Corporate Affairs Commission (SA) v Australian Central Credit Union [1985] HCA 64

High Court of Australia Mason A.C.J. Wilson, Brennan, Deane and Dawson JJ. Corporate Affairs Commission (SA) v Australian Central Credit Union [1985] HCA 64

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 3 Mason A.C.J., Wilson, Deane and Dawson JJ.

The Australian Central Credit Union ("A.C.C.U.") is a credit union incorporated and registered under the provisions of the Credit Unions Act 1976 S.A.. It is the product of the merger of three previously independent credit unions and, at relevant times, has had about 23,000 members. After that merger had been effected, A.C.C.U. wished to acquire new headquarters in Adelaide. It entered into a contract for the purchase of all of the issued shares in a company, 70 Light Square Pty. Ltd., which owned land in Light Square, Adelaide, on which a building was in the course of construction. The building was being built by the vendor of the shares to A.C.C.U. and, under the contract, the vendor undertook to complete it. A.C.C.U. proposed that, upon completion of the purchase of the shares, the premises would be held in trust for a unit trust in which A.C.C.U. would initially hold all the units. What is important for present purposes is that A.C.C.U. also proposed to offer a proportion of the units in that unit trust to its members (and only its members) for purchase.

The total consideration payable by A.C.C.U. under the contract for the purchase of the shares and completion of the building was approximately $4.4m. That amount exceeded 5 per cent of the sum of A.C.C.U.'s paid-up share capital and the amounts held by it as deposits. That being so, the consent of the Registrar of Credit Unions to completion of the contract was required by s. 43(2) of the Credit Unions Act. The Registrar declined to give that consent unless A.C.C.U. obtained a declaration of the Supreme Court of South Australia to the effect that the proposed offer by A.C.C.U. of the units to its members for purchase would not amount to an offer "to the public" for subscription or purchase of a prescribed interest in contravention of the provisions of s. 169 of the Companies (South Australia) Code ("the Code").