[committee] Fwd: Fw: MOU for UCC

[Daniel Axtens]

Further, we could avoid pts 2 and 3 by making the agreement a deed under seal, which, if I remember Contract 1 correctly, avoids the requirement of consideration. It would also need to be done after incorporation.

On 12/05/2011, at 1:12 AM, Jacques Chester wrote:

> Daniel;
> 
> I'm not a lawyer either, but the general rule of thumb is that you
> can't use contractual terms to evade the clear meaning of an Act
> of Parliament. Both the MOU and your own phrasing would probably
> fail in this event.
> 
> Furthermore, the MOU is not a contract in my reading. It couldn't
> bind on the future committee and there's no enforcement mechanism
> save for being expelled in the guild. In the case that the UCC
> was winding up I doubt this would seem like a very grave threat.
> 
> Without looking into the details of the guild arrangements, it is
> also possible that the affiliation relationship with the guild
> does not, of itself, constitute a contract. And even if it does, it
> may not be possible to protect the guild from a future argument that
> the UCC may be affiliated *only* according the the UWA Act and by-laws,
> and that to add requirements to those by-laws through contract would
> be ultra vires. The semi-public nature of the Guild makes this a very
> murky area. Quite frankly I found administrative law to be incredibly
> tedious and I believe I failed it quite heroically.
> 
> So to sum up:
> 
> 1. The MOU is probably not a contract and can't bind the UCC;
> 2. Any contract based on using affiliation as consideration might
>   fail as the UCC may, under existing by-laws, be entitled to it
>   according to a process and not an exchangeable right;
> 3. If the Guild tried to make the MOU a condition of affiliation it
>   might be acting ultra vires; and
> 4. A judge could easily ignore points 1-3 and rule that the Act
>   overrides all this jiggery-pokery.
> 
> My advice to the committee is to talk to some MPs about amending one
> or both of the conflicting Acts. I'm pretty sure they won't bite.
> Minor procedural amendments like these go through on the nod quite
> frequently.
> 
> Cheers,
> 
> JC.
>