Kibby v Santiniketan Park Association Inc [1998] VSC 148

Supreme Court of Victoria|1998-11-25|Before: Mandie, J.

ASSOCIATIONS - unincorporated associations - whether land vested in incorporated association - whether and when unincorporated association was formed or carried on - Associations Incorporation Act 1981 (Vic) ss.3, 8, 9.

Section 8(1) of the Act provides that upon the granting of a certificate of incorporation of an association, all property held by a person on trust or otherwise for or on behalf of the association or for any of its purposes (subject to s. 8) is vested in the incorporated Association.

Under the Act, "association" means an association, society, club, institution or body formed or carried on for any lawful purpose and that has not less than five members (s. 3(1)). Sections 4-7 of the Act deal with the process of incorporating such an association.

Section 9(1) of the Act provides that, where land vests in an incorporated association under s. 8(1) and "the registered proprietor has not executed an instrument as directed by s. 59 of the Transfer of Land Act 1958 giving effect to that vesting", "the incorporated association may make an application in the prescribed form to the Registrar for the making of any recordings in the Register that are necessary or expedient in consequence of the vesting". An application must be accompanied by the certificate of incorporation, a declaration by the public officer of the incorporated Association to the effect that the land is so held in trust, the certificate of title and the prescribed fee (s. 9(2)).

In substance, s. 59(1) of the Transfer of Land Act 1958, so far as relevant, requires a registered proprietor to give effect to a statutory vesting and s. 59(2) provides that, if the registered proprietor is unable or refuses to give effect thereto or cannot be found, the Registrar may give effect thereto.

On 31 August 1994, the incorporated Association came into existence having been granted on that date a certificate of incorporation under the Act. By application number U191789H dated 29 April 1996 ("the vesting application") the incorporated Association applied to the first defendant, Registrar of Titles, requesting the Registrar, in accordance with s. 9(1) of the Act, to amend the title to the Ferny Creek land so as to give effect to the vesting of that land in the incorporated Association.

In support of the vesting application, a statutory declaration of Donald Ian Webb dated 22 March 1996 was lodged with the Registrar relevantly stating:

"The land... was purchased by the association prior to its incorporation. Several members of the association agreed to act as Trustees and these members are shown as registered proprietors on the Certificate of Title. Of those registered proprietors Mr Sidney Robert Saunders, William Alexander Lugton, Professor Raynor Johnson and Mrs Beryl Hubble are deceased. James Hornby is now known as James McFarlane and resides in the United States of America. Judy Cook is now known as Natasha Hamilton-Byrne and resides in the United Kingdom. Mr Peter Kibby is living in Melbourne. That land is held in trust on behalf of the Association and at the time of the purchase a trust Deed was prepared but I do not have any executed copy of that Deed. Now produced and shown to me at the time of my making this declaration and marked with the letter `B' is a true copy of that Deed. An instrument of Transfer was submitted to Mr James McFarlane and was executed by him. Now produced and shown to me at the time of my making this my declaration and marked with the letter `C' is a true copy of that Transfer. The original is being lodged with this application. An instrument of Transfer was submitted to Mr Peter Kibby for execution by him but he has refused to execute the instrument. Natasha Hamilton-Byrne is resident in the United Kingdom and it is not practicable to obtain her signature within a reasonable time. I hereby make application on behalf of the Association for the Registrar to make any recordings in the register that are necessary or expedient in consequence of the vesting of the land in the Association."

On 19 July 1996, the plaintiff lodged a caveat forbidding "the making of a recording in the Register of the nature now made by [the incorporated Association] in Application Number U191789H on the grounds that the Applicant thereunder has no entitlement to be recorded as proprietor of the land [and] that the grounds of its application do not in any event disclose a basis upon which the Application to be registered or recorded as a proprietor is made but rather that several of the registered proprietors are now deceased and that several of the registered proprietors refuse to execute the transfer..."

Section 9(10) of the Act provides that such a caveat shall be deemed to have lapsed after the expiration of 30 days after its lodgement, unless in the meantime the caveator has commenced proceedings to establish his title to the estate or interest specified in the caveat.

By writ dated 19 August 1996 the plaintiff commenced this proceeding against the Registrar of Titles alleging "an entitlement to remain a registered proprietor jointly with [the] other registered proprietors of the [Ferny Creek] land", and purportedly pursuant to s. 103 of the Transfer of Land Act, claiming a declaration against the Registrar of Titles that the vesting application "is not prima facie made out" sufficient to enable the Registrar of Titles to proceed" with it and an order restraining the Registrar of Titles from so doing. Subsequently, by leave, the writ was amended to add the incorporated Association as defendant and the statement of claim was substantially amended. At trial, no points were sought to be made concerning the nature of the claims in the caveat, compliance with time limits or the like.

By his amended statement of claim the plaintiff alleged that, inter alia:

* he acquired registration as joint proprietor of the Ferny Creek land pursuant to an instrument of transfer dated 27 June 1968 "and remains a registered joint proprietor not holding the same on trust for either [the incorporated Association] or its members" (paragraph 2);

* the incorporated Association "is not in fact the successor in law to the unincorporated association of persons that it alleges either expressly or implicitly in the application to be the successor in law to" (paragraph 3A);

* "he did jointly with other persons including the other registered proprietors of the land and other persons not included or then intended to be included as members of [the incorporated Association] make personal contributions of value comprising the consideration expressed at $15,500 as having been paid by him and the other registered proprietors as Transferee in Instrument of Transfer... dated... 27th June 1968 as a consequence of which he claims an entitlement to remain registered as a proprietor of the land to the exclusion of [the incorporated Association]" (paragraph 11);

* "in the event that [the incorporated Association] is the successor in law to the unincorporated association of persons that it alleges to be successor in law to... the plaintiff and the other registered proprietors ... do not hold the land on trust for [the incorporated Association]" (paragraph 11A);

* at the time of acquisition of the land, the incorporated Association "did not exist, nor was its existence proposed, contemplated or discussed by the plaintiff with any of the other transferees" (paragraph 12).

The amended statement of claim in the alternative (in paragraphs 11C to 11K) alleged that the plaintiff and others made considerable financial and non-financial contributions to the Ferny Creek land "prior to 27 June 1968" and "between 1968 and the date hereof" to the knowledge of the members of the unincorporated association (of which the incorporated Association was the successor) and that the plaintiff had a reasonable belief or expectation that he would acquire an interest in the land proportionate to his contributions. On that basis, the plaintiff claimed a beneficial or an equitable interest proportionate to his contributions by way of estoppel or resulting trust or constructive trust.

Finally, the amended statement of claim somewhat curiously alleged:

"13. The Plaintiff alleges most if not all present members of the [incorporated Association] have become such members as a direct result of their adherence to the directives or teachings of a cult leader known as Anne Hamilton Byrne and as such instrument, the [incorporated Association] seeks to deprive him and other former or disaffected members of that cult of registration or to any entitlement to any beneficial interest in the said land."

The plaintiff provided, pursuant to request, particulars of the alleged contributions as follows:

"The Plaintiff has been since late 1964, or thereabouts an active member of a group whose members later formed the Santiniketan Park Association (an unincorporated association). The Plaintiff at the time and (sic) contributed legal services. He also acted as an office bearer of an interim committee. He provided these services without remuneration. The Plaintiff also paid amounts to the Treasurer of the Association from time to time and made contributions at the weekly meeting held between 1968 and 1987, which monies (along with those contributed by other members) were used towards the acquisition, conservation and improvement of the land. The Plaintiff is unable to specify the amount contributed, because of the effluxion of time and the loss or destruction of various financial records. ... The Plaintiff and his wife, at the request of one Anne Hamilton Byrne, paid $14,000.00 in or about 1973, to a person (previously known as Colin Hargreaves and now known as Harry McDonald). The monies had been lent by the said McDonald to either acquire the land, or facilitate the construction and development of a hall on the land."

(Emphasis added.)

