In the matter of Employees of BHP Mutual Benefits Fund [2013] NSWSC 1497

In the matter of Employees of BHP Mutual Benefits Fund [2013] NSWSC 1497

The Fund qualifies as a Part 5.7 body under Corporations Act 2001 (Cth) and cannot be administered in accordance with its Rules due to lack of a properly constituted committee; it is just and equitable to order winding up. Plaintiff is excused for breaches relating to honorarium. Distribution to members at winding up should be equal, not proportionate or charitable.

Parties
Plaintiff: Lance John Jenkins
Jurisdiction
Australia
Judgment Date
15 October 2013
Procedural Posture
Application for Judicial Advice and Winding Up / Principal Judgment
Outcome
Association wound up. Liquidator appointed. Trustee excused for breaches.
Legal Topics
Winding Up Unincorporated Associations, Trustee Breach and Relief, Distribution of Association Assets, Liquidator Appointment
Equity Trusts Corporations Winding Up Unincorporated Associations Trustee Breach and Relief Distribution of Association Assets Liquidator Appointment

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Parties

Lance John Jenkins

Plaintiff

Procedural Posture

Application for Judicial Advice and Winding Up / Principal Judgment

Legal Issues

  1. 1 Whether the Court has power to wind up an unincorporated association under Corporations Act 2001 (Cth), Pt 5.7
  2. 2 Whether Committee had power to amend Fund Rules to create a charitable trust
  3. 3 How Fund assets should be distributed upon winding up – equal or proportionate basis

Ratio Decidendi

The Fund qualifies as a Part 5.7 body under Corporations Act 2001 (Cth) and cannot be administered in accordance with its Rules due to lack of a properly constituted committee; it is just and equitable to order winding up. Plaintiff is excused for breaches relating to honorarium. Distribution to members at winding up should be equal, not proportionate or charitable.

Court Disposition

Association wound up. Liquidator appointed. Trustee excused for breaches.

Orders

  • Plaintiff relieved from liability for breach of trust regarding honorarium payments under Trustee Act 1925 s 85.
  • Fund be wound up under Corporations Act 2001 (Cth) s 583(c)(ii).