CORPORATE AFFAIRS COMMISSION v DAVENPORT COMMUNITY COUNCIL INC [2026] SASCA 84

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (HER HONOUR ASSOCIATE JUSTICE BOCHNER) [2025] SASC 28 Appellant: CORPORATE AFFAIRS COMMISSION Counsel: MS A DOECKE KC WITH MS E DENBIGH - Solicitor: CROWN SOLICITOR (SA) Respondent: DAVENPORT COMMUNITY COUNCIL INC Counsel: MR B ROBERTS KC - Solicitor: DENTONS AUSTRALIA Interested Party: ABORIGINAL LANDS TRUST Counsel: MR S SANKEY - Solicitor: WALLMANS LAWYERS Hearing Date/s: 12/06/2025 File No/s: CIV-25-003853 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. CORPORATE AFFAIRS COMMISSION v DAVENPORT COMMUNITY COUNCIL INC [2026] SASCA 84 Judgment of the Court of Appeal (The Honourable Acting Chief Justice Livesey, the Honourable Justice S Doyle and the Honourable Justice Stanley) 30 July 2026 STATUTES - ACTS OF PARLIAMENT - INTERPRETATION CORPORATIONS - WINDING UP - APPLICATIONS FOR WINDING UP BY COURT CORPORATIONS - WINDING UP - GENERALLY - JURISDICTION AND POWERS OF COURT This appeal concerns a narrow but difficult question of statutory interpretation regarding winding up following a certificate from the Corporate Affairs Commission under s 41 of the Associations Incorporation Act 1985 (SA). The question is whether, under ss 41(8) and 41(9), a winding up commences on the filing of an application and lodgement of a certificate, or whether these merely fix the date from which the winding up is taken to commence once the Court makes a winding up order. The appellant (the Commission) contended that the winding up of the respondent incorporated association (Davenport) commenced when its originating application was filed and its certificate was lodged. As a result, Davenport had already been wound up. Davenport contended that the winding up could not commence until the Court made a winding up order. The Commission’s failure to seek an order for winding up required that the originating application be dismissed. -- 1 of 35 -- The primary judge found in favour of Davenport and dismissed the Commission’s originating application. The Commission’s sole ground of appeal was that the primary judge erred in her construction of s 41, and ought to have found that Davenport had been wound up on the basis that the Supreme Court’s role was limited to appointing a liquidator and otherwise overseeing the winding up. By notice of alternative contention, Davenport supported the primary judge’s decision on the further ground that the Commission had failed to prove that the certificate it relied on had been issued with the consent of the relevant Minister. Held (per Livesey ACJ and Stanley JA, with S Doyle JA agreeing), dismissing the Commission’s appeal and Davenport’s notice of alternative contention: 1. The 1993 amendments to the Associations Incorporation Act 1985 (SA) conferred a substantive role on the Supreme Court in determining whether a winding up order should be made. The Court’s role is not constrained to appointing a liquidator and supervising a winding up that has already commenced, but extends to whether the association should be wound up at all. 2. Once orders are made, the winding up is taken to commence from the date of the application and lodgement of a certificate. 3. The finding in favour of Davenport on the appeal means that it is not necessary to determine Davenport’s alternative contention. Associations Incorporation Reform Act 2012 (Vic) s 127; Associations Incorporation (Miscellaneous) Amendment Act 1992 (SA); Associations Incorporation Act 1959 (SA) ss 24, 25; Associations Incorporation Act 1984 (NSW); Associations Incorporation Act 1985 (SA) ss 35(6), 36, 39(1), 41, 41(1), 41(1)(c), 41(2), 41(2)(a), 41(3), 41(3)(a), 41(4), 41(5), 41(6), 41(7), 41(7)(c), 41(8), 41(9), 41(10), 50, 50(6), 63(6)(d); Associations Incorporation Act 2009 (NSW) s 61(A); Companies Act 1862 (Imp) 25 & 26 Vict c 89; Corporations (Ancillary Provisions) Act 2001 (SA) ss 15(1)(c), 15(2); Corporations Act 1989 (Cth) s 465; Corporations Act 2001 (Cth) ss 459A, 459E, 459G, 459P, 461, 471A, 472(2), 473A, 474(1), 490, 491, 491(1), 495, 513A, 599; Legislation Interpretation Act 2021 (SA) s 14, referred to. Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Austral Brick Co Pty Ltd v Falgat Constructions Pty Ltd (1990) 21 NSWLR 389; Cassell v The Queen (2000) 201 CLR 189; Corporate Affairs Commission v Davenport Community Council Inc [2025] SASC 28; Davis-Jacenko v Roxy’s Bootcamp Pty Ltd [2024] NSWSC 702; Duncan v Bert Farina Constructions Pty Ltd (2024) 145 SASR 272; Fardon v Attorney-General (Qld) (2004) 223 CLR 575; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; Gould v Brown (1998) 193 CLR 346; Kelly v The Queen (2004) 218 CLR 216; Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290; Minister for Home Affairs v Benbrika (2021) 272 CLR 68; Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154; National Acceptance Corporation Pty Ltd v Benson (1988) 12 NSWLR 213; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; QBE Workers Compensation (NSW) Ltd v Wandiyali ATSI Inc (2004) 62 NSWLR 117; Re Aspirion Group Pty Ltd [2014] NSWSC 39; Re Bankstown Community Child Care Inc [2008] NSWSC 173; Re Bosnian Islamic Council of Australia Inc [2024] NSWSC 247; Re Country Traders Distributors Ltd and the Companies Act [1974] 2 NSWLR 