[1996] 2 VR 82
MUNE v CENTRO ARGENTINO INC
SUPREME COURT OF VICTORIA COURT OF APPEAL
WINNEKE P, ORMISTON and HAYNE JJA
7 September, 05 October 1995
Associations and clubs — Evidence — Unincorporated associations — Incorporation — Certificate of incorporation — Whether conclusive evidence
that incorporated body is successor to unincorporated association — Vesting
of property in incorporated association — Associations Incorporation Act 1981
(No 9713) s4, s7, s8, s42, s44.
.
Members of an unincorporated association contributed money for the purchase
of land which was held by four of the contributors as trustees under a
declaration of trust on behalf of the association's membership. Four years
later the respondent was incorporated pursuant to the Associations
Incorporation Act 1981 on the application of a person purporting to be the
secretary of the unincorporated association. Differences arose between
members of the association as to the use of the land and the trustees and
other contributors were unwilling to allow the land to vest in the
respondent. The respondent lodged a caveat over the land and issued
proceedings seeking a declaration that the land had vested in it pursuant to
s8 of the Associations Incorporation Act. The trustees applied to remove the
caveat. A judge of the County Court held that the respondent's certificate of
incorporation was conclusive evidence of the fact that the respondent was the
successor to the unincorporated association. The judge declared that the land
had vested in the respondent and dismissed the trustees' application for
removal of the caveat. The trustees appealed.
HELD, allowing the appeals: (1) Under s44(2) of the Associations
Incorporation Act 1981, the respondent's certificate of incorporation was
conclusive evidence of the fact of its incorporation, but not conclusive
evidence that it was the successor to the unincorporated association.
(2) Although it was open to the court to consider the circumstances leading
to incorporation in considering whether the certificate of incorporation had
been granted in respect of the unincorporated association, it was
impermissible under s44(2) of the Associations Incorporation Act to consider
the application documents as a means of treating the certificate of
incorporation as implicitly stating, and thereby conclusively proving, that
the respondent was the successor to the unincorporated association.
(3) There being no evidence before the court that the unincorporated
association was the same body which applied for incorporation and became the
respondent, it could not be held that the unincorporated association's
property had vested in the respondent pursuant to s8 of the Associations
Incorporation Act.
Decisions of the County Court given on 16 April 1993 and 26 May 1993
reversed.
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[1996] 2 VR 82
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