Correa v Whittingham [2013] NSWCA 263

Correa v Whittingham [2013] NSWCA 263

The appointment of Mr Whittingham as voluntary administrator of The Spanish Club Limited was invalid, as he had not secured the approval of the Authority as required by s 41 of the Registered Clubs Act prior to appointment; such contravention renders a person incapable of being appointed. The curative powers under s 447A of the Corporations Act do not, as a matter of law, permit cure of an invalidity arising from contravention of this State Act. Complaints as to irregularities under the Club's constitution and s 448A of the Corporations Act, while established in part, could be cured by statutory means but were ultimately overtaken by the fatal invalidity under the State law. The case was...

Parties
First Appellant: Dolores Correa; Second Appellant: The Spanish Club Limited (Subject to a Deed of Company Arrangement); Respondent: Kenneth Michael Whittingham
Jurisdiction
Australia
Judgment Date
15 August 2013
Procedural Posture
Appeal / Court of Appeal Decision
Outcome
Appeal allowed
Legal Topics
Voluntary Administration, Validity of Administrator Appointment, Curative Orders, Registered Clubs Act S 41, Corporations Act Ss 128, 129, 447 a, 448 a, 1322, Statutory Assumptions, Member Approval for Core Property Sale
Corporations Law Insolvency Law Statutory Interpretation Voluntary Administration Validity of Administrator Appointment Curative Orders Registered Clubs Act S 41 Corporations Act Ss 128, 129, 447 A, 448 A, 1322 +2 more

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Parties

Dolores Correa

First Appellant

The Spanish Club Limited (Subject to a Deed of Company Arrangement)

Second Appellant

Kenneth Michael Whittingham

Respondent

Procedural Posture

Appeal / Court of Appeal Decision

Legal Issues

  1. 1 Whether administrator was validly appointed given contravention of s 41 of the Registered Clubs Act 1976 (NSW)
  2. 2 Whether the Court had power under s 447A of the Corporations Act to cure appointment invalidity arising from State law contravention
  3. 3 Whether statutory assumptions in ss 128 and 129 of the Corporations Act protect administrator against defects in Club's internal management

Ratio Decidendi

The appointment of Mr Whittingham as voluntary administrator of The Spanish Club Limited was invalid, as he had not secured the approval of the Authority as required by s 41 of the Registered Clubs Act prior to appointment; such contravention renders a person incapable of being appointed. The curative powers under s 447A of the Corporations Act do not, as a matter of law, permit cure of an invalidity arising from contravention of this State Act. Complaints as to irregularities under the Club's constitution and s 448A of the Corporations Act, while established in part, could be cured by statutory means but were ultimately overtaken by the fatal invalidity under the State law. The case was...

Court Disposition

Appeal allowed

Orders

  • Grant leave to the respondent to file the notice of contention dated 17 May 2013.
  • Appeal allowed.