135; Re Crust ‘n’ Crumb Bakers (Wholesale) Pty Ltd [1992] 2 Qd R 76; Re Culleton (No 2) (2017) 263 CLR 176; Re FAI Traders Insurance Co Pty Ltd [2015] NSWSC 2137; Re Macks; Ex parte Saint (2000) 204 CLR 158; Re Parkesbourne/Mummel Landscape Guardians Incorporated (Inc 9884970) [2017] NSWSC 164; Re Scenic Hinterland Day Tours Pty Ltd (in liq) [2023] FCA 1277; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; Thomas v Mowbray (2007) 233 CLR 307; Zempilas v JN Taylor Holdings Pty Ltd (No 3) (1990) 55 SASR 77, considered. -- 2 of 35 -- CORPORATE AFFAIRS COMMISSION v DAVENPORT COMMUNITY COUNCIL INC [2026] SASCA 84 Court of Appeal – Civil: Livesey ACJ, S Doyle and Stanley JJA LIVESEY ACJ and STANLEY JA: Introduction 1 This appeal concerns a narrow but difficult question of statutory interpretation regarding winding up following a certificate from the Corporate Affairs Commission under s 41 of the Associations Incorporation Act 1985 (SA). The question is whether, under ss 41(8) and 41(9), a winding up commences on the filing of an application and lodgement of a certificate, or whether these merely fix the date from which the winding up is taken to commence once the Court makes a winding up order. 2 The difficulty arises because the 1993 amendments to the Associations Incorporation Act transformed a process that was wholly extra-curial to one that required the involvement of the Supreme Court. Under the earlier scheme, the Commission could both commence the winding up and appoint a liquidator. From 1993, that changed and the appointment of a liquidator became a matter for the Court. As well, various provisions of the federal corporations legislation were picked up and applied as part of the statutory scheme. 3 In substance, the question for decision concerns the extent of the Court’s involvement under an amended scheme that assumes that it is necessary for an order to be made by the Supreme Court. Is the Court’s role confined to appointing a liquidator, or does it extend to determining whether a winding up order should be made? 4 The appellant (the Commission) contended that the winding up of the respondent incorporated association (Davenport) commenced when its originating application was filed and its certificate was lodged. Davenport contended that the winding up could not commence until the Court made a winding up order. 5 The second reading speech provides little assistance regarding the purpose of the 1993 amendments. The question of statutory construction must be determined by resort to inferences from the text, context and structure of s 41. 6 Before the primary judge and this Court, the parties agreed that the fate of the Commission’s originating application turned on the resolution to their competing interpretations of s 41 of the Associations Incorporation Act.1 That is, on the Commission’s construction, Davenport has already been wound up. On 1 Corporate Affairs Commission v Davenport Community Council Inc [2025] SASC 28 (Reasons), [43] (Bochner AsJ). -- 3 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 2 Davenport’s construction, the Commission’s failure to seek an order for winding up required that the originating application be dismissed. Disposition of the appeal 7 The 1993 amendments conferred a substantive role on the Court in determining whether a winding up order should be made. The Court’s role is not constrained to appointing a liquidator and supervising a winding up that has already commenced, but extends to whether the association should be wound up at all. Once orders are made, the winding up is taken to commence from the date of the application and lodgement of a certificate. 8 Accordingly, and for the reasons that follow, the primary judge made no error in her construction of s 41 of the Associations Incorporation Act and the appeal should be dismissed. It is, in consequence, not necessary to address Davenport’s notice of contention. 9 These reasons are set out as follows. Introduction .................................................................................................................................... 1 Disposition of the appeal................................................................................................................ 2 The appeal and notice of contention .............................................................................................. 2 Relevant factual background .......................................................................................................... 4 The legislation – s 41 of the Associations Incorporation Act ........................................................ 5 The prior iteration of s 41 and the 1993 amendments.................................................................. 12 The ruling of the primary judge ................................................................................................... 14 The contentions of the Commission............................................................................................. 15 The contentions of Davenport ...................................................................................................... 19 The determination of the appeal................................................................................................... 