Kibby v Registrar of Titles and Another

[1999] 1 VR 861
[1998] VSC 148

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Between: Kibby
And: Registrar of Titles and Another

Court:

Judge: Mandie J

Subject References:
Associations and clubs
Unincorporated association
Essential characteristics
Real property
Land held by trustees for fluctuating group of individuals
Later establishment of unincorporated association
Whether land held on behalf of unincorporated association
Incorporation of association
Vesting of property in incorporated association

Legislative References:
Associations Incorporation Act 1981 (No. 9713) - ss. 3, 8, 9
Transfer of Land Act 1958 (No. 6399) - s. 59

Hearing date: 13, 14, 17 August 1998
Judgment date: 25 November 1998

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ORDER

From 1964 onwards, fluctuating groups of people met in a small chapel at a property at Ferny Creek to discuss religion and philosophy. In June 1968, when the number of such people had increased, vacant land elsewhere at Ferny Creek was purchased to enable them to continue their group activities. In September 1968, the plaintiff and six other persons, acting as trustees for the people who conducted their meetings at Ferny Creek, became registered as joint proprietors of the land. By 1969 or 1970, the people who had been meeting at Ferny Creek had formed an unincorporated association with a committee and a bank account. In 1971, a building was constructed on the land and was used continuously thereafter by the association. An incorporated association, established in 1994 under the Associations Incorporation Act 1981, claimed under s. 9 of the Act that the land had vested in it as property formerly held by the joint registered proprietors on trust for the unincorporated association. It applied to the Registrar of Titles to have the certificate of title amended. The plaintiff lodged a caveat in response to the vesting application and brought proceedings against the Registrar of Titles and the incorporated association seeking declarations and orders preventing the amendment of the certificate of title.

Held,

giving judgment for the plaintiff, that the incorporated association failed to establish that there was a combination of persons with a sufficient degree of organisation and continuity so as to indicate that an unincorporated association was in existence at either June or September 1968. Accordingly, the incorporated association was not entitled to be recorded as proprietor of the land pursuant to its vesting application.

Per Mandie J. The essence of an "association" may be described as some form of combination of persons (with a common interest or purpose) with a degree of organisation and continuity at least sufficient to distinguish the combination from an amorphous or fluctuating group of individuals and with some clear criteria or method for the identification of its members. A name or title or the existence of a written constitution or rules governing the combination or the existence of some form of contract between the members is not an essential characteristic of an association, but the existence of one or more of these would go a long way towards satisfying the need for some degree of organisation and continuity and for the satisfactory identification of members. Likewise, the existence of office-bearers, a committee and a bank account are relevant to a degree of organisation. The absence of all these features makes it unlikely, but not impossible, that an association has been formed or is being carried on.

Action

This was the trial of an action to establish title to land the subject of a vesting application under s. 9 (1) of the Associations Incorporation Act 1981. The facts are stated in the judgment.