The following relief was sought by the plaintiff against the incorporated Association:

"(d) A Declaration that the Application lodged by the Second Defendant in U191789H is not `prima facie made out' sufficient to enable the First Defendant to proceed with the Application by the Second Defendant. (e) A Declaration that the Plaintiff has a beneficial or an equitable interest in the land in a share proportionate to the value of such sums as found by this Honourable Court to represent contributions to the land made by him. (f) A Declaration that the Plaintiff has an equitable charge or lien over the land for such sums as found by this Honourable Court to represent contributions to the land made by him. (g) A Declaration that, in the event of the Second Defendant becoming registered proprietor of the land, it would hold the land on a resulting trust for the Plaintiff in a share proportionate to such sums as found by this Honourable Court to represent contributions to the land made by him. (h) A Declaration that, in the event of the Second Defendant becoming registered proprietor of the land, it would hold the land on a constructive trust for the Plaintiff in a share proportionate to such sums as found by this Honourable Court to represent contributions to the land made by him. (i) Alternatively, a Declaration that the Plaintiff, jointly with the other registered proprietors of the land, holds it on trust for himself, the other registered proprietors and various third parties who made contributions, in proportions commensurate with contributions made by each of them to the acquisition, conservation and improvement of the land from the date of registration and continuing until judgment. (j) An Order that the Second Defendant, in the event of it becoming registered proprietor of the land, transfer to the Plaintiff (as a tenant in common) a share in the land proportionate to the value of such sums as found by this Honourable Court to represent contributions to the land made by him. (k) Damages (in a sum equal to the value of such sums as found by this Honourable Court to represent contributions to the land made by the Plaintiff) and interest thereon and, in default of payment thereof, an order for the sale of the land and a distribution from the net proceeds thereof of the amounts of such damages but without prejudice to a further order for damages in the event of there being a shortfall. (l) Repayment of sums as found by this Honourable Court to represent contributions to the land made by the Plaintiff and interest thereon."

The incorporated Association, by its defence, denied all of the significant allegations made by the plaintiff and pleaded that:

(a) on 17 September, 1968, the Plaintiff acquired registration as joint proprietor of the land together with William Alexander Lugton, Judy Cook, James Hornby, Beryl Hubble, Raynor Johnson, and Sidney Robert Saunders;

(b) of these six other registered joint proprietors, Lugton, Hubble, Johnson and Saunders have since died;

(c) Judy Cook is now known as Natasha Hamilton-Byrne; and

(d) James Hornby is now known as James Rowan Macfarlane.

2B. All seven registered joint proprietors of the land, the Plaintiff included, (but noting that four of them died over time):

(a) held the land, until 31 August 1994, as trustees upon trust for the free use of the Santiniketan Park Association for the purpose of carrying on the objects, aims and functions of that Association; and

(b) have since held the land as trustees for the Second Defendant.

2C. Further or alternatively to paragraph 2B(b) of this Defence, on 31 August 1994, by virtue of S.8(1) of the Associations Incorporation Act 1981, the land vested in the Second Defendant."

The central issue fought out in the proceeding was whether, prior to the transferees taking a transfer of the Ferny Creek land in 1968, there was in existence an unincorporated association and, if so, did the transferees take the transfer and hold title, once registered, as trustees for that unincorporated association or the members thereof. A subsidiary question was whether the incorporated Association was the successor of that unincorporated association. Mr Wikrama, who appeared as counsel for the incorporated Association, submitted that these questions should be answered in the affirmative and that therefore the requirements of s. 8(1) of the Act were satisfied, namely that the Ferny Creek land was held by the registered proprietors "on trust or otherwise for or on behalf of the association or for any of its purposes" (that is, for the association which had since become incorporated).

For some time, from about 1964, small groups of people then and thereafter often referred to as "the Family" had met regularly in a library situated in the grounds of a house on a property in Ferny Creek. In early 1964 the plaintiff, then a solicitor, came to meet Anne Hamilton-Byrne ("Hamilton-Byrne") and through her was "initiated" in about September 1964. The said library was in a separate detached building which was referred to as "the little chapel". The property was owned by Dr Raynor Johnson, a retired master of a university college. The property had been named "Santiniketan" by Dr Johnson because it was a name associated with the great Indian sage, poet and mystic Rabindranath Tagore. The meetings took place every Thursday and Sunday and matters of religion, comparative and oriental religion and philosophy and the like were discussed. Dr Johnson occasionally gave lectures or talks; Hamilton-Byrne often did and was influential with those attending. The number of people meeting gradually increased and the little chapel became too small to accommodate them.