21 Conclusion ................................................................................................................................... 30 The appeal and notice of contention 10 The Commission’s sole ground of appeal was as follows: The learned Associate Justice erred in deciding an improper construction of s 41 of the Association Incorporation Act 1985 and ought to have found that the respondent had been wound up as the Supreme Court’s role was limited to appointing a liquidator and otherwise overseeing the liquidation of assets. 11 The Commission attacked the order of the primary judge dismissing its originating application dated 14 October 2024. That application sought the following orders: 1. The respondent is wound up pursuant to s 41 of the Associations Incorporation Act 1985 (SA). -- 4 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 3 2. The Court appoints Andrejs Janis Strazdins of BRI Ferrier Adelaide Pty Ltd as liquidator for the respondent. 3. The respondent pay the applicant’s costs and expenses of and incidental to this application, such costs to be paid out of the property of the respondent as costs and expenses of its winding up. 12 By paragraph 1, the Commission effectively sought what amounted to a declaration, namely, that Davenport “is wound up” pursuant to s 41 of the Associations Incorporation Act. By contrast, Davenport contended that it was necessary for the Commission to seek an order that Davenport “be wound up” pursuant to s 41 of the Associations Incorporation Act. Because that relief had never been sought, it was Davenport’s case, accepted by the primary judge, that the Commission’s originating application had to be dismissed. 13 By notice of alternative contention, Davenport supported the primary judge’s decision on the further ground that the Commission had failed to prove that the certificate it relied on had been issued with the consent of the relevant Minister: The Corporate Affairs Commission failed to discharge the evidential onus necessary to enliven jurisdiction in the Court to wind up Davenport Community Council Inc pursuant to s 41(1)(c) of the Associations Incorporation Act 1985 (SA), being that the certificate relied on by the Corporate Affairs Commission was issued with the consent of the Minister. 14 The notice of alternative contention was argued by reference to s 63(6)(d) of the Associations Incorporation Act, which provides: In any proceedings— … (d) a certificate purporting to be under the seal of the Commission and certifying that a specified incorporated association has been or is being wound up, including the date on which the winding up commenced and (if relevant) the date on which the association was dissolved, is to be accepted, in the absence of proof to the contrary, as proof of the matters so certified … 15 On the case of the Commission, a certificate issued pursuant to this kind of provision is common to many statutory schemes as an aid to proof. Its effect is to reverse the onus and require that Davenport adduce evidence regarding the consent of the Minister. 16 Davenport contended, however, that this statutory aid only addressed whether the specified incorporated association “has been or is being wound up”. It did not address the anterior question whether the relevant certificate had been issued by the Commission “with the consent of the Minister” as s 41(1) of the Associations Incorporation Act required. 17 Though there is merit in Davenport’s contention, especially where s 41(1)(c) stipulates that a certificate must be issued with the consent of the Minister, and that issue is not otherwise addressed by ss 41 or 63(6)(d), the finding in favour of -- 5 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 4 Davenport on the appeal means that it is not necessary to determine this issue. Accordingly, it is not necessary to consider questions such as whether the common law presumptions of regularity or due performance, or similar, apply.2 Relevant factual background 18 Davenport was established in around 1974 to operate the local community.3 It has since run the administration, municipal services, adult training centre and homemakers’ program, in addition to managing services for the welfare of the community, such as housing, employment and health services. 19 Davenport was granted 99-year leases by the Aboriginal Lands Trust4 with respect to two parcels of land in 1979 (the Community Land) and in 1991 (the Lakeview Land). Davenport uses some of this land for its operations and it sublets the remainder. 20 On 21 May 2024, the Aboriginal Lands Trust appointed a manager to manage the Community Land and the Lakeview Land. The manager required Davenport to vacate. This led to an interruption of the various programs and services Davenport provided. Davenport then instructed a lawyer to represent it in relation to a number of matters between 2021 and 2024. There was later a dispute over the lawyer’s fees, and this prevented the 2022 audited accounts from being finalised. 