any part of its property is not a power of the company. It is a power that the administrator is given by statute, being a power exercisable by the administrator as administrator in relation to the company’s business and property so as to be binding on the company. The administrator, in exercising the statutory power, is to be taken to be acting as the company’s agent: see s.437B. That is the statutory mechanism that causes the company to be bound by acts of the administrator in exercise of the separate statutory powers conferred on an administrator with respect to the company’s property. The company has not in fact constituted the administrator as its agent. Nor has the company done what has been done by the administration [sic] in exercise of the administrator’s statutory power. The statute merely says that the acts of the administrator are to be taken to be of the same quality as if there had been an appointment of the administrator as the company’s agent.”

16. Barrett J also there observed (at [11]–[14]) that:

“The separateness of, on the one hand, a power under the [Act] for a statutory official to sell the company’s property (in that case, the power of a liquidator under s.477(2)(c)) and, on the other, the company’s own power with respect to its property (and powers of agents appointed by the company) is recognised in Australian Guarantee Corporation Ltd v Registrar of Titles (1992) 7 ACSR 577.

The comprehensive nature of an administrator’s powers under s.437A and related sections is recognised in the cases … Voluntary administration is a regime under which decision-making is confined to the administrator and, as to certain matters and in certain ways, the creditors assembled in a meeting and the court. Members and the interests of members are relegated. This is made clear by the decision of Beach J in Brash Holdings Ltd v Shafir (1994) 14 ACSR 192.

The circumstance that, in words of Beach J, “members are excluded from contemplation during the process of an administration” means that an administrator, in exercising the specific and statutory power to terminate part of the company’s business and to sell part of its property, is neither constrained nor bound to have regard to provisions of the constitution (being provisions of the statutory contract that arises under s.140(1)(a) of the Corporations Act between the company and its members which may regulate — or even prohibit — those steps. The administrator, when exercising statutory powers, is a stranger to that statutory contract. And the administrator’s acts are not acts of the company, even though they are to be regarded as having been performed by an agent of the company.

The fact that exercise by an administrator of a s.437A(1)(c) power is quite distinct from exercise by the company of a power of the company means that any effect that article 28 [of the company’s constitution] might have as “an express restriction, or prohibition of, the company’s exercise of any of its powers”, as referred to in s.125, is not a relevant consideration.” (emphasis added]

17. For these reasons, the voluntary administrator in Re Smith was held not to be bound by requirements to maintain specified facilities under article 28 of a club’s articles of association when exercising the administrator’s power of sale, because the sale was undertaken by the voluntary administrator and not by the club.

18. In Re Bacchus Distillery Pty Ltd (2014) 98 ACSR 539; [2014] VSC 111, Judd J approved Barrett J’s analysis of the nature of a voluntary administrator’s power under s 437A(1)(c) of the Act, in considering whether s 437A(1)(c) was sufficient to override a beneficial co-owner’s objection to the use of an asset in the voluntary administration. His Honour there observed (at [65]–[66]) that:

“[t]o limit the administrators’ powers to those of the company may seriously undermine the utility of the power. In the present case, such a limitation would prevent the administrators from obtaining the best possible price for the business and other assets of a company.”

19. That analysis in Re Smith was also approved and applied by Henry J in Scott v Port Hinchinbrook Services Ltd [2018] 1 Qd R 319; (2017) 121 ACSR 355; [2017] QSC 092 at [75] and by Ward P (with whom Leeming and Stern JJA agreed) in McMillan v Coolah Home Base Pty Ltd [2024] NSWCA 138 at [297] and [369]. The proposition (noted in Brash Holdings Ltd v Shafir (1994) 14 ACSR 192 at 196 and again in Re Smith at [11]) that the interests of a company’s members are properly subordinated to the interests of preserving the relevant business and the interests of creditors in a voluntary administration was also endorsed in Freeman, Re Regional Express Holdings Ltd (admins apptd) [2024] FCA 929 at [106], where Yates J observed that:

“It is to be borne in mind that, in the present circumstances, the interests of members — who have no voice in the administration of a company — are relegated to the interests of the creditors: Brash Holdings Ltd v Shafir (1994) 14 ACSR 192 at 196; Re Smith (as administrator of Berowra RSL Bowling and Community Club Ltd) [2006] NSWSC 780; 58 ACSR 410 at [12]. The interests of creditors will not be served if the requisitioned meeting is convened and held now. Ultimately, they would bear the costs in circumstances where the outcome of the meeting could be of no consequence, let alone benefit, to them.”

