[committee] MOU for UCC

[Daniel Axtens]

Hi Rachel,

Thanks for your email. Yes, property went quite well - I was pleasantly surprised.

We're not entirely convinced by any of your responses: the Acts Incorporation Act is quite clear that funds have to pass to another body incorporated under "the Act" --- which is defined to be the Acts Incorporation Act, not any other act.

However, realistically the Guild is the one bearing all the risk with this agreement. UCC agrees with the spirit of the agreement and acknowledges and accepts it's purpose. However, we have brought to your attention that we believe it not to be legally binding or enforceable because:
- it is contrary to the Acts Incorporation Act,
- it attempts to bind a legal person which does not yet exist, and
- it lacks consideration.

However, we recognise that there are a lot more law students in the Guild than there are in UCC, so if you are happy with it's legal standing, or are happy for it to exist as a "gentleman's agreement", we will sign it.

I reiterate and highlight that UCC has every intention of keeping the agreement, notwithstanding questions of legal enforceability.

It's your call.

If possible we'd like to get this sorted before exams.

Best regards,
Daniel Axtens


On 21/05/2011, at 10:18 PM, Rachel Lee wrote:

> Hi Dan,
> 
> Sorry for my delayed response, I was awaiting feedback from the Managing
> Director. Yeah property went well, hope yours also was good.
> 
> The Guild is created as a body corporate under the statute which is why we
> do not have the 'inc' therefore we are incorporated by statute not by the
> executive. For your purposes this means we fit within the scope an an
> incorporated entity in the final clause of your Constitution.
> 
> I will have to chat more with the President if a deed is required but I do
> not think this is necessary given the guild is a body corporate.
> 
> Kind regards
> 
> Rachel
> 
> 
> Daniel Axtens wrote:
>> 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. This proposition
>> is also supported by a brief check of the Australian Business Register
>> online. As you're aware, our proposed 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 the following:
>> 
>> - The club enters into an agreement in the form of a deed (so as not to
>> require consideration) after incorporation.
>> 
>> - The agreement states that upon winding up permanently, all the grants
>> UCC has ever received will be repaid, with a generous rate of compound
>> interest.
>> 
>> - As the exact amount of money granted from the 70s onwards is difficult
>> to prove, the deed would provide that the Guild may instead elect to levy
>> some set figure per year, say $1500. The aim is to get to a net figure
>> that, with compound interest, 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, hope your property assignment marks were good! Do you know
>> when we're getting the equity midsem back?
>> 
>> Best regards,
>> Daniel Axtens
>> UCC OCM 2011/token Law student on committee
> 
> 
> -- 
> Rachel Lee
> Chair of Guild Council
> 98th UWA Student Guild
> 0423 129 281
> rachel.lee11 at guild.uwa.edu.au
>