The Ferny Creek land, which was directly opposite Dr Johnson's property, came up for sale in 1968. It comprised about seven acres of vacant land and was like a park. A steering group or committee had been informally set up to find an appropriate site and it was decided by that committee (or, according to the plaintiff, by Hamilton-Byrne) to buy the Ferny Creek land. I am satisfied, having heard the witnesses called by the second defendant, that Hamilton-Byrne's views, whilst carrying considerable weight, were not determinative in relation to this matter or generally. A contract of sale was entered into at some time in 1968 but after thirty years, unsurprisingly, the contract could not be found and the name of the purchaser or purchasers could not be recalled. One or more of the persons interested (not including the plaintiff) contributed the purchase monies. The plaintiff gave evidence that in approximately 1968 the Santiniketan Park Association commenced and that to the best of his recollection this happened after the purchase of the Ferny Creek land. The plaintiff gave evidence that "membership", both joining and remaining a member, was at the discretion of "the teacher" (Hamilton-Byrne) and that there was no set of rules or a constitution. On the other hand, Mr Cook, one of those involved in 1968, testified, and I accept, that "membership" was "fluid" based on friendship, and people came and went as they pleased. The evidence did show, however, that there was a core of regular attendees at meetings. The plaintiff said, later in his evidence, that at one of the meetings in the little chapel those present decided that the Ferny Creek land should be called Santiniketan Park and that the group (which then numbered between 70 and 100 persons) should be called Santiniketan Park Association. The plaintiff said that this happened "either just prior to the [Ferny Creek] land being bought or subsequently". Another of the registered proprietors James Rowan Macfarlane (named James Hornby on the title), who was called by the second defendant, said that he was asked to be a trustee "for the lodge" but that "it wasn't really called the association until we actually had the building, the hall building..." I accept that evidence. When cross-examined, he confirmed that when he was registered as proprietor there was no association at that time.

By instrument of transfer dated 27 June 1968, John Charfield Jacona "in consideration of the sum of [$15,500] paid to me" ("by" was deleted) transferred all his estate and interest in the Ferny Creek land to William Alexander Lugton, Judy Cook, James Hornby, Beryl Hubble, Raynor Johnson, Peter Kibby (the plaintiff) and Robert Saunders. The transferees were registered as joint proprietors on 17 September 1968.

The plaintiff accepted that he and his co-proprietors were trustees and not owners of the Ferny Creek land in their own right. He assented to a proposition put to him that it had been "decided that seven people would be appointed to act as trustees to own the land, to control the land for the association". By so assenting, I did not take him to be conceding that there was an association in the sense put in issue in the proceeding.

A draft unexecuted deed of declaration of trust bearing date October 1969 and headed "Santiniketan Park Association" was put in evidence by the plaintiff solely for the purpose of his denial that he prepared it. The draft deed named the seven joint proprietors of the Ferny Creek land as proposed parties to the deed ("the Trustees") and recited that "the Trustees are members of the Santiniketan Park Association... and whereas on the eleventh day of June 1968 at a meeting of the said Association the Trustees were appointed Trustees of the said Association and whereas the Trustees purchased under a Contract of Sale [details and date in 1968 left blank] all that piece of land [title details left blank]". The document and its recitals were never proved or verified. The document is therefore of no assistance to the second defendant, and reliance was not placed upon it.

In or about 1969, it was decided that a hall should be erected on the Ferny Creek land. Money was donated, lent and raised by functions. People contributed architectural and other services.

A committee was formed which in due course looked after the day-to-day running and maintenance of the hall and met monthly. The plaintiff said in his witness statement that the committee was nominated after the hall was built. In oral evidence he said that he thought the committee was formed after the land was purchased but before the hall was erected but he could not be sure. The committee was nominated or appointed by Hamilton-Byrne, according to the plaintiff. The first president was Dr Johnson, Mr Lugton was the treasurer, Mr Saunders was the secretary and the plaintiff was a member of that committee.

A bank account was opened at the ANZ bank at 90 Bourke Street, Melbourne by the then treasurer, Mr Lugton. The bank account was opened in the name of the Santiniketan Park Association. Dr Johnson and Mr Lugton were the initial signatories. There was no documentary evidence as to when this bank account was opened. The plaintiff, who later became treasurer and an account signatory, could not recall when the bank account was opened but his "feeling" was that it was after the hall was built. The regular meetings continued and the attendees "donated" a stipulated amount per meeting to cover expenses relating to the hall and the Ferny Creek land.