20. Mr Hutton here submits that:

“By parity of reasoning, the Administrators are not subject to the conditional prohibition in s 41E(1) of the RCA. The Administrators’ powers are independently conferred by the [Act] and are not subject to the same constraints concerning the disposal of the [p]roperties as would constrain the sale of property by the Company.”

21. Mr Cook, with whom Mr Santucci appears for Ms Anastasiou, responds that s 41E of the RCA applies to a sale in these circumstances, as a matter of principle, and seeks to distinguish Re Smith in order to reach that conclusion. Mr Cook submits that that case was directed to the company’s internal management rules. I accept that Barrett J addressed that matter, but his Honour’s analysis was directed to the wider question of the nature of the statutory powers of sale that are exercised by a voluntary administrator in respect of the property of a company, in a manner that binds the company without being a decision or act of the company. Mr Cook also submits that the question in this case is whether the Administrators’ power of sale can be exercised “to cause the Company” to dispose of its property contrary to s 41E of the RCA. That question does not properly arise in that form, applying the reasoning in Re Smith, since a voluntary administrator’s exercise of the power of sale under s 437A(1)(c) of the Act does not cause a company to dispose of property, but instead amounts to the disposal of property by that voluntary administrator in a manner that binds the company to the result of an act that it did not undertake. That distinction may be a subtle one, but that does not make it a less significant one.

22. If I were wrong in that view, I would also accept Mr Hutton’s submission in reply that:

“… even if an administrator does, in some sense, “cause” the company to sell its own property, there is no reason to read s 41E(1) of the RCA as extending to the separate exercise of power by an administrator, given that the authorities recognise that legal obligations may bind a principal (in this case the Company) but not his or her agent. … It is clear that the law recognises that certain constraints and conditions applicable to a person’s disposal of property will not always bind another person who acts in a different capacity to dispose of the relevant property in a way which binds the first person.”

23. In oral submissions, Mr Cook also submits (T27) that:

“One would not construe [s] 41E [of the RCA] and reference to “registered club” to exclude the disposition of core property through a mechanism other than the registered club itself doing so. When one is dealing with a corporate entity, particularly one that could go into administration or external control, one would not expect the New South Wales legislature to include a registered club, its administrator, its receiver, its provisional liquidator, its attorney under a power of attorney, its agent, must not dispose of it.”

24. I also do not accept that submission, on the basis that the reference to “not” in the third last line should be disregarded. It seems to me that, in its terms and in its context, s 41E of the RCA is directed to the conduct of the registered club, which could only be authorised by an appropriate internal decision-making organ of the club, and not to the conduct of third parties which binds the club by statute. Subject to s 109 of the Constitution, which I address below, the state legislature could have extended the application of that section to insolvency practitioners who exercised statutory powers in a manner that did not involve any decision or conduct of the club itself, but did not do so. While Mr Cook points to the purpose of s 41E of the RCA, that purpose does not require that it extend beyond an act of the club’s board or members undertaken while a club is solvent, to an act of an insolvency practitioner undertaken while a club is insolvent or likely to be insolvent, and at a time that its creditors’ interests will ordinarily prevail over its members’ interests.

