Can a statutory demand pursuant to section 459E of the Corporations Act be served on an incorporated association registered under the Associations Incorporation Reform Act 2012 (Vic)?

Section 459E(1) of the Corporations Act provides that a person may only serve a demand “on a company”. Section 9 of the Corporations Act defines a ‘company’ to be one registered under the Corporations Act.

Because the national system of corporations legislation, devised at the beginning of this century, was complicated by a number of constitutional issues, supporting legislation at state level was enacted to smooth over it.

In Victoria, the Corporations (Ancillary Provisions) Act 2001 (Vic) (part 3) provides that a statute can declare that provisions of the Corporations Act (and related legislation) apply in relation to a matter as a law of Victoria.

For example, the Victorian Parliament can avoid reproducing legislation that exists in the Commonwealth’s corporations legislation by referencing a Commonwealth provision and applying it as a law of Victoria (for example the Australian Consumer Law and Fair Trading Act 2012 (Vic), section 8, which imports the Commonwealth consumer law into the Victorian jurisdiction).

Such a declaratory provision exists in the Associations Incorporation Reform Act 2012 (Vic), part 11.

In IMO Nillumbik Community Church Incorporated [2011] VSC 590, As J Gardiner held:

[8] Section 31M of the Associations Incorporation Act imports into the context of incorporated associations the voluntary administration provisions of Part 5.3A and Division 3 of Part 5.9 of the Corporations Act, subject to some modifications. In the same way, s 36D provides that the voluntary winding up of an incorporated association under Division 1 of Part 8 of the Associations Incorporation Act is, subject to certain modifications, an applied corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to the provisions of Part 5.5 (voluntary winding up) and 5.6 (winding up generally) of the Corporations Act. Without descending to a close analysis of the effect of these provisions, they have the effect of importing the winding up provisions of the Corporations Act into the winding up of incorporated associations.

So, as a law of Victoria, section 459E(1) of the Corporations Act effectively reads:

"A person may serve on an incorporated association a demand..."

The usual rules about statutory demands then have the normal effect. Section 459P applies, so that an incorporated association can be wound up for failing to comply with a statutory demand. Section 459G applies too . When drafting a statutory demand, substitute the words ‘incorporated association’ instead of ‘company’.