On 3/09/2013 5:04 PM, Chris Samuel wrote:

The Consumer Affairs website says that if you have not notified them that you will be using your own locally determined rules by November 26th then the new model rules will apply to you whether you want them or not.

This applies to LUV too of course.

So, for the immediate requirements, a simple notice to Consumer Affairs will resolve the issue of old vs new rules. If the rules need further adjustment, then a special AGM-like meeting after some online discussion would be in order. Cheers AndrewM

Quoting Lev Lafayette (lev@levlafayette.com):

In an unincorporated association individual members are liable for debts of the organisation, and can be sued etc for actions of the association.

{sigh} So can the individual members of an incorporated association, except that finanicial liability is in the _general_ case limited to the net assets of the corporation. The important thing to note about the 'corporate liability shield'[1] is that it covers _only_ liability arising -merely- from ownership. It offers no protection whatsoever from liability for deeds in which one has taken part (or is alleged to have take part). I stress that point because I've noticed there's a very common (and, I would say, pernicious) misconception about incorporation being a magic talisman against legal liability. It is widely believed -- in error -- that the same deeds under a corporate umbrella are somehow rendered safer. This is a dangerously false belief: Corporate entity or no corporate entity, people face potential liability arising from what they _do_ (or are alleged in court to have done). There is no way around that.

Incorporation (whether independently or as a subcommittee of a larger organisation) means that the association can sue, be sued, hold and be liable for property, etc., in its own right.

{sigh} Unincorporated associations can own property. (Provably. I've already covered this.) The principals of an unicorporated association can sue or be sued.

"Incorporation" makes an association a "legal person" in terms of contractual law.

That is correct. That fact is, however, often vastly overinterpreted.

IANAL, but I have studied business and organisation law at the postgrad level. FWIW.

Likewise. [1] Necessary disclaimer: I am very conversant with USA and UK law on these matters, but not specifically with Australian law. The general nature of limited liability corporations, however, is broadly similar in many countries for obvious reasons of legal convergence and borrowings.

Quoting Lev Lafayette (lev@levlafayette.com):

...

Unincorporated associations can own property. (Provably. I've already covered this.)

Not here they can't.

So, I sell a biscuit to you and Russell Coker for AUS$1, naming you co-owners as the Melbourne Twins. There are witnesses to my sale. It is formalised, in fact, by a written contract, as biscuit sales are no light matter. A year later, I haul you into court seeking recovery of my (now rather stale) biscuit, asserting that I am still the owner of said carbohydrates because the Melbourne Twins are not a legally valid purchaser. You're saying I would prevail? Anyway, no, you are mistaken, and I've just looked up caselaw on the matter. What _is_ true, both in Australia and (to my knowledge) every other jurisdiction based on English common law, an unincorporated association is not a juristic entity, and is treated as the aggregate of all its members at any given time. However, in no way does it follow that they cannot own property. They can and do all the time. Watson v J & AG Johnson Limited (1936) 55 CLR 63 is one case you will want to read, which among other things affirmed and described the ownership of Loxton Club, Loxton, SA. You want closer to home? OK, in Freeman v McManus [1958] VR 15, the Victoria Supreme Court ruled that an unincorporated political association could lawfully enter into contracts binding on its members (albeit with pragmatic difficulties getting assent of those members). The ability to form binding contract leads directly to the right to own property as a necessary consequence. Up in Queensland, Rendall-Short v Grier [1980] Qd R 100 established that members had a 'proprietary right' in insisting on a committee of management applying income and property of the association in the promotion of its objects. In Leahy v A-G (NSW) [1959] AC 457 (Privy Council); (1959) 101 CLR 611 (High Court), the High Court agreed that a gift of real estate to an unincorporated order of nuns was valid despite the order's lack of juristic existence. The Privy Council overturned the gift on other grounds, but did not overrule the High Court on that point of property law. In Re Sick and Funeral Society of St Johns Sunday School, Golcar Dyson v Davies [1972] 2 All ER 439, the dispute concerned prepaid tuition fees paid to an unincorporated Sunday school -- property -- and its disposition unpon the Sick and Funeral Society's dissolution. The court ruled that all society members who had paid fees within the past three years were entitled to share in division of the Society's property. This holding was then cited a few years later in RE GKN Bolts & Nuts Ltd Sports & Social Club and Leek v Donkersley [1982] 2 All ER 855, to much the same effect. Yes, those are all Australian cases, and all are cited as precedent.

Quoting Daniel Jitnah (djitnah@greenwareit.com.au):

I think the distinction here is the following.

In the case of The Melbourne Twins, the biscuit is jointly owned by Lev and Russel, and this will always be Lev and Russel.

As I said, courts attribute, in a formal sense, any property owned by an unincorporate association to the aggregate of its members.

However if later on the Melbourne Twins became two other individuals, say Peter and Mary, and Lev and Russel cease to be The Melbourne Twins, it does not follow that the biscuits will belong to the new Melbourne Twins.

Actually, you missed the track. I stated that I sold it to an unincorporated association called the Melbourne Twins, not to Lev and Russel, and signed a formalised written contract to that effect. Read, among other cases, Watson v J & AG Johnson Limited (1936) 55 CLR 63, the one regarding Loxton Club is Loxton, South Australia. The court held that ownership of the club vested in the ongoing membership, not in the particular members who were in the club at the time the property was acquired. And I agree that this should be pusued on luv-talk if at all.

Quoting James Harper (james.harper@bendigoit.com.au):

It seems that one of you is giving bad/wrong legal information and advice...