21 In February 2024, Davenport received a letter from Consumer and Business Services (CBS) advising that it was in default of various obligations pursuant to the Associations Incorporation Act. These defaults concerned the failure to submit the Annual Information Statement of Financial Reports for 2022/2023 to the Australian Charities and Not-for-profits Commission. In consequence, there was a failure to lodge periodic returns with the CBS for 2022 and 2023. CBS required that Davenport rectify these breaches by 8 May 2024. Davenport was also advised that it was in breach of their requirement that it submit audited accounts with an auditor’s report to its members at a general meeting. It was required to provide proof of rectification of this breach by 26 February 2024. 22 On 15 May 2024, the Commission issued a Notice of Breach to Davenport, identifying the following:5 2 Cf Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, 157 (Kirby P), 163-165 (McHugh JA), 169-170 (Clarke AJA), “the presumption of regularity often expressed in the maxim omnia praesumuntur rite esse acta”. See also Cassell v The Queen (2000) 201 CLR 189, [15]-[22] (Gleeson CJ, Gaudron, McHugh and Gummow JJ), [34]-[35], [63]-[65] (Kirby J) (a criminal case); Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290, [5] (Gleeson CJ, agreeing with Gummow and Callinan JJ): “the respondent … cannot point to any provision which expressly relieves her of the necessity of proving the allegation, or which facilitates such proof”. 3 Whilst what follows is taken from the reasons of the primary judge, a number of these matters were or are the subject of contention between the parties, and no findings have been made. See reasons, [2]-[13]. 4 The Aboriginal Lands Trust is an interested party in these proceedings, but took no active role on the appeal. 5 Reasons, [8]. -- 6 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 5 1. Failure to comply with financial reports obligations as a prescribed association under s 36 of the Associations Incorporations Act; 2. Failure to comply with the obligation to present 2022 and 2023 audited financial statements to members under s 35(6) of the Associations Incorporation Act; and 3. Failure to hold an annual general meeting in breach of s 39(1) of the Associations Incorporation Act as well as cl 8.1 of the Constitution of Davenport Community Council Incorporated. 23 The Commission required that Davenport rectify all breaches by 31 July 2024. The notice concluded:6 Should the Association fail to remedy the breaches as detailed above within the timeframes detailed in this notice, I foreshadow that the Commission intends to issue a certificate with the consent of the Minister to wind up the Association and will rely on this notice for that purpose. 24 By the time Davenport received this notice, the breach concerning the requirement that there be an annual general meeting had been rectified.7 25 On 14 October 2024, the Commission issued a Certificate of Winding up, purportedly with the consent of the Minister pursuant to s 41(7) of the Associations Incorporation Act. 26 The primary judge observed that all of the remaining breaches underpinning the certificate have since been rectified.8 27 The dispute over the lawyer’s fees was resolved, leading to the finalisation of the outstanding audited accounts, which were then tabled at an annual general meeting on 21 January 2025. The 2023 audited statements have been lodged with the Australian Charities and Not-for-profit Commission. 28 The Commission does not concede that Davenport has complied with all of its obligations under the Associations Incorporation Act.9 The legislation – s 41 of the Associations Incorporation Act 29 This appeal turns on the proper construction of s 41 of the Associations Incorporation Act: 41—Winding up of incorporated associations 6 Reasons, [9]. 7 Reasons, [10]. 8 Reasons, [13]. 9 Written submissions of the Commission dated 22 May 2025 (FDN 6), [11]. -- 7 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 6 (1) Subject to the succeeding provisions of this Part, an incorporated association may be wound up— (a) by the Supreme Court; or (b) voluntarily; or (c) on the certificate of the Commission issued with the consent of the Minister. (2) An incorporated association is declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to the provisions of Parts 5.4B, 5.5, 5.6, Divisions 1 and 2 of Part 5.7B, Division 3 of Part 5.9 and Part 5A.1 of the Corporations Act 2001 of the Commonwealth, subject to the following modifications: (a) the modifications necessary to give effect to this section and the succeeding provisions of this Part; and (b) such other modifications (within the meaning of Part 3 of Corporations (Ancillary Provisions) Act 2001) as may be prescribed by the regulations. (3) The grounds on which an incorporated association may be wound up by the Supreme Court are as follows: (a) that the association has by a special resolution resolved that it be wound up by the Court; or (b) that— (i) the association has not commenced any activity or function; and (ii) more than one year has elapsed since the date of its incorporation; or (c) that the association is unable to pay its debts; or (d) that members of the committee of the association have acted in the affairs of the association in their own interests rather than in the interests of the members as a whole, or in any other manner whatsoever that appears to be unfair or unjust to other members; or (e) that affairs of the association are being conducted in a manner that is oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member or members or in a manner that