25. In oral submissions, Mr Cook also sought (T28-29) to distinguish the duties and functions of a voluntary administrator under Pt 5.3A of the Act from those of a liquidator and submitted that the voluntary administration regime contemplated an investigation by a voluntary administrator over a relatively short period and then a second meeting of creditors. It was not apparent that submission had any impact on whether the relief sought by the Administrators should be granted, where Ms Anastasiou did not contend, by cross-claim or otherwise, that the Administrators lacked power to, or had breached any statutory or general law duty by contracting to, dispose of the Club’s properties in the exercise of their powers under s 437A of the Act. In any event, I do not accept that submission, if it is intended to suggest that voluntary administrators cannot or do not regularly dispose of a company’s a company’s business or its major assets during a voluntary administration. It is apparent that they regularly do so, not least because of the number of occasions on which Courts have extended the convening period in a voluntary administration for the express purpose of permitting a voluntary administrator to undertake a sale process for all or a significant part of a company’s assets: for several recent examples from a very large number of cases, see Re Kijurina [2014] FCA 1421; Re Livingstone, Vertical 4 Pty Ltd [2025] FCA 382; Re Mableson (Admin), Bibere Australian Beverages Pty Ltd t/as Fox Creek Wines (Admins Apptd) [2025] FCA 533; Re Resnick, Toplace Pty Ltd [2023] FCA 1086. I recognise that cases that address the position of a registered club that is incorporated under the Act and placed under voluntary administration are rare, likely because that situation is itself rare; however, such a club is governed by the same statutory regime, and I address the decision in (2013) 278 FLR 310; [2013] NSWCA 263 (“”) below.

“A sale of the Company's core property will be subject to the approval of members as required by the Registered Clubs Act 1976 (NSW) or the Company's Constitution.”

29. At the relevant time, former s 41J(3) of the RCA was in broadly similar form to the present s 41E(1) of the RCA and provided that a registered club must not dispose of core property of the club unless certain requirements were satisfied. That prohibition was subject to an exception in reg 19 of the Registered Clubs Regulation 2009 (NSW), which provided that former s 41J(3) did not apply in relation to the disposal of core property of a registered club where “the Director-General [of Communities NSW] has, on application by the registered club, approved of the property being disposed of otherwise than in accordance with section 41J(3) of the [RCA]”. A delegate of the Director-General had there expressed the view that former s 41J of the RCA did not apply to the sale of the Spanish Club’s property but had not expressly granted such approval.

30. Gleeson JA (with whom Barrett JA and Tobias AJA agreed) there observed (at [268]) that:

“The Director-General’s opinion that [former] s 41J had no application to the disposal of core property of a registered club by an administrator exercising a power of sale pursuant to the [Act] was apparently founded on the view that the administrator being given that power by the [Act], prevailed over any restriction imposed by State legislation. [The deed administrator] did not contend on appeal that this view was correct, but submitted that it was reasonable for him to rely on the Director-General’s opinion at the time.”

It is apparent that the deed administrator did not there advance the position which the Director General had there taken, and for which Administrators now contend, either in respect of a deed administration or a voluntary administration.

31. His Honour also observed (at [286]–[290]) that:

“The appellants’ primary complaint is based upon an alleged breach of either cl 5.1 of the DoCA or [former] s 41J of the [RCA]. Whether or not some breach occurred by [the deed administrator’s] conduct in entering into a contract of sale of the Club’s core property, the appellants did not challenge the primary judge’s finding that they failed to demonstrate that the position of the Club’s members would have been improved [the deed administrator] had not proceeded with the sale of the Club’s property without their approval. Simply stated, the appellants did not establish that prejudice to the Club’s members flowed from Mr Whittingham’s actions (assuming a breach of either cl 5.1 or [former] s 41J).

If it were necessary to reach a view on the proper construction of cl 5.1 of the DoCA, I consider that the primary judge correctly concluded (at [174]) that the clause did not impose, in relation to the sale of the Club’s core property, a requirement to obtain the approval of members, independent of any equivalent requirement to be found in the [RCA]. That is, cl 5.1 did no more than “pick up” provisions in the [RCA] such as [former] s 41J. Were it otherwise, I agree with the primary judge that the reference to the [RCA] in cl 5.1 would be otiose.