I am always extremely careful to _never_ give legal advice. Doing so violates Unauthorised Practice of Law (UPL) statutes. Anyone needing to solve a real-world legal problem should consult a competent attorney accredited to the Bar in his/her jurisdiction, who will give professional advice tailored to the facts of the client's situation. By contrast, understanding and discussing principles and mechanics of law as a general proposition is not only the right of all citizens, but also an extremely good idea, if only to escape being mislead by pervasive misinformation. That is why I took pains to research and document the most _commonly_ heard misinformation in the Linux User Group HOWTO (particularly the 'Common Misconceptions Debunked' section).

I don't know which one as I'm not a lawyer.

First, _judges_ do, which is why I pointed to caselaw. Second, the other gentleman has at this point side-tracked onto trivia and is not disputing the substance of what I said. (Yes, I know, 'Welcome to the Internet.') Saying 'I cannot understand the law because I'm not a lawyer' is exactly what leads LUGs into following, as a said in the HOWTO, 'tragically bad advice' from people making fundamental errors -- like the people who told SVLUG members we desparately needed umbrella liability insurance when they didn't even understand liability, had never priced such insurance, and had no plan to acquire any. As a grimly stubborn believer in public education, I would like to see such nonsense rooted out.

On 03/09/13 19:28, Rick Moen wrote:

Unincorporated associations can own property.

There are a number of HPC centres and eResearch organisations around Australia that are UJVs (Unincorporated Joint Ventures) and as a result of them not being able to own property all "their" assets are actually owned by one (or more) of the members on their behalf. I can think of ones in VIC, ACT, NSW and SA and they are all in the same boat. Consumer Affairs Victoria says (regarding the initial 1981 act): http://www.consumer.vic.gov.au/library/publications/resources-and-education/... # The introduction of the Act addressed many of the difficulties faced # by unincorporated associations by providing a relatively simple # mechanism of incorporation which conferred the benefits of limited # liability of members, perpetual succession, ability to enter into # contracts, and power to acquire, hold and dispose of property. The SA govt says: http://www.lawhandbook.sa.gov.au/ch08s02.php # As an unincorporated association has no legal identity, it # cannot hold assets in its own name. It must appoint individuals # as trustees, who own the assets but hold them for the benefit of # the association. The trustees are bound by the Trustee Act 1936 (SA). NSW says similar (though not explicitly mentioning assets): http://www.legalanswers.sl.nsw.gov.au/guides/law_handbook/pdf/Ch9_community_... # Unless a community organisation takes the step of incorporating, # it is simply a group of people doing something together, with no # legal identity apart from that of its individual members. WA says: http://www.commerce.wa.gov.au/associationsguide/Content/01_Introduction/1.0_... # There are several significant advantages. One advantage is that # the individual members limit their exposure to personal legal # liability. Bank accounts can be opened in the name of the # association, it can apply for government grants and it can hold # property. cheers, Chris -- Chris Samuel : http://www.csamuel.org/ : Melbourne, VIC

Quoting Chris Samuel (chris@csamuel.org):

On 03/09/13 19:28, Rick Moen wrote:

...

Unincorporated associations can own property.

There are a number of HPC centres and eResearch organisations around Australia that are UJVs (Unincorporated Joint Ventures) and as a result of them not being able to own property all "their" assets are actually owned by one (or more) of the members on their behalf.

It is certainly more convenient in many cases for a member (or a formal trustee) to hold the association's property, but that doesn't mean the association is blocked from doing so by any impossibility.

Consumer Affairs Victoria says (regarding the initial 1981 act):

http://www.consumer.vic.gov.au/library/publications/resources-and-education/...

# The introduction of the Act addressed many of the difficulties faced # by unincorporated associations by providing a relatively simple # mechanism of incorporation which conferred the benefits of limited # liability of members, perpetual succession, ability to enter into # contracts, and power to acquire, hold and dispose of property.

As above.

The SA govt says:

http://www.lawhandbook.sa.gov.au/ch08s02.php

# As an unincorporated association has no legal identity, it # cannot hold assets in its own name. It must appoint individuals # as trustees, who own the assets but hold them for the benefit of # the association. The trustees are bound by the Trustee Act 1936 (SA).

This is mistaken. (Yes, shocking as it might seem, government officials sometimes say things that turn out not to be the case.) This is a (very frequent) miscontruing of the _real_ and relevant fact that an unincorporated association is not a juristic entity, i.e., it is not a legal _person_ with standing in court. But that merely means that it owns property through that ownership being attributed in a formal sense (by courts) to the aggregate of its members.

NSW says similar (though not explicitly mentioning assets):

http://www.legalanswers.sl.nsw.gov.au/guides/law_handbook/pdf/Ch9_community_...

# Unless a community organisation takes the step of incorporating, # it is simply a group of people doing something together, with no # legal identity apart from that of its individual members.

This agree with what I said.

WA says:

http://www.commerce.wa.gov.au/associationsguide/Content/01_Introduction/1.0_...

# There are several significant advantages. One advantage is that # the individual members limit their exposure to personal legal # liability. Bank accounts can be opened in the name of the # association, it can apply for government grants and it can hold # property.

Again, they are mistaken. (Don't take my word for it. Read the many Australian judges' legal opinions I've pointed to upthread.) I am sure that it may be difficult as a pragmatic matter to convince a bank to open a deposit account for an unincorporated association, as they might simply refuse on grounds of too much hassle. I doubt that any legal concern bars them from doing so. Please note: A classic general partnership is a particular limiting case of an unincorporated association (where the number of members is a small value of n and relatively stable[1]). I hope you would not assert that partnership are somehow unable to own property. [1] Many hours of my lift got lost to business law classes covering the mechanisms by which partnerships technically dissolve and instantly re-form any time a partner enters or leaves. If you never went through that, you didn't miss much.