is contrary to the interests of the members as a whole; or (f) that an act or omission, or a proposed act or omission, by or on behalf of the association was or would be oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member or members or was or would be contrary to the interests of the members as a whole; or (g) that the Court is of the opinion that it is just and equitable that the association be wound up. (4) For the purposes of subsection (3), if— -- 8 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 7 (a) a creditor, by assignment or otherwise, to whom the association is indebted in a sum exceeding $1 000 then due, has served on the association a demand, signed by or on behalf of the creditor, requiring the association to pay the sum so due and the association has, for three weeks after service of the demand, failed to pay the sum or secure or compound for it to the reasonable satisfaction of the creditor; or (b) execution or other process issued on a judgment, decree or order of any Court in favour of a creditor of the association is returned unsatisfied in whole or in part; or (c) the Court, after taking into account any contingent and prospective liabilities of the association, is satisfied that the association is unable to pay its debts, the association is to be taken to be unable to pay its debts. (5) Where an application has been filed with the Court for the winding up of an incorporated association on the ground that it is unable to pay its debts, the association is not, without the permission of the Court, entitled to resolve that it be wound up voluntarily. (6) Subject to subsection (5), an incorporated association may, by a special resolution, resolve that it be wound up voluntarily. (7) The grounds on which the Commission may issue a certificate for the winding up of an incorporated association are as follows: (a) that the association has contravened or failed to comply with a condition imposed in relation to the association by the Commission or the Minister under this Act; (b) that the incorporation of the association has been obtained by mistake or fraud; (c) that the association has, after notice by the Commission of any breach of this Act or the rules of the association, failed, within the time referred to in the notice, to remedy the breach; (d) that the association has not, within three months of notice being given by the Commission under section 42, requested the Commission to transfer its undertaking to another body corporate; (e) that the association is defunct. (8) For the purposes of this Act, the winding up of an incorporated association on the certificate of the Commission commences on application to the Supreme Court by the Commission and lodgement with the Court of a copy of the certificate and is to proceed as if the association had by special resolution resolved that it be wound up by the Court. (9) The Supreme Court may, on an order being made for the winding up of an incorporated association by the Court (including a winding up on the certificate of the Commission), if the Commission nominates a person who is not a registered company liquidator for appointment as the liquidator of the association, appoint the person so nominated as the liquidator of the association. -- 9 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 8 (10) The Commission may, in relation to the voluntary winding up of an incorporated association, approve the appointment of a person who is not a registered company liquidator as the liquidator of the association. (11) The reasonable costs of a winding up are payable out of the property of the association. 30 Some preliminary observations should be made. 31 Section 41(1) follows a form used since the Imperial Companies Act was passed during the 19th century,10 as well as in later companies and corporations legislation. For example, by s 461 of the Corporations Act 2001 (Cth) (the Corporations Act), the grounds on which a company may be wound up by the Court are specified on the following way: 461 – General grounds on which a company may be wound up by Court (1) The Court may order the winding up of a company if: (a) the company has by special resolution resolved that it be wound up by the Court; or (c) the company does not commence business within one year from its incorporation or suspends its business for a whole year; or (d) the company has no members; or (e) directors have acted in affairs of the company in their own interests rather than in the interests of the members as a whole, or in any other manner whatsoever that appears to be unfair or unjust to other members; or (f) affairs of the company are being conducted in a manner that is oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member or members or in a manner that is contrary to the interests of the members as a whole; or … (h) ASIC has stated in a report prepared under Division 1 of Part 3 of the ASIC Act that, in its opinion: (i) the company cannot pay its debts and should be wound up; or (ii) it is in the interests of the public, of the members, or of the creditors, that the company should be wound up; or (k) the Court is of opinion that it is just and equitable that the company be wound up. (2) A company must lodge a copy of a special resolution referred to in paragraph (1)(a) with ASIC within 14 days after the resolution is passed. 