Howie v Royal New South Wales Canine Council Limited [2006] NSWSC 565

New South Wales Supreme Court

CITATION : Howie v Royal New South Wales Canine Council Limited [2006] NSWSC 565

HEARING DATE(S) : 07/06/06

JUDGMENT DATE : 14 June 2006

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Barrett J

DECISION : Plaintiff's claim for declaration that he has been elected dismissed

CATCHWORDS : CORPORATIONS - directors - election of directors - certain directors required to retire at annual general meeting - procedures for election - whether election occurs when ballot (or default procedure) completed or when vacancy to be filled arises by retirement - deadline for nominations - fixing by board - whether board has power to fix second or subsequent deadline - turns on particular provisions not commonly encountered in company constitutions - no question of principle

LEGISLATION CITED : Interpretation Act 1987, s.48(1)

Advance Bank Australia Ltd v FAI Insurances Ltd (1987) 12 ACLR 118 CASES CITED : Ditcher v Denison (1856) 11 Moore PC 325 North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146

PARTIES : Garry John Howie - Plaintiff Royal New South Wales Canine Council Limited - Defendant

FILE NUMBER(S) : SC 2731/06

COUNSEL : Mr L.J. Ellison SC - Plaintiff Mr G. Lucarelli - Defendant

SOLICITORS : G.M. Ellison & Co - Plaintiff Gilbert + Tobin - Defendant

- 15 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

BARRETT J

WEDNESDAY, 14 JUNE 2006

2731/06 GARRY JOHN HOWIE v ROYAL NEW SOUTH WALES CANINE COUNCIL LIMITED JUDGMENT 1 The facts are not in dispute and may be stated briefly. The defendant is a company limited by guarantee the objects of which are concerned with the pursuits of breeding and exhibiting of purebred dogs. The constitution of the defendant contains, in the usual way, provisions concerning the composition of its board of directors and the processes by which persons come to be directors and cease to be directors. 2 The defendant regularly issues to its members a publication called "Canine Journal". The February 2006 issue of that journal contained a notice calling for nominations of members for election to certain positions on the board of directors. The notice specified 3 pm on 3 March 2006 as the time by which nominations were to be lodged. Two nominations were lodged before that time in respect of one of the positions in question ("Director, Metropolitan Region"), being a nomination of the plaintiff and a nomination of Ms Davis. Ms Davis was already in office as a Metropolitan Region director but was subject to retirement under the constitution. Her nomination was accordingly a nomination for re-election. Ms Davis died on 9 April 2006. Subsequently, the defendant took steps, in accordance with a resolution of its board of directors passed on 12 April 2006, to call again through the "Canine Journal" for nominations for election to the position of Director, Metropolitan Region. A second notice was published. It referred to the situation that had arisen with respect to Ms Davis and said: "Under the circumstances, the Board has decided to reopen nominations for the 2006 Board of Directors Election for the Metropolitan Region. Previous nominees will not need to renominate. Their nomination will still stand. Members seeking selection will be required to reside in the Metropolitan Region and will also be required to be a financial member of RNSWCC. It will also be necessary to be nominated by two (2) financial members of RNSWCC who also must reside in the Metropolitan Region. Nomination forms are available from RNSWCC, PO Box 832, St Marys NSW 1790 or h.hudson@rnswcc.org.au and must be lodged with the Secretary of the RNSWCC on or before 12 noon on Friday 30 June 2006." 3 By his summons filed on 15 May 2006, the plaintiff claims the following relief: "1. A Declaration the Defendant's resolution passed 12 April 2006 purporting to reopen nominations for the position of Director (Metropolitan Region) is invalid. 2. A Declaration the re-opening of nominations by the Defendant for the Board of Directors Election 2006 Metropolitan Region and all actions consequential thereupon are invalid. 3. A Declaration GARRY JOHN HOWIE is elected to the position of Director Metropolitan Region of the Defendant." 4 It is necessary to set out certain provisions of the defendant's constitution: