[committee] Fwd: Fw: MOU for UCC

[Daniel Axtens]

> But, we can't see the future, which is presumably why the Guild wants these conditions. I agree with them, but I also agree that UCC should not make a knowingly unenforceable agreement, and I urge UCC to do anything necessary to make them work. You mention there are some ways to achieve the Guild's objectives - I suggest you work on them.

OK, so in response to both Alex and Bob, this is what I would propose:

=== Begin Message ===
Hi Rachel,

Thanks for drafting the MOU. We agree that it's a good idea and would be keen to implement something along these lines.

We just have two fairly simple concerns.

Firstly, I'm not sure if the acts of an unincorporated association can bind an incorporated association, even if the incorporated association is the successor of the unincorporated one. Whether or not that's the case, all that would be needed to avoid any uncertainty is for the agreement to be entered into after incorporation. This also gives the added bonus that the agreement can be made under the new incorporation's common seal. 

The committee would be happy to make personal guarantees that it will vote for and sign the new agreement after incorporation if you think that's appropriate.

Secondly, I'm not sure if the Guild is actually incorporated under the Associations Incorporation Act 1978. As far as I can tell, it's created by ss 28(4) of the University of Western Australia Act 1911.
I've reproduced here to save you looking it up (http://www.austlii.edu.au/au/legis/wa/consol_act/uowaa1911382/s28.html):

The Guild of Undergraduates shall be a body corporate by that name with perpetual succession and a common seal; and shall by that name be capable in law of suing and being sued, and shall have such other powers and authorities and shall be subject to such obligations as shall have been or shall from time to time be prescribed by or under the Statutes for the time being in force. 

This proposition is also supported by a brief check of the Australian Business Register: the Guild of Undergraduates <http://goo.gl/yonCf> is listed as an "Other Unincorporated Entity". On the other hand, the Royal Automobile Club of WA Inc <http://goo.gl/2ChGd> (the largest incorporated association in WA!) is listed as an "Other Incorporated Entity".

The dissolution clause (which reflects the terms of the Act) requires that we transfer our assets to another association incorporated under the Act. But rather than getting caught up in the technical details of how the Guild is a legal person, I was wondering if a different scheme would be better. Specifically, I had envisioned an agreement where:

 - The club, in consideration of its continued affiliation with SOC/the Guild, agrees that upon winding up permanently, all the grants it has ever received will be repaid, with a generous rate of compound interest.

 - As the exact amount of grants given in from the 70s onwards is difficult to prove, the contract would provide that the Guild may elect to levy some set figure per year, say $1500. The aim is to get to a net figure that, with compound interest, basically covers all the club's assets. (even without interest, 1500 x 40 years is already more than the club's net balance)

 - The guild agrees that it will accept a transfer of all the club's assets in full discharge of the debt.

 - All the provisions you drafted regarding distribution of the funds received by the guild (which was a thoughtful gesture, thank you!) would remain the same.

If you'd be interested in pursuing this suggestion I'd be happy to draft it up properly for you.

By the way, good luck re: the property assignment marks -- do you know when we're getting them back?

Best regards,
Daniel Axtens
UCC OCM 2011/token Law student on committee
=== End message ===

Feedback?

(esp if you're on committee and wouldn't be willing to promise to sign an mou in the terms I've suggested!)

[DJA]



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