10 Companies Act 1862 (Imp) 25 & 26 Vict c 89. -- 10 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 9 32 Section 41(1) of the Associations Incorporation Act identifies how an incorporated association may be wound up, effectively establishing three categories. The Commission contended that the first two categories, Court ordered winding up and voluntary winding up, have long been features of companies and corporations legislation. 33 The first category is winding up as ordered by the Supreme Court, which is addressed under s 41(3). For the purposes of that provision, s 41(4) establishes a simplified form of statutory demand regime. This may be compared with s 459E under Division 2 of Part 5.4 of the Corporations Act, which permits a creditor to serve a statutory demand, together with s 459G of Division 3 of Part 5.4, which specifies when the company may apply to set aside a statutory demand which has been served on it. 34 The second category is winding up voluntarily, which is addressed under ss 41(6) and 41(10). 35 The third category, the subject of this appeal, is winding up on the certificate of the Commission, issued with the consent of the Minister, which is addressed under s 41(7). That provision sets out the grounds on which the Commission may issue a certificate. Relevantly for the present appeal, the parties concentrated on the operation and effect of ss 41(8) and 41(9). It will be necessary to return to these provisions. 36 By s 41(2), and since 1993, various Parts of the Corporations Act apply as if they were State laws. Under the present Corporations Act, Chapter 5 addresses the external administration of companies. It is from that Chapter that s 41(2) picks up only some Parts which are to be applied as laws of the State. Those Parts which are picked up, or not, are as follows: • Part 5.3A addresses the administration of a company’s affairs with a view to executing a Deed of Company Arrangement. This Part is not picked up. • Part 5.4 addresses winding up in insolvency. By s 459A, on an application made under s 459P, the Court may order that an insolvent company be wound up in insolvency. This Part is not picked up. • Part 5.4A addresses the general grounds for winding up. This Part is not picked up. • Part 5.4B addresses winding up in insolvency or by the Court and contains a number of general provisions. This Part is picked up by s 41(2). • Part 5.4C addresses winding up by ASIC. This Part is not picked up. -- 11 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 10 • Part 5.5 addresses voluntary winding up, including by members voluntary winding up (Division 2). This kind of winding up is extra- curial. It occurs where the company “so resolves by special resolution” under s 491(1). The company must in general meeting appoint a liquidator (or liquidators) pursuant to s 495. Both the winding up and the appointment of the liquidator are undertaken by the company through its members and without the need for an order from the Court. This Part is picked up by s 41(2). • Part 5.6 concerns winding up generally, and includes provisions which determine when the winding up is taken to begin. For example, where the winding up is ordered by the Court, s 513A deems when the winding up is taken to have begun or commenced: 513A – Winding up ordered by the Court If the Court orders under section 233, 459A, 459B or 461 that a company be wound up, the winding up is taken to have begun or commenced: (a) if, when the order was made, a winding up of the company was already in progress— when the last-mentioned winding up is taken because of this Division to have begun or commenced; or (b) if, immediately before the order was made, the company was under administration— on the section 513C day in relation to the administration; or (c) if: (i) when the order was made, a provisional liquidator of the company was acting; and (ii) immediately before the provisional liquidator was appointed, the company was under administration; on the section 513C day in relation to the administration; or (d) if, immediately before the order was made, a deed of company arrangement had been executed by the company and had not yet terminated—on the section 513C day in relation to the administration that ended when the deed was executed; or (da) if, immediately before the order was made, the company was under restructuring— on the section 513CA day in relation to the restructuring; or … (e) otherwise—on the day when the order was made. 37 It can be seen that the general approach is to stipulate that the winding up will not be taken to have commenced until an order is made by the Court. This Part is picked up by s 41(2). -- 12 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 11 • Divisions 1 and 2 of Part 5.7B concern aspects of the voidable transactions regime, including unfair preferences, uncommercial transactions and insolvent transactions, amongst others. This Part is picked up by s 41(2). • Division 3 of Part 5.9 concerns various provisions applying to various kinds of external administration, including by s 599, appeals from decisions made by those controlling the property of a company. This Part is picked up by s 41(2). • Part 5A.1 concerns the deregistration of companies. This Part is picked up by s 41(2). 