Unincorporated Associations

Question 1

Conservative Central Office v Burrell

Answer 1

Define UAs as having following features:

1. Two or more people bound by a common purpose
2. Contracting to mutual rights and obligations
3. UA has rules regarding who is in control, how control is exercised, where funds come from

Question 2

Leahy v Attorney General for New South Wales

Answer 2

Leading case on gifts to UAs - in that case, gift couldn’t be charitable (was to closed religious Orders) and couldn’t be a general gift to the current members (as was a specific purpose). Class of beneficiaries was too wide too. In that case, gift was saved by statute however clearly identified the difficulties of gifts to UAs. Did also confirm that if a gift is made for the general purpose of the UA it can be construed as a gift to the specific members at that time, and other wording can be ignored (however in this case the purpose was specific so this didn’t apply)

Question 3

Neville Estates v Madden

Answer 3

Interpreted Leahy v AG for NSW, suggesting three understandings of gifts to UAs:

1. Gift to joint tenants so each can sever their share (but problematic as e.g. land)
2. Held on trust for purposes described (but then would fail unless charitable)
3. Contract holding theory - subject to undertakings and will accrue no matter the make-up of the UA

Question 4

Re Reacher’s Will Trusts

Answer 4

Contrary to any wording attempting to create a trust, gifts to UAs should be interpreted as the contract holding theory

Question 5

Re Lipinski’s Will Trust

Answer 5

Gift to a UA (Jewish sports organisation) solely for upkeep of buildings. However, succeeded for three reasons:
1. Re Denley- there were ascertainable beneficiaries (members of the UA)
2. Re Reachers - gift could be subject to contract holding theory and the idea that the gift was absolute to the members subject to their undertakings
3. The members could in theory dissolve the UA and divide the assets if they wanted to
Meant could ignore the purpose and apply how they wanted. Why? Otherwise, would fail completely and what would testator want more?

Question 6

Re Grants Will Trust

Answer 6

Chertsey Labour Party goverened by National Executive Committee - outside rules means contract holding theory cannot apply

Question 7

Re Horley Town FC

Answer 7

Distinguished from Re Grants - rules of outside bodies are not always inescapable, depends on exact constructions

Question 8

Hanchett-Stamford v AG

Answer 8

Contract holding theory is usual but not automatic, and cannot be applied if court cannot escape the conclusion that the gift was made solely for the purpose, rather than to the members in the hope of the purpose

Question 9

Re Andrew’s (Cheam) Lawn Tennis Club

Answer 9

Application of Hanchett-Stamford v AG - court concluded that testator did not intend to gift beneficially to members and therefore contract holding theory was not applicable