It is necessary to next consider s 41J of the [RCA]. On the construction of cl 5.1 of the DoCA accepted by the primary judge, member approval was still required for the sale of the Club’s core property because an exemption under the [RCA] was never granted. The opinion expressed in the delegate’s letter of 11 August 2009, that s 41J had no application to the sale of the Club’s core asset, did not constitute an approval by the Director-General under reg 19(1)(h) of the Registered Clubs Regulation. Therefore the attempt by [the deed administrator] to sell the core property without the approval of members was contrary to [former] s 41J(3), and consequently a breach of cl 5.1 of the DoCA …

However, [the deed administrator’s] submission that there was no wilful breach of cl 5.1 of the DoCA or [former] s 41J should be accepted. In my view, the delegate’s letter of 11 August 2009 did provide [the deed administrator] with a reasonable basis at the time for thinking that the sale of the Club’s core property without approval of members would not give rise to a contravention of s 41J of the [RCA]. There was no suggestion that [the deed administrator] acted unreasonably in accepting that opinion.” [emphasis added]

32. These observations commence with express assumptions as to whether there was a breach of cl 5.1 of the DOCA or former s 41J of the RCA and, in the third paragraph, focus on the question whether former s 41J (assuming its application) was displaced by the position taken by the Director General by his delegate. Notably, Gleeson JA did not there consider whether former s 41J applied to a sale by a deed administrator pursuant to a DOCA, still less a sale by a voluntary administrator prior to the entry into a DOCA, or record any submissions by the parties as to that question.

33. Mr Hutton submits, and I accept, that no argument was there directed to the question whether former s 41J(3) of the RCA applied to a voluntary administrator’s exercise of the statutory power of sale in s 437A(1)(c) of the Act, where Gleeson JA neither referred to nor addressed such an argument. Mr Cook also recognises that former s 41J of the RCA was not determinative of the outcome in Spanish Club, where the appellants had there not challenged the finding at first instance that there was no evidence that the position would have been improved if the deed administrator had not proceeded with the sale without member approval. However, he submits that it appears from the Court of Appeal’s reasons that argument was directed to the effect of former s 41J of the RCA. I do not accept that submission, where there is no reference to any such argument on appeal and no reason to think that Gleeson JA would not have noted or dealt with such an argument had it been put. It seems to me that the parties in Spanish Club assumed the application of cl 5.1 of the DOCA and former s 41J of the RCA in respect of the power of sale arising under the DOCA and focussed their attention on the impact of the Director General’s position in either displacing that requirement or providing a reasonable basis for the deed administrator’s approach.

34. In oral submissions, Mr Cook also submitted that the scope of former s 41J of the RCA “would have” (or possibly should have) arisen in Spanish Club. However, Mr Cook fairly acknowledged (T23) that there is no reference in Spanish Club to any party putting a submission to the effect that former s 41J of the RCA did not apply in that case, at least as incorporated by cl 5.1 of the DOCA, unless the Director General’s advice had excluded it. It is not necessary to speculate why that may be so, although obvious possibilities are that the parties assumed that it did not matter, because of the terms of cl 5.1 of the DOCA, and more complex explanations postulated by Mr Hutton may also be available. Why the parties took that approach is not to the point, where the issue that there arose was not the scope of the prohibition under former s 41J of the but rather whether an exception to an assumed requirement for member approval of the sale was available by reason of the attitude expressed by the Director General to the relevant transaction, and whether the deed administrator had acted unreasonably in that regard.

“It was not possible for the Court [of Appeal] to determine that the appeal [sic] on the basis that there was a failure to take into consideration a contravention of the statute without the Court finding whether their [first], had been a contravention of the statute and, secondly, whether there was prejudice which enlivened the jurisdiction under s 447E.”

36. I do not accept the first step in that submission. It was not necessary for the Court of Appeal to determine whether there was a contravention of former s 41J of the RCA where the parties did not address submissions to that question; second, it was possible to determine the appeal absent determination of that question, where the proceedings had been conducted on the common basis that the sale required member approval, at least under cl 5.1 of the DOCA, subject to the impact of the Director General’s advice; and, third, in any event, it was sufficient to determine that aspect of the appeal, as Gleeson JA observed, that there was no challenge to the finding at first instance that there was no prejudice which enlivened the Court’s jurisdiction under s 447E of the Act.