38 By s 41(3)(a), an incorporated association may be wound up by the Supreme Court where the association has, by special resolution, resolved that it be wound up by the Court. That may be contrasted with the extra-curial step of an incorporated association resolving, by special resolution, that it be wound up voluntarily under s 41(6).11 39 By s 41(5), when an application has been filed for the winding up of an incorporated association on the ground that it is unable to pay its debts, the association is prevented, without the permission of the Court, from resolving that it be wound up voluntarily under s 41(6). That provision has its counterpart in s 490 of the Corporations Act. 40 Where the extra-curial step of voluntary winding up is taken under s 41(6), s 41(10) reserves to the Commission the power of approving the appointment of a person who is not a registered company liquidator as the liquidator of the association. 41 That must be contrasted with what the parties contended was the scope for the Supreme Court to order the appointment of a liquidator where the winding up proceeds on a certificate issued by the Commission under s 41(7)(c). For example, s 41(9) reserves to the Supreme Court the power to appoint a person nominated by the Commission as liquidator where that person is not a registered company liquidator. 42 It is one of the curiosities associated with s 41 that the power of the Supreme Court to make an order for the appointment of a liquidator under the s 41(8) procedure is not addressed explicitly, but only as a matter of implication from the terms in which s 41(9) is expressed. The contention appears to be that the power to appoint the Commission’s unregistered nominee must, by implication, carry with it the power to appoint a person who is a registered company liquidator. 11 To that extent, the contrary observation made at [23] of the reasons by the primary judge is in error. Likewise, the Commission challenged the observation made by the primary judge at [24] of the reasons. -- 13 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 12 The prior iteration of s 41 and the 1993 amendments 43 When the Associations Incorporation Act first commenced, s 41 was in similar terms. However, the scheme for winding up on the certificate of the Commission was different. No order of the Court was required, including as to the Commission’s appointment of a liquidator, whether or not the person was registered – see s 41(8) below. The prior iteration of s 41 was as follows: 41—Winding up of incorporated association (repealed) (1) Subject to the succeeding provisions of this Part, an incorporated association may be wound up— (a) by the Supreme Court; (b) voluntarily; or (c) on the certificate of the Commission issued with the consent of the Minister. (2) The regulations may provide that the provisions of Part XII of the Companies (South Australia) Code apply, with such modifications as may be necessary for the purpose or as may be prescribed, to a winding up under this section as if an incorporated association were a company as defined in the Code. (3) The grounds on which an incorporated association may be wound up by the Supreme Court are as follows: (a) that the association has by a resolution passed in accordance with subsection (4) resolved that it be wound up by the Court; (b) that— (i) the association has not commenced any activity or function; and (ii) more than one year has elapsed since the date of its incorporation; (c) that the association is unable to pay its debts; (d) that the members of the committee of the association have acted in the affairs of the association in their own interests rather than in the interests of the members as a whole, or in any other manner that appears to be oppressive or unreasonable to other members; or (e) that the Court is of the opinion that it is just and equitable that the association be wound up. (4) A resolution of an incorporated association that the association be wound up by the Court— (a) where the rules of the association provide for the membership of the association—must be passed by a special resolution of the association or in such other manner as the rules of the association may provide; -- 14 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 13 (b) where the rules of the association do not provide for the membership of the association—subject to the rules of the association, may be passed in such manner as the association may determine. (5) For the purposes of subsection (3), if— (a) a creditor by assignment or otherwise to whom an association is indebted in a sum exceeding one thousand dollars then due has served on the association a demand, signed by or on behalf of the creditor, requiring the association to pay the sum so due and the association has, for three weeks after service of the demand, failed to pay the sum or secure or compound for it to the reasonable satisfaction of the creditor; (b) execution or other process issued on a judgment, decree or order of any Court in favour of a creditor of an association is returned unsatisfied in whole or in part; or (c) the Court, after taking into account any contingent and prospective liabilities of an association, is satisfied that the association is unable to pay its debts, the association shall be deemed to be unable to pay its debts. (6) The