After the bank account was opened, I am satisfied that from the Association's bank account were paid the council rates, the water rates, the electricity charges and all the other outgoings in connection with the Ferny Creek land and the hall thereon at all times until this dispute commenced or was anticipated.

The construction of the hall was completed in 1971. A draft constitution for an association was prepared by the plaintiff at some time around 1971-1974 but it was never adopted.

In 1987 McNab & McNab, solicitors, were involved in the preparation of draft rules for a proposed Santiniketan Park Association Incorporated and were in communication with the plaintiff for that purpose but nothing further eventuated.

In or about 1987, the plaintiff severed all contacts with the group or the association.

The foregoing account of the background facts is a composite of the evidence called but heavily based on the evidence of the plaintiff himself. Understandably, none of the witnesses had a particularly good recollection of dates and details of events some thirty years ago.

I found the plaintiff to be an honest witness but his evidence was coloured by a degree of animosity and he was not unaware of the issues. In addition, the reliability of his evidence must be suspect having regard to his evidence as to his long-standing medical condition, frequent illnesses, various treatments which he received over the years (including drugs such as LSD and electro-convulsive therapy) and his leucotomies in about mid-1968 and November 1969 during the very time in which the Ferny Creek land was purchased and the construction of the hall was planned.

The plaintiff called his estranged wife, Barbara Jean Kibby, whose evidence added little to the picture. However, as a regular attender of meetings from about 1966 (until some time in the 1980s), she was able to say that the first time she heard the name "Santiniketan Park Association" was "when the hall had been built and there was a notice on the gate". She then attempted to clarify that:

"Q: Then did you for a period, were you involved in the meetings under that name or under The Family name? A: No, it was called - the hall was called Santiniketan Park and...

Yes, the hall was called Santiniketan Park, after the hall was built, and then after that it was called - well, I mean, as I say, I had no - I was just sort of one of the members so I don't know. But from the time it was called - it was just sort of, to outside people, like not in the group as such, we didn't ever call ourselves the Santiniketan Park Association but I guess - well, we just thought of ourselves as The Family. But I guess - yes, that's it."

The plaintiff also called Mrs Joanne Elizabeth Speers, another former member, who gave the following answers:

"Q: And can you tell the court - one of the parties in this proceedings is the Santiniketan Park Association? A: Yes. Q: Did you become aware of that identity at some stage during your involvement? A: We were possibly never given privy to the fact that that is what it was called, Your Honour. It was a group of people that worshipped at a particular place and we knew there were five or six trustees which were appointed at the time when they were raising money to establish the hall, as it was called."

The second defendant called Donald Ian Webb, a retired architect and an officer of the incorporated association. He said that:

"When we bought the land... we decided to name the new property and the association Santiniketan Park. That was the property and the association was Santiniketan Park Association... I can't recall how it started but it became a generally agreed name."

Mr Webb said that it was his "guess" or "feeling" that the bank account was opened "probably the late 60s or maybe 1970, but about then, when the land was purchased and the building erected".

The second defendant called David Charles Wallace Cook, an osteopath, and a member of the incorporated Association who in 1968 had been involved in the group and a real estate sub-agent who found the Ferny Creek land and had acted for the vendor. The whole commission was paid to him and he allowed it to be used as the preliminary deposit on the purchase. He said that the name came into being when the steering group was formed to find the land. He said that there was no membership per se, membership was by invitation through Dr Johnson. He said that members were brought in by friendship and that membership was very fluid but there was a regular core who had attended lectures for over 30 years.

The second defendant also called James Roland Buchanan (who carried on business as an architect under his birth name of Peter Lyall) and had been involved in the group since the late 1960s. Looking at the list of members as at 30 July 1994 (Exhibit 10) he said that the "vast majority" on the list had been regular attendees since the erection of the hall.

I have already referred to the evidence of Mr Macfarlane.

Most, if not all, of the second defendant's witnesses asserted that there was an unbroken continuity and identity between the unincorporated association and the incorporated Association but there was no consensus as to when the unincorporated association had been formed or commenced. Certainly the Ferny Creek land has been used continuously by the "association" since the hall was built and is still so used.