37. Mr Hutton also submits, in reply, and I also accept, that Spanish Club is not binding as to the effect of former s 41J of the RCA or present s 41E of the RCA, because Gleeson JA’s reference to the section is obiter, and, more importantly, because his Honour there assumed that former s 41J of the RCA applied, absent a relevant exception, and that proposition was not the subject of argument. As Mr Hutton points out, where “a proposition of law is incorporated into the reasoning of a particular court, that proposition, even if it forms part of the ratio decidendi, is not binding on later courts if the particular court merely assumed its correctness without argument”: CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64 at [13]. For all these reasons, the decision in Spanish Club did not determine, and is not authority for, the position for which Ms Anastasiou contends.

38. Finally, Mr Hutton points to suggested practical difficulties which would result with the power of sale under s 437A(1)(c) of the Act was constrained by s 41E of the RCA. I do not consider it necessary to address those matters given the conclusion that I have reached as a matter of statutory construction. I should nonetheless address Mr Cook’s response to that submission, to the effect that:

“There is a plain risk that a board of directors whose views are inconsistent with those of its members, cognisant that any vote to dispose of core asserts would be defeated, might “pre-package” a sale of the core property and then appoint an administrator, who, on the construction advanced by the Administrators, would have an immediate power on Day 1 of the administration to enter into that contract of sale. That scenario is not an unlikely one where such a sale will likely result in a surplus of the amount of funds required to pay existing creditors and to meet the administrator’s fees and expenses. All of that could occur without the statutory safeguards of (a) a valuation of the core property or (b) an opportunity for club members to consider whether the core property should be sold. The Administrators’ argument - that the substitution of an administrator for the statutory safeguard of a valuation and a vote by members - assumes that administrators operate upon sufficient and accurate information. That assumption is not borne out by experience. Administrators often have imperfect information from their limited time spent managing the business, and are reliant upon the probity of the information provided by the board.”

39. That response does not seem to me to address the difficulty that s 41E of the RCA has the capacity to prevent a voluntary administrator exercising his or her powers under s 437A(1)(c) of the Act so as to promote the objectives specified in s 435A of the Act and, by extension, a liquidator performing his or her statutory duties to realise the Company’s assets as required by the Act. By contrast, the situation addressed by Mr Cook would readily be addressed by reference to directors’, and indeed a voluntary administrator’s, statutory and general law duties. Ms Anastasiou did not contend that a breach of those duties had in fact occurred here.

40. In summary, I agree with the views expressed by Barrett J in Re Smith and with the approach taken in the several cases that have followed it, and I find that the Club (as distinct from the Administrators) does not here dispose of core property so as to fall within the requirements of s 41E of the RCA*.* I am reinforced in that view by the fact that the Company could only itself dispose of its core property in a manner permitted by its constitution or constituent rules, typically by a decision made by its board, subject to any requirement for member approval in general meeting. It is plain enough that the Company itself has not here determined to sell that core property, by its directors or by its members; to the contrary, s 437A(1)(c) has the result that the Company is bound, by statute, by a decision that it has not made and an act that it cannot take for itself and s 41E of the RCA has no application to that decision or that act.

Whether the application of s 41E of the RCA would be inconsistent with s 437A(1)(c) of the Act

41. As I noted above, the Administrators alternatively seek a declaration that, by reason of s 109 of the Commonwealth Constitution, s 437A(1)(c) of the Act prevails over s 41E of the RCA in respect of a sale of the Company’s core property by administrators. Although this question does not arise, on the findings that I have reached, I will address it briefly against the contingency that an appellate court may take a different view.

