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Unincorporated Associations Framework Notes

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Trusts Law

Unincorporated Associations Framework

FHS 2012

1. Is it UA?
i. Stipulated expressly in the problem ? conclusive ii. Not stipulated ? ask a) Owned by individual/company = legal personality (company law) b) 2 or more persons bound together for one or more common purposes w/mutual rights & obligations in an organisation which has rules governing the use of property, and which can be joined/left at will (Lawton LJ in Burrell) = UA

2. Has it dissolved + when?
? Assets can only be distributed if dissolved!

Do facts put together carry sufficient conviction that association is at an end & not merely dormant?
i. not dissolved just b/c impractical to operate (ReWilliams Delby Sick Fund) ii. need positive acts + inactivity (mere inactivity will suffice where it's prolonged) (ReGNKSportsClub)

4 ways in which can dissolve (Brightman J) (i) In acc. w/rules (ii) By agreement of all interested persons (iii) Court order (iv) Substratum upon which it was founded has gone (i.e. purpose no longer effective)
? watch out for ambiguity in purpose - e.g. to reduce noise in the airport: depends on whether a particular airport (which has closed, hence purpose no longer effective) or any airport

Only one person left = dissolved b/c can't associate w/himself ? assets are divided as follows: (i) Originally, bona vacantia (ReBucks) (ii) Currently - to remaining members b/c contract governing the use of property no longer operative, hence can severe their share (Hanchett Stamford v AG)

Date of dissolution - if unclear, court must pick a reasonable date
? If result in the end is unfair, try tweaking it
? If few possibilities, analyse all

3. Has each donation been made validly?
? Important b/c determines whether goes back on RT or can be divided amongst members in acc. w/rules

UA can't own payments made b/c not a legal person ? must construe as one of the following (Leahy v AG of New South Wales) (i) A gift to existing members beneficially
? Problematic b/c each can severe their share immediately, contravening donor's intent (ii) A gift to existing & future members beneficially
? Likely to fail b/c of perpetuity (iii) Absolute gift to members ( usually, for one (Treasurer) to hold on trust for others ? b/c easier + rules limiting no of people who can hold certain types of interests; e.g. s ? LPA 1925) which takes effect as accretion to existing funds under contract
? Requirements i) Beneficial transfer ii) Existence of contract governing the holding/use of property
? If transfer is made w/some qualification as to use (e.g. to LawSoc for purposes of mooting ? ReLipinski
? Theoretical problems i) ensuring Treasurer holds on self-imposed trust ? depends on contract governing the use & holding of property
? Downside - donor doesn't have much impact ii) formalities - disposition of equitable interest when old members leave & new join
? Penner - implied contractual right for Treasurer to vary membership - add
& take away iii) shifting membership iv) contract "binds" property - not theoretically possible
? argue members are bound by contract in their use of property instead?
v) members can waive/vary the contract by agreement (iv) Purpose trust w/ascertainable beneficiaries (ReBowes type trust as used in ReLipinski)

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