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  • Unreported Judgment

Saxby v Saxby

 

[2019] QSC 102

SUPREME COURT OF QUEENSLAND

CITATION:

Saxby v Saxby & Ors [2019] QSC 102

PARTIES:

Sharon Saxby

(applicant)

v

Gavin Saxby

(first respondent)

and

Shaun Adams

(second respondent)

and

Francis McGrath

(third respondent)

FILE NO/S:

TS No 624 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

24 April 2019

DELIVERED AT:

Brisbane

HEARING DATE:

17 and 18 September 2018; Further submissions received 24 January 2019

JUDGE:

Brown J

ORDERS:

1. Each party bear their own costs of the application.

2. Property provided to Ms Horton on 23 August 2018 held by Ms Saxby as Secretary be returned to Ms Saxby within seven days of the date of this order.

3. The President and Secretary place in the papers and as an item on the agenda of the business for the next general meeting or the next Annual General Meeting, whichever occurs first, a copy of the decision of the Court dated 21 December 2018 and a copy of these reasons.

And the Court declares that:

Mr Shaun Adams as the SKAA representative appointed on 24 February 2018 was a member of the Executive of the Club and that his position was not validly terminated on 17 June 2018 or on 22 July 2018.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS

COUNSEL:

The applicant appeared on her own behalf

The first respondent appeared on his own behalf

No appearance for the second respondent

D T Forbes for the third respondent

SOLICITORS:

The applicant appeared on her own behalf

The first respondent appeared on his own behalf

No appearance for the second respondent

Mackey Wales for the third respondent

  1. [1]
    On 21 December 2018, I gave directions for the parties to make further submissions by 24 January 2019 as to costs and as to any further incidental relief sought by the parties arising out of the application and the reasons for judgment delivered on 21 December 2018.  Submissions were only received from Ms Sharon Saxby. Correspondence was received from Mr Frank McGrath’s solicitors saying that they had not received Ms Saxby’s submissions, although Ms Saxby said she had served the submissions upon Mr McGrath. No submissions were received from them, despite the Court delaying its consideration of the matter to allow them to obtain a copy of the submissions and respond if they chose to do so.

Costs 

  1. [2]
    Ms Saxby submits that the order that should be made is one where each party bears their own costs.  I consider that is the appropriate order given that each party had some measure of success and in other respects did not succeed.  Accordingly, I will order that each party in this matter bear their own costs.
  2. [3]
    Ms Saxby contends that Mr McGrath has had his legal costs paid for by the NQ Speedway Kart Club Inc and has sought orders from the Court that Mr McGrath is obliged to reimburse the Club for all of those costs given that he was not representing the Club. Mr McGrath did not appear on behalf of the Club in these proceedings and the Club was not represented at all due to the impasse that existed. While those fees may be recoverable by the Club if the allegation is found to be substantiated that would be a matter that would have to be pursued by the Club in separate proceedings. Ms Saxby also alleges that misrepresentations were made to the Court by Mr McGrath’s lawyers. Again, that is not a matter relevant to the making of the present costs order or incidental to the application and is not a matter which I will consider in relation to this application.

Other orders

  1. [4]
    Ms Saxby has requested that I make a number of further orders.
  2. [5]
    Firstly, she has sought that I reinstate Mr Shaun Adams to the position of SKAA representative and member of the management committee. I accept Ms Saxby’s submissions that there is utility in such a declaration being made. Consistent with my reasons of 21 December 2018, I will declare that Mr Shaun Adams as the SKAA representative was a member of the committee following his appointment on 24 February 2018. I also found that Mr Adams’ membership was not validly terminated at the general meetings either on 17 June 2018 or 22 July 2018. He was therefore not validly removed from that position to the extent it flowed from that purported termination. If Mr Adams has not resigned from the position he would remain in that position, at least until a further election of the position occurs. I am not prepared to make a formal declaration that he was part of the Executive as at 18 September 2018 given that Mr Adams has not made any submission to me, although Ms Saxby has purported to make submissions on his behalf. If he did not resign from that position consistent with my reasons he would have been part of the Executive as at 18 September 2018.
  3. [6]
    Secondly, Ms Saxby has sought orders that property held by her as the Secretary which was provided to Gemma Horton on 23 August 2018 be returned to Ms Saxby. That is consistent with the position of Secretary pursuant to s 69A of the Associations Incorporation Act 1981 (Qld). That property should be returned consistent with her holding the position of Secretary, unless a further election has occurred through an Annual General Meeting. Such an order is consistent with the reasons previously given and declarations made that Ms Saxby’s removal as secretary was invalid. I will make such an order.
  4. [7]
    Thirdly, Ms Saxby seeks orders that Mr Gavin Saxby, Ms Sharon Saxby and Mr Adams be given administration access to the NQ Speedway Kart Club Inc Facebook group page. Obviously if that is consistent with the holding of those positions there is no reason why they are not entitled to such access. However, that is a matter which falls within the powers and functions of the management committee and should be dealt with by the management committee, not this Court.
  5. [8]
    Fourthly, Ms Saxby seeks an order that Eileen McGrath and Sam Nucifora be removed from having administration access to the Club’s Facebook group. That is again a matter for the management committee for the reasons stated above, not this Court.
  6. [9]
    Finally, I note that Ms Saxby states that the reasons for judgment have not been posted to the Club’s Facebook page notwithstanding the direction made by this Court on 21 December 2018. I note that Ms Saxby has stated that she and Mr Saxby have not been given access to the Facebook which explains why they have not purported to comply with the reasons. Mr McGrath was also the subject of the direction. The failure to place the judgment of the Court before the membership when it is relevant to the membership is a highly unsatisfactory position. The judgment and these reasons should properly be placed before the membership at the next general meeting or Annual General Meeting. I will order that the President and Secretary should include in the papers and as an item on the agenda of the business for the next general meeting of the Club or Annual General Meeting of the Club, whichever occurs first, a copy of the decision of the Court of 21 December 2018 and a copy of these reasons.
  7. [10]
    I also note with some concern that Ms Saxby states that no meetings of the Club have occurred since the Court provided its reasons and made declarations. However, there is provision for such meetings to be called by the Secretary or the membership.

Orders

  1. [11]
    Consistent with the above reasons I order that:
    1. (a)
      Each party bear their own costs of the application;
    2. (b)
      Gemma Horton return property provided to her by Ms Saxby on 23 August 2018 to Ms Saxby within seven days of the date of this order;
    3. (c)
      The President and Secretary place in the papers and as an item on the agenda of the business for the next general meeting or the next Annual General Meeting, whichever occurs first,  a copy of the decision of the Court dated 21 December 2018 and a copy of these reasons.
  2. [12]
    I declare that:
    1. (a)
      Mr Shaun Adams as the SKAA representative appointed on 24 February 2018 was a member of the Executive of the Club and that his position was not validly terminated on 17 June 2018 or on 22 July 2018.

 

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Editorial Notes

  • Published Case Name:

    Saxby v Saxby & Ors

  • Shortened Case Name:

    Saxby v Saxby

  • MNC:

    [2019] QSC 102

  • Court:

    QSC

  • Judge(s):

    Brown J

  • Date:

    24 Apr 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment [2018] QSC 314 21 Dec 2018 Application for declaratory relief in respect of the membership of the executive of an incorporated association; declarations made that certain decisions of the incorporated association were valid and that others were void: Brown J.
Primary Judgment [2019] QSC 102 24 Apr 2019 Form of order and costs: Brown J.

Appeal Status

No Status