42. Section 109 of the Constitution provides that:

“When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”

43. Mr Hutton points out that inconsistency may at least be established by “direct inconsistency” where the State law would “alter, impair or detract from” the operation of the Commonwealth law: Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2 at [32]. It is not necessary to address any other bases for inconsistency here. Mr Hutton points out that s 5E of the Act applies where a State or Territory law can operate concurrently with the Act; and s 5G of the Act applies where a State or Territory law is directly inconsistent with the Act. The latter section has the effect that a State provision which commences after the commencement of the Act; is not capable of operating concurrently with the Act; and has not been declared by a law of the State to be a Corporations legislation displacement provision, will be displaced by the provision in the Act.

44. Mr Hutton submits that:

“were s 41E(1) of the RCA read so as to apply to an administrator exercising the power of sale conferred on the administrator by s 437A(1)(c) of the [Act], then s 41E(1) gives rise to a direct inconsistency with s 437A(1)(c) of the [Act] by seeking to constrain an otherwise unfettered power of sale. If there is a direct inconsistency, then s 437A(1)(c) of the [Act] will prevail over s 41E(1) of the RCA because of the operation of s 5G(3), item 3 of the CA.”

45. Mr Hutton further submits that s 41E(1) of the RCA is directly inconsistent with s 437A(1)(c) of the Act, where it would directly cut down an administrator’s broad powers under that section in respect of a registered club’s core property. He also submits that:

“The application of s 41E(1) of the RCA to an administrator is also directly inconsistent with the object of Part 5.3A of Chapter 5 of the [Act] set out in s 435A – namely, to maximise the chances of the company continuing in existence or, if this is not possible, to obtain a better return for the club’s creditors and members than what would have resulted from an immediate winding up. Section 41E(1) cannot merely be read as able to operate concurrently by imposing additional obligations on an administrator, because it strikes to the heart of the purpose of s 437A(1)(c) and the purpose of Part 5.3A of Chapter 5 of the [Act] in a way that detracts and impairs the operation of s 437A(1)(c) of the [Act].”

46. Mr Cook responds that:

“… the Administrators’ analysis of the purported inconsistency by reason of section 109 of the Commonwealth Constitution is incomplete. The provisions can clearly operate together … an administrator can both sell property pursuant to s 437A and comply with the procedural requirements in respect of core property in s41E of the [RCA]; or otherwise seek the approval of the Secretary of the Department pursuant to s41G [of the RCA], and reg 29B of the Registered Clubs Regulation 2015 (NSW). Section 5E of the [Act] makes clear it is not purporting to create a general immunity from State law applicable to the operation of a company’s business.”

47. In reply, Mr Hutton responds that:

“[Ms Anastasiou] argues that no direct inconsistency has been made out and asserts that both laws are capable of being obeyed. However, that argument overlooks the significant alteration and impairment of an administrator’s powers which would be occasioned if s 41E(1) of the RCA applied to an administrator exercising the power in s 437A(1)(c) of the [Act] …

… the statutory regime for administration confers significant powers on an administrator for the purposes of maximising the chances of the company’s continuing existence or maximising the return to creditors. Part 5.3A of the [Act] contains a number of provisions which immediately alter the rights of members, creditors and the functioning of the company, to achieve these purposes, including: s 437D which provides that only the administrator can deal with the company’s property; Div 5, which provides for a meeting of creditors to decide the company’s future; s 440B which restricts the exercise of third parties’ property rights during the administration; and s 442C which sets out the circumstances when an administrator may dispose of encumbered property.

Part 5.3A, including the administrator’s powers under s 437A, contemplates a significant deviation from the normal operation of the company, focuses on the interests of the creditors, and allows for expansive powers for the administrator to attempt to turn the company’s fortunes around. Such a regime would necessarily suffer significant alteration or impairment should it operate subject to the conditional prohibition in s 41E(1) of the RCA, which place considerable power and control in the members, contrary to the approach taken in Part 5.3A.”

