Faamate & Ors v Congregational Christian Church in Samoa-Australia (Ipswich Congregation) ABN 90 103 392 182 & Ors
In this matter, the court considered whether a solvent ongoing charitable organisation incorporated under the Associations Incorporation Act 1981 should be wound up on the just and equitable ground. Wilson J emphasised that an order to wind up a solvent association on the just and equitable ground is one of “last resort” and an “extreme step” which should not be taken if there is some other means by which to redress the applicants’ legitimate concerns. Ultimately, the application was dismissed.
9 August 2019
In brief, this matter involved a dispute between two competing factions of the Congregational Christian Church in Samoa-Australia (Ipswich Congregation), referred to as the “Ipswich Church”. . The Ipswich Church is a registered charitable organisation incorporated under the Associations Incorporation Act 1981. . The second respondent, Reverend Reupena, was the principal Minister (and Chair) of the Ipswich Church, a position which he had held since 1988. .
The Ipswich Church was one of a number of Australian associations affiliated with the Congregational Christian Church in Samoa (the “Mother Church”). . However, there had been a number of disputes between Reverend Reupena and the Mother Church, the result of which was that members of the Ipswich Church were split into two groups: those who wished to remain as part of the Mother Church, and those who supported Reverend Reupena (who wished for the Ipswich Church to cease to be affiliated with the Mother Church). –.
The applicants formed the “remainder” group. . They sought orders winding up the Ipswich Church on the just and equitable ground under s 90(1)(e) of the Associations Incorporation Act 1981. , . The applicants raised various complaints about the management of the association, including that: (i) they had been excluded from the Ipswich Church; (ii) there had been a purported amendment of the Constitution to remove references to the Mother Church without notice to all members; and (iii) there had been a failure to maintain an accurate register of members. . The applicants argued that “if there was going to be an association in this State that needed to be wound up on the just and equitable grounds, this is it”. . Relevantly, the association was solvent. .
Wilson J emphasised that the grounds relied upon by the applicants were to be “scrutinised with care” because:
“Winding up is a remedy of last resort; one only to be considered where there is no alternative remedy that would equally redress the legitimate concerns of those applying for winding up.” –.
Ultimately her Honour found that while serious concerns had been raised about the management of the Ipswich Church under the leadership of Reverend Reupena, it would be “an extreme step” to wind up a solvent association “where an alternative and lesser remedy is available, such as the appointment of a receiver”. . Her Honour considered that a receiver should be appointed for the purpose of convening a general meeting to determine the Ipswich Church’s future. . Her Honour recognised that “there may not ultimately be a reconciliation of the members” but added that this “does not mean that the Association needs to be wound up. It means that a once harmonious congregation is divided due to their loyalties”. .
The application for an order winding up the association was dismissed. .