The Qld Supreme Court has held that s 91(2) of the Associations Incorporation Act 1981 (Qld) (“AIA”) does not pick up and apply Pt 5.7B of the Corporations Act 2001, including s 588FF(1)(a), to the winding up of an incorporated association.
The Court said when an association incorporated under the AIA is ordered to be wound up by the court, s 91(2) of the AIA provides, in effect, that the winding up is to be done in accordance with the provisions of Pt 5.7 of the Corporations Act. The dispute between the parties in this case was whether s 91(2) thereby picks up and applies the provisions of Pt 5.7B of the Corporations Act to the winding up of an incorporated association. The Court said the plaintiffs’ claim depended on the conclusion that it does.
The second plaintiff, the Regional Community Association Incorporated (ABN 91 076 047 780), was incorporated in May 1994 as an association under the AIA. It was ordered to be wound up in August 2013. The first plaintiffs alleged that the Association made payments in reduction of its taxation liabilities to the Tax Commissioner, and the first plaintiffs alleged that such payments were also unfair preferences pursuant to the Corporations Act. The plaintiffs claimed from the Tax Commissioner the sum of id=”mce_marker”17,616.00 as an unfair preference. The plaintiffs and the defendant applied for an order for the decision of a question separately before the trial of the proceeding, in effect whether the provisions of Pt 5.7B of the Corporations Act, including s 588FF, applied in the winding up of the second plaintiff, as an incorporated association.
The Court concluded that, properly construed, s 91(2) of the AIA does not pick up and apply Pt 5.7B of the Corporations Act, including s 588FF(1)(a), to the winding up of an incorporated association under s 90 of the AIA, because neither s 582 nor s 583 of the Corporations Act applies Pt 5.7 or s 588FF to a Part 5.7 body in the first place. In the result, the Court declared that Pt 5.7B of the Corporations Act 2001, including s 588FF(1), did not apply in the winding up of the Regional Community Association Incorporated (ABN 91 076 047 780).
(Robson & Ors v FCT [2015] QSC 76, Qld Supreme Court, Jackson J, 27 April 2015.)
[LTN 79, 28/4/15]