48. It seems to me that the difficulty with Ms Anastasiou’s position in this respect is that the relevant inconsistency arises because Pt 5.3A of the Act, and at least ss 435 and 437A, authorise the sale of the Company’s property by the Administrators to promote the interests identified in s 435A of the Ac**t, including the return to the Company’s creditors and the continuance of the Company’s business, and s 41E of the RCA prioritises a different interest, namely members’ interest in reaching their own decision as to whether the Club’s property should be sold or not. The priority given to members’ decision under s 41E of the Act would have the plain consequence that members are free to prefer that the Company retains its property at the risk of continuing insolvency or a lesser return to creditors and would plainly limit the scope of the Administrators’ power under s 437A(1)(c) of the Act and undermine the objectives specified in s 435A of the Act. That is sufficient to give rise to the relevant inconsistency for the purposes of s 109 of the Constitution if, contrary to my view, s 41E of the RCA had the operation for which Ms Anastasiou contends.

49. Mr Cook also relies on Banerjee v Commissioner of Police (2018) 98 NSWLR 730; [2018] NSWCA 283 (“Banerjee”) which dealt with the interaction between s 437A of the Act and a State licencing regime under the Security Industry Act 1997 (NSW). He submits that:

“In Banerjee, the company held a master security licence when it entered voluntary administration. As a result of cl 13(3) of the Security Industry Regulation 2016 (NSW), the Commissioner was required to revoke the licence. The administrators argued that cl 13(3), when read with s 26(1A) of the Security Industry Act, was inconsistent with s 437A(1)(c) of the [Act] and therefore invalid under s 109 of the Constitution. That argument was rejected.

The Court held that there was no inconsistency. There was no indication in Pt 5.3A of the [Act] that companies in administration (or their administrators) were intended to enjoy immunity from otherwise valid State laws regulating the conduct of business (at [39]). The purpose of Pt 5.3A, as identified in s 435A, was entirely consistent with the carrying on of the company’s business being subject to general State law, including licensing requirements (at [32]). Importantly, the Court noted that s 437A does not confer a freestanding or unqualified right to carry on any business; it merely empowers administrators to do so to the extent permitted by law. Where a State law restricts the conduct of a business (such as by revoking a necessary licence), the administrator’s power under s437A is correspondingly limited.

That reasoning applies mutatis mutandis to s41E of the [RCA].”

50. Mr Hutton responds, in reply, that:

“[Banerjee] is not analogous because in Banerjee, the state law expressly operated because of the company’s entry into administration and functioned to regulate in what manner and by whom the business could be carried on. Here, the RCA fundamentally restricts the Administrators’ from carrying out their function, in a statutory context where the interests of creditors are to be prioritised over members’ interests and where the [Act] operates to modify third parties’ property rights during the administration in order to achieve the statutory purposes of Part 5.3A of the [Act].”

51. I do not accept that Banerjee assists the position put by Ms Anastasiou. Here, s 437A(1)(c) of the Act authorises the Administrators’ sale of the Company’s property in order to advance the objectives set out in s 435A of the Act; and s 41E of the RCA seeks to constrain that sale, so that it cannot occur without member approval in respect of core property, or another exception, including potentially the approval of the Director-General. The possibility, to which Mr Cook points, that an inconsistency might be avoided in a particular case, because members approved the sale of the core property or because the Director-General granted a relevant exception, does not exclude the direct inconsistency which exists in the general case. In oral submissions, Mr Cook also submits (T34) that no inconsistency would arise, for the purposes of s 109 of the Constitution, if a statutory provision simply limited the circumstances in which the Club’s property was sold, for example, by requiring the removal of asbestos prior to a sale, and undertook a detailed review of Banerjee and further case law to support that submission. Mr Hutton did not contend to the contrary. Mr Cook also developed a further alternative submission that any conflict between s 437A of the Act and s41E of the RCA can be resolved by preferring the specific to the general. I do not accept that submission, where to do so would have the consequences to which I referred in paragraph 48 above.

52. For these reasons, if, contrary to the conclusion that I have reached, s 41E of the RCA had the effect for which Ms Anastasiou contends, I would have held that it was inconsistent with and displaced by s 437A(1)(c) of the Act in respect of the exercise of a voluntary administrator’s exercise of a power to sell the core property of a registered club that was incorporated under the Act.

Orders

53. I direct the parties to bring in agreed short minutes of order to give effect to this judgment within three business days.

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