Wykrota v Polish Club Ltd [2020] NSWSC 239

Supreme Court New South Wales

Medium Neutral Citation: Wykrota v Polish Club Ltd [2020] NSWSC 239 Hearing dates: 13 March 2020 Date of orders: 13 March 2020 Decision date: 16 March 2020 Jurisdiction: Equity - Duty List Before: Stevenson J Decision: Proceedings to be dismissed Catchwords: ASSOCIATIONS AND CLUBS – registered club – extraordinary general meeting – resolution that property be "non-core property" – whether such resolution is one dealing with alienation of club's property – whether Associate Members of club entitled to vote – where any such entitlement made no difference to the outcome – whether validating order should be made under s 1322 of the Corporations Act 2001 (Cth) Legislation Cited: Registered Clubs Act 1976 (NSW) Corporations Act 2001 (Cth) Cases Cited: Di Carlo v Kashani-Malaki and Anor [2012] QCA 320; [2013] 2 Qd R 17 GPT RE Ltd v Lend Lease Real Estate Investments Ltd [2005] NSWSC 964 Moala v Free Wesleyan Church of Tonga in Australia (Victoria) Inc [2019] VSC 205 Steuart v Oliver (No 2) (1971) 18 FLR 83 Category: Principal judgment Parties: Mick Wykrota (Plaintiff) Polish Club Ltd (Defendant) Representation: Counsel: J M Ireland QC (Plaintiff) M T McCulloch SC with R W Notley (Defendant)

Solicitors: Hall and Wilcox (Plaintiff) Wotton Kearney (Defendant) File Number(s): 2020/65305 Publication restriction: Nil

Judgment 1. The plaintiff, Mr Mick Wykrota, is a member of the defendant, the Polish Club Ltd ("the Club"). 2. The Club is a company limited by guarantee and a registered club under the Registered Clubs Act 1976 (NSW) ("the Act"). 3. The Club is a licensed social club which caters primarily for the Polish community. 4. It is the registered proprietor of two adjoining properties at 73 and 75 Norton Street, Ashfield. The land at 73 Norton Street contains the Club's main facilities. The adjoining lot, 75 Norton Street, is the site of a car park and a burnt out building. 5. Section 41E(1) of the Act provides that a registered club must not dispose of any "core property" of the club unless, relevantly: Section 41E Disposal of real property by registered clubs (b) … the disposal has been approved at a general meeting of the ordinary members of the club at which a majority of the votes cast support the approval 1. "Core property" is defined in s 41E(6) of the Act as: …any real property owned or occupied by the club that comprises -- (a) the premises of the club, or (b) any facility provided by the club for the use of its members and their guests, or (c) any other property declared, by a resolution passed by a majority of the members present at a general meeting of the ordinary members of the club, to be core property of the club, but does not include any property referred to in paragraphs (a)-(c) that is declared, by a resolution passed by a majority of the members present at a general meeting of the ordinary members of the club, not to be core property of the club. 1. The Club has previously resolved that its land at 75 Norton Street (the car park) not be "core property". 2. The present controversy concerns a purported resolution made on 1 March 2020 that the land at 73 Norton Street (on which the club building itself is erected) not be "core property". 3. On 1 February 2020, the Club sent to its members notice of an extraordinary general meeting ("the Notice") to be held on 1 March 2020 at 3:00pm ("the EGM"). 4. The Notice identified that two resolutions would be considered at the EGM: 1. an "ordinary resolution" as follows: "That for the purposes of section 41J [sic 41E] of the Registered Clubs Act the members hereby declare the land and facilities at 73 Norton Street, Ashfield (existing Club) to be non-core property of the Club." ("the First Resolution") 1. a "special resolution" or "extraordinary resolution" as follows: "That in accordance with Rule 49 of the Polish Club Limited's constitution the members hereby declare approval for the Board of Directors to proceed with the proposed agreement with Deicorp to develop both 73 and 75 Norton Street Ashfield." ("the Second Resolution") 1. The "proposed agreement with Diecorp" is one pursuant to which that entity proposes to redevelop the Norton Street properties in a manner that will include provision to the Club of new premises. 2. At the 1 March 2020 meeting the result of the voting on the First Resolution and the Second Resolution was as follows: TYPE OF VOTING FOR AGAINST ABSTRAINED INVALID TOTAL % OF "FOR" First Resolution 376 87 3 5 471 79.83% Second Resolution 365 87 2 1 455 80.22%