The characteristics of an unincorporated association

The Act provides no particular guidance as to the nature of an association apart from the definition in s. 3(1) but there is no reason to suppose that the Act narrows the legal concept of an association apart from the requirement that it have not less than five members. A number of cases contain statements as to the nature of an unincorporated association and, provided that account is taken of any statutory or other special context, those statements are of assistance in the present case.

An association has of course no separate or distinct existence apart from its members. It is a voluntary combination of persons with some object or purpose in common (see Amos v. Brunton (1897) 18 NSWR (Eq) 184, 186-7). If the association "has" assets, they belong, subject to the rules, to the members for the time being (see Doust v Attorney-General (1904) 4 SR (NSW) 577, 583). The rules do not necessarily constitute an enforceable contract between the members (Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358) but compare In re Sick and Funeral Society [1973] 1 Ch 51, 59-60 per Megarry J).

In Watson & J v A.G. Johnson Ltd [1936] HCA 73; (1936) 55 CLR 63, Latham CJ said, speaking specifically of clubs (at p.67):

"The club in question is what is known as a members' club and it accordingly has no juristic existence apart from its members. What is called a profit of the club really consists of moneys paid by members into a common fund and remaining unexpended in the fund. A club is, as Griffith C.J. said in Bohemians Club v. Acting Federal Commissioner of Taxation, `a voluntary association of persons who agree to maintain for their common personal benefit, and not for profit, an establishment the expenses of which are to be defrayed' by contributions made by these persons."

"It appears that the Loxton Club is what is known as a members' club. Its rules provide that the property and effects of the club shall be vested in three trustees in trust for the members for the time being, and that all concerns of the club except such as are in the hands of the trustees shall be managed and controlled by its committee. The club is not a juristic entity: it is not even a partnership, it is simply a voluntary association of a number of persons for the purpose of affording its members and their friends facilities for social intercourse and recreation, and the usual privileges, advantages and accommodation of a club. The property acquired for or arising from the conduct of the club, though vested in trustees, belongs to the general body of members. The interest, however, of each member in the general assets of the club exists only during membership, and is not transmissible: it is a right of admission to and enjoyment of the club while it continues (Wertheimer, Law Relating to Clubs 5th ed. (1935), pp.1, 22)."

In Re Thackrah [1939] 2 All ER 4,6, Bennett J said: "Before one can find an association, there must be some rules either written or oral, by which those who are supposed to be members of it are tied together. I think that they would probably be written rules. There must be some constitution". An unincorporated society has been referred to as a "group of people defined and bound together by rules and called by a distinctive name" (see In re Price [1943] 1 Ch 422, 428 per Cohen J referring to a speech of Lord Buckmaster in Macaulay v O'Donnell).

On the other hand, Lord President Clyde in Twycross v Potts [1928] SC 633 at 635, whilst deciding that the words "company association or partnership" in Part VIII of the Companies (Consolidation) Act 1908 (relating to winding-up) referred to bodies "constituted by some species of contract of society", said that "No doubt the word `association' is by itself capable of including a wide variety of much more loosely and irregularly constituted bodies of persons" in contexts other than the Companies Acts.

In Conservative and Unionist Central Office v Burrell [1980] 3 All ER 42, 58 Vinelott J dealt with a submission that there were six characteristics which were either essential or normal characteristics of an unincorporated association:

(ii) there must be a contract binding the members inter se;

(iii) there will normally be some constitutional arrangement for meetings of members and for the appointment of committees and officers;

(iv) a member will normally be free to join or leave the association at will;

(v) the association will normally continue in existence independently of any change that may occur in the composition of the association;

(vi) there must as a matter of history have been a moment in time when a number of persons combined or banded together to form the association.

Vinelott J considered that (iii), (iv) and (v) were not essential characteristics but that (i) and (ii) were essential characteristics and "no more than an analysis of the concept of an unincorporated association". Vinelott J went on to say that:

"The sixth characteristic is, I think, also a necessary characteristic of an unincorporated association. If an unincorporated association is a `group of people defined and bound together by rules and called by a distinctive name' (see per Lord Buckmaster in Re Macaulay's Estate...) there must have been a moment in time when the first members agreed expressly or impliedly to be bound by the rules. But in practice the task of answering the question whether a body with a distinctive name is an unincorporated association will rarely if ever be much assisted by asking when it came into existence. In many if not most cases an unincorporated association will have been gradually transformed over a period of time into something very different from the unincorporated association from which it grew, and it may well be impossible to ascertain either the date of its formation of the moment in time in this process of change when it assumed its distinctive contemporary character."

(The case involved taxation legislation and it is unnecessary to refer to the facts - an appeal was dismissed: [1981] EWCA Civ 2; [1982] 2 All ER 1).

In City of Gosnells v Roberts (1994) 12 WAR 437, in a decision of the Full Court of the Supreme Court of Western Australia and whilst considering a question of the tortious liability of office bearers of a club, Pidgeon J said (at 443):

"The first ground of appeal under this head, which I will consider, is that the trial judge should have held that the Gosnells Polocrosse Club was not incorporated, had no constitution, and was not a legal entity and consequently no finding of negligence or breach of occupier's duty could be made against the club or against any of its officials. In my view, the proper conclusion on the evidence is that the body did exist as an unincorporated association. The evidence showed the existence of a group of persons carrying on an activity under the name of the Gosnells Polocrosse Club. It had a bank account and it held meetings and the activities it pursued were determined at these meetings. These facts are apparent from the club's minute book (Exhibit RFD1). The common law relating to the conduct of meetings would apply in respect of these meetings and the moneys in the bank account would be held on trust to carry out the activity of the club as determined by these meetings. Any liability which such group would have towards other persons would not be extinguished merely because it did not have a written constitution and the trial judge recognised this. I consider it clear from the evidence that the body of persons authorised the playing of polocrosse and the committee was authorised to spend the funds of the body for that purpose."

In contrast, Anderson J said in that case (at 448):

"The `club' had no constitution and no rules. It did not therefore have the essential characteristic of an unincorporated association, ie, a composite body of persons in `a legal relationship... giving rise to joint rights or obligations or mutual rights and duties': see Re Commonwealth Homes & Investment Co Ltd [1943] SASR 211 at 228, per Mayo J. See also Bohemians Club v Acting Commissioner of Taxation(Cth) [1918] HCA 16; (1918) 24 CLR 334 at 337, per Griffiths CJ. There was a mere aggregation of persons not in any legal relationship, not bound together by any identifiable consensual arrangement and not defined by any constitution."

A selection of definitions from the Shorter Oxford English Dictionary points to the tautology or circularity involved in the s. 3(1) definition of "association":

"a body of persons associated for a common purpose";

"a number of persons associated together by the same common interest or purpose";

"an association of persons interested in the promotion of some object;

"an association of persons formed mainly for social purposes";

"an establishment, organisation, or association instituted for the promotion of some object";

In the light of the judicial statements to which I have referred and the ordinary meaning of the words contained in the said definition, I consider that the essence of an "association" may be described as some form of combination of persons (with a common interest or purpose) with a degree of organisation and continuity at least sufficient to distinguish the combination from an amorphous or fluctuating group of individuals and with some clear criteria or method for the identification of its members.

I do not think that a name or title, or the existence of a written constitution or rules governing the combination, or the existence of some form of contract between the members, is an essential characteristic, but clearly the existence of one or more of these would go a long way towards satisfying the need for some degree of organisation and continuity and for the satisfactory identification of members. Likewise, the existence of office-bearers, a committee and a bank account are relevant to a degree of organisation. The absence of all of these features makes it unlikely, but not impossible, that an association has been formed or is being carried on.

In Mune v Centro Argentino of Victoria Inc. [1996] VicRp 59; [1996] 2 VR 82, the ultimate and critical issue before the Court of Appeal was whether the incorporated association was the true successor of the unincorporated body Centro Argentino de Victoria and thus entitled to have vested in it all property held on trust for the unincorporated association by reason of the operation of s. 8 of the Act. One question considered by the court was whether the certificate of incorporation conclusively established that the incorporated association was the true successor to the unincorporated body and the court held that it did not. The other conclusion reached by the court was that, once resort was had to the evidence before the trial judge, the evidence did not prove that the body of persons who were incorporated were one and the same as the unincorporated body known as Centro Argentino de Victoria because it was not shown that a majority of the members of the unincorporated body had authorised the application for incorporation or even that all those who met and voted to be incorporated were members of the unincorporated body (per Ormiston JA at p.94; per Hayne JA at p.95).

