Ding v Sylvania Waterways [1999] NSWSC 58

Ding v Sylvania Waterways [1999] NSWSC 58

An amendment to a company's constitution post-membership, which imposes an additional annual levy or pecuniary liability, is not binding on existing members who have not individually agreed in writing to be so bound, pursuant to s.140(2)(b) of the Corporations Law. Article 103(1) is therefore not enforceable against the plaintiffs unless they have given such written agreement. Article 102(8), on proper construction, only permits a single fee upon becoming a member, not recurring or subsequent fees.

Jurisdiction
Australia
Judgment Date
15 February 1999
Procedural Posture
Civil / Judgment After Final Hearing
Outcome
Judgment for the plaintiffs
Legal Topics
['amendment to Company Constitution' 'imposition of Levies' "members' Liability" 'limited Liability' 'company Law']
['corporations Law' 'equity'] ['amendment to Company Constitution' 'imposition of Levies' "members' Liability" 'limited Liability' 'company Law']

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Procedural Posture

Civil / Judgment After Final Hearing

Legal Issues

  1. 1 ['Whether a company constitution can be amended to impose a pecuniary liability (annual levy) on non-consenting members under the Corporations Law' "Proper construction of Articles 103(1) and 102(8) of the defendant's constitution" 'Effect of s.140(2)(b) Corporations Law on increased pecuniary liability by amendment of constitution']

Ratio Decidendi

An amendment to a company's constitution post-membership, which imposes an additional annual levy or pecuniary liability, is not binding on existing members who have not individually agreed in writing to be so bound, pursuant to s.140(2)(b) of the Corporations Law. Article 103(1) is therefore not enforceable against the plaintiffs unless they have given such written agreement. Article 102(8), on proper construction, only permits a single fee upon becoming a member, not recurring or subsequent fees.

Court Disposition

Judgment for the plaintiffs

Orders

  • ['Declaratory order that plaintiffs are not bound to pay a levy fixed under Article 103(1), except for any plaintiff who has agreed in writing to be bound by the adoption of Article 103(1).' 'Declaratory orders that Article 102(8) permits only a one-off fee on becoming a member and does not authorise further charges...