Kermits Child Care Centre and the Child Care Centres Association [1995] VSC 42; [1995] VICSC 42 (28 February 1995)

SUPREME COURT OF VICTORIA

KERMITS CHILD CARE CENTRE AND OTHERS AND THE CHILD CARE CENTRES ASSOCIATION
AND ANOTHER
No. 9226 of 1995
Number of pages - 2

COURT

SUPREME COURT OF VICTORIA
PRACTICE COURT
BEACH J

HEARING

MELBOURNE, 7 February 1995
28:2:1995

Counsel for the Plaintiffs C. Northrop

Solicitors for the Plaintiffs Middletons Moore and Bevins

Counsel for the Defendants N. O'Bryan

Solicitors for the Defendants Mashalls and Dent

ORDER

Orders made

DECISION

BEACH J When this matter was last before me it was contended by counsel for the defendants that I should refuse to make any order in favour of the plaintiffs because the defendants had made an open offer to the plaintiffs to resolve the dispute by holding fresh elections in February 1995. I have now considered the correspondence passing between the parties and relating to that offer.

2. The letter of 10 January 1995 from the defendants' solicitors to the plaintiffs' solicitors which contains the offer reads so far as is relevant:

"Our clients are naturally concerned to ensure that the

CCCAV's funds, which ought to be spent to the advantage of
all its members, are not needlessly expended on litigation.

To avoid this our clients are prepared to support a resolution
for a fresh election for all positions. However, they are
concerned that recent events, particularly the arguments
which marred the last two general meetings and the tension
between some members, will discourage many members from
attending a further election. Such a consequence would only
damage the CCCAV. To avoid this, our clients propose that the
constitution first be amended to allow a secret postal ballot
and, if amendment is required, the appointment of a returning
officer, who is not otherwise connected with the CCCAV, to
conduct the election.

Our clients make the following open offer:

(a) a fresh election will be held for all positions;
(b) for the purpose of that election only one nomination is
to be submitted by a member;
(c) before such election is held the constitution is to be
amended in the manner foreshadowed above;
(d) the proceedings are dismissed on the basis that your
clients pay their own costs and the defendants' costs are paid
from the Association's funds.

This offer is open to 5 p.m. on Friday, 13th January 1995.
Lest there be any uncertainty, the offer is not divisible
into parts."

3. In my opinion, the strings attached to that offer, and in particular the requirement relating to the alteration of the constitution, were such that it was not unreasonable for the plaintiffs to reject the offer.

4. In that situation I make the following orders in the proceeding:
1. I declare that the rules of the Association are the model rules as defined in the Associations Incorporation Act 1981.
2. I declare that the election of the officers of the Association and the ordinary members of the committee on 6 December 1994 is void. 3. I direct that the Secretary of the Association cause notice of general meeting of the Association to be sent to each member of the Association in accordance with the provisions of the model rules, such meeting to take place no later than 31 March 1995.

5. It is clear from my reasons for judgment that it will be necessary for fresh nominations to be lodged by those seeking office. Although I have declared that the election held on 6 December 1994 is void, I direct that the office bearers elected at that meeting continue to conduct the affairs of the Association pending the fresh election of office bearers and ordinary members of the committee.

6. It would seem to me that the circumstances of this case are such as not to require the making of any order as to the costs of the proceeding. The plaintiffs' representatives were misled by the omission from the document accompanying the notice of annual general meeting of subclause 6 of clause 25 of the model rules into lodging multiple nominations. The second-named defendant did not inform them of the problem until it was too late for them to lodge fresh nominations. On the other hand, the defendants have succeeded in establishing that the rules of the Association are the model rules, not the original rules. In such a situation I consider justice dictates that each party be left to bear their or her own costs of the litigation.