In Mune v Centro Argentino it was clear on the evidence that there was or had been an unincorporated body with a constitution, members and a committee (albeit that the records of membership and payment of fees were in disarray) in favour of which (apparently) a declaration of trust of certain land had been executed. The question was whether that was the body which had been incorporated.

In the present case, as I see it, the crucial question is a different one. It is whether an unincorporated association existed at the time of the transfer of land in June 1968 (or prior to registration of the proprietors in September 1968) and whether, if so, the transferees took the transfer of the Ferny Creek land or came to hold that land on trust for that unincorporated association or otherwise for or on its behalf or for any of its purposes. The next question is whether that unincorporated body is the same association as that which became incorporated.

Did an unincorporated association exist in 1968?

In the present case, on the whole of the evidence, I am not satisfied on the balance of probabilities that there was any association at the date of the transfer of the Ferny Creek land to the present registered proprietors or at the time of their registration as proprietors or at any time in 1968. There was no constitution or rules or any form of contract between the attendees at meetings in the little chapel. I am not satisfied that any name or title was adopted prior to 1969-1970. I am not satisfied that there were any office-bearers, any general committee or any bank account prior to 1969-1970. I do not think that the group was any more than a fluctuating group of individuals prior to that time. Importantly, although many persons were introduced, and some were even "initiated", into the group, I am not satisfied that there was any consensus as to the criteria for or identification of members. Indeed, I am not persuaded that there was any consensus as to, or concept of, "membership of an association" current in the group prior to the completion of the construction of the hall.

I do not think that the evidence shows that there was a combination of persons with a sufficient degree of organisation and continuity prior to 1969-1970 so as to indicate that an "association" had been formed or was being carried on.

Had I come to the conclusion that there was an association in existence in 1968, it would have been necessary to determine whether the registered proprietors of the Ferny Creek land held that land on trust for that association. That may have given rise to some difficulties, including procedural difficulties having regard to the possible non-joinder of interested parties or their representatives. However, it is unnecessary to consider those aspects.

I might have been satisfied, although the contrary is arguable, that by about 1969-1970 there was in existence an unincorporated association with the adopted name of the Santiniketan Park Association and with a recognised membership, office bearers, a committee and a bank account and with regular contributions to its funds being made by members. It is true that this association had no written rules or constitution and no membership list. However, by this time it would seem that the members were well known to each other and met regularly for the purpose of the common interests to which I have referred and a de facto organisation existed. A membership list was carefully compiled immediately prior to incorporation and I am satisfied that the list was generally accurate and that eighty percent of those listed had been members continuously since 1970. Assuming that an unincorporated association, the Santiniketan Park Association, existed in about 1969-1970, I would have been satisfied that it was the same unincorporated association which existed at the time of incorporation and was incorporated. I was satisfied on the evidence that a majority of members of the unincorporated association in 1994 gave the authority and approval referred to in s. 4(1) of the Act by reason of the requirements of s. 4(2) of the Act having been satisfied. Indeed, as to the last-mentioned matter, the contrary was not submitted by the plaintiff.

However, it was not contended by the second defendant that there was any basis for its vesting application to succeed if it proved that the same association had existed only since 1969 or 1970. Its case depended on proof that an association was formed or was carried on prior to the date of the instrument of transfer or at the latest by the date of registration in September 1968. That proof has not in my view been provided.

It follows that the second defendant has failed to establish the factual substratum necessary to justify the vesting application and has failed to establish that it is entitled to the making of any recordings in the Register vesting the land in it as sought by it pursuant to s. 9(1) of the Act.

That being so, it is not possible to decide any of the other claims by the plaintiff to an equitable interest in the Ferny Creek land or for any other relief because, as yet, the second defendant has not demonstrated that it has any right, title or interest in that land and thus may not be the appropriate defendant. I note also that the other surviving registered proprietors are not parties to this proceeding.

There will be a declaration that the second defendant is not entitled to be recorded as proprietor of the land described in Certificate of Title Volume 4668 Folio 495 pursuant to the application to the first defendant dated 29 April 1996. There will be an order that the second defendant pay the plaintiff's costs including reserved costs and the first defendant's costs (if any).

Incorporation Act 1981

Companies (Consolidation) Act 1908

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Judgment (96 paragraphs)

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