Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council & Ors; Hillig v Darkinjung Pty Ltd & Ors; Darkinjung Local Aboriginal Land Council v Warner & Ors [2006] NSWSC 1008

New South Wales Supreme Court

CITATION : Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council & Ors; Hillig v Darkinjung Pty Ltd & Ors; Darkinjung Local Aboriginal Land Council v Warner & Ors [2006] NSWSC 1008 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 25/07/06, 26/07/06, 27/7/06, 28/7/06, 08/08/06, 09/08/06, 29/08/06, 30/08/06, 31/08/06, 01/09/06, 05/09/06, 06/09/06, 07/09/06 Written submissions: 13/09/06, 15/09/06, 18/09/06, 22/9/06

JUDGMENT DATE : 3 October 2006

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Barrett J

DECISION : Submissions to be made as to consequences of findings that (a) payments by Darkinjung Local Aboriginal Land Council to Darkinjung Pty Ltd were beyond statutory authority and capacity of land council; (b) such payments were made for improper purpose; and (c) payments by Darkinjung Pty Ltd, ostensibly as trustee of charitable trust, to enterprise companies were not in furtherance of charitable purpose and did not involve distribution in conformity with trust instrument. In relation to voluntary administration of each of Darkinjung Funeral Fund Pty Ltd, Darkinjung Housing Pty Ltd and Darkinjung Projects Pty Ltd, declaration that appointment of administrators invalid, void and of no effect

CATCHWORDS : ABORIGINALS AND TORRES STRAIT ISLANDERS - local Aboriginal land council constituted under State law - authority and capacity as a statutory corporation - statutory objects, functions, powers, duties and responsibilities - CORPORATIONS - statutory corporations - delineating authority and capacity by reference to objects, functions and powers - duty to administer property within confines of statutory scheme - whether ultra vires to transfer property to charitable trust benefiting relevant Aboriginal group - whether transfer authorised by appropriate corporate action - TRUSTS AND TRUSTEES - charitable trusts - property held on trust for purpose of benefiting Aboriginal group "by doing" certain acts - extent to which purpose charitable - whether application of funds to enterprises is within charitable purpose - whether power to apply and distribute income and capital permits loans to enterprises - CORPORATIONS - voluntary administration - whether directors formed genuine opinion as to insolvency or likely insolvency - whether resort to Part 5.3A for improper purpose