grounds on which the Commission may issue a certificate for the winding up of an incorporated association are as follows: (a) that the association has contravened or failed to comply with a condition imposed in relation to the association by the Commission or the Minister under this Act; (b) that the incorporation of the association has been obtained by mistake or fraud; (c) that the association has, after notice by the Commission of any breach of this Act or the rules of the association, failed, within the time referred to in the notice, to remedy the breach; (d) that the association has not, within three months of notice being given by the Commission under section 42, requested the Commission to transfer its undertaking to another body corporate. (7) The Commission may, in relation to the voluntary winding up of an incorporated association under this section, approve the appointment of a person to act as liquidator who is not a registered company liquidator. (8) The Commission may, in relation to a winding up of an incorporated association by the Commission under this section, appoint a person (who may, but need not, be a registered company liquidator) to act as liquidator. (9) The Commission shall cause notice of a decision to appoint a liquidator under subsection (8) to be published in the Gazette and in a daily newspaper circulating generally throughout the State. (10) The reasonable costs of a winding up shall be payable out of the property of the association. -- 15 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 14 (11) A member of an incorporated association is not liable, except as may be provided in the rules of the association, for the costs and expenses of a winding up of the association. 44 By ss 41(8) and 41(9) it can be seen that winding up pursuant to a certificate of the Commission proceeded extra-curially, much like voluntary winding up following a special resolution. Under that method, the winding up was effected by the certificate. Following the appointment of the liquidator by the Commission, it was necessary for the Commission to cause a notice to be published in the Gazette as well as in a daily newspaper circulating generally throughout the State. 45 When the present iteration of s 41 was introduced during 1993, this method of winding up was removed. The parties to this appeal were unable to identify any explanation for this and many of the other changes that were then made. The ruling of the primary judge 46 The primary judge pointed out that when the 1993 amendments came into effect, the Corporations Act of 1989 included s 465, which contained a deeming provision in the following terms: (1) Where, before the filing of the application, a resolution has been passed by the company for voluntary winding up, the winding up of the company shall be deemed to have commenced at the time of the passing of the resolution and, unless the Court on proof of fraud or mistake thinks fit otherwise to direct, all proceeding taken in the voluntary winding up shall be deemed to have been validly taken. (2) In any other case the winding up shall be deemed to have commenced at the time of the filing of the application for the winding up. 47 As to this deeming provision, the primary judge explained:12 Thus it is clear that, in the context of a company incorporated under the Corporations Act 1989, where an application to the Court is required to effect a winding up of the company, while the process itself does not commence until the order for winding up is made, a legal fiction is created whereby the winding up is deemed to have commenced at the time that the application was filed. I consider that this historical context is of assistance in determining the true construction of s 41 in its current form. It is clear that the legislature sought to depart from the original formulation of s 41, which allowed such winding up to occur purely as an administrative action by the Commission on the occurrence of certain events. It specifically introduced the need for there to be an application to the Court, and removed from the Commission the power to appoint a liquidator, a necessary prerequisite to the commencement of any winding up process. This must lead to the inference that the Court was expected to exercise judicial power in the winding up process, not merely undertake the administrative task of appointing a liquidator, which until that time, had fallen within the power of the Commission. 12 Reasons, [54]-[55]. -- 16 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 15 48 The primary judge explained her conclusion about the evident purpose of the amendments to s 41, and why they suggested that winding up turned on an order of the Court, in the following passage:13 The second reading speech of the 1991 amendments is silent on the purpose of the amendments to s 41. It must be inferred, however, that the purpose was to introduce the involvement of the Court in a winding up of an association on the certificate of the Commission in a way that required an exercise of judicial power. Otherwise, the amendments would achieve no useful purpose. If the only role of the Court was to appoint the liquidator, then the amendment appears largely pointless; it does no more than add an extra layer of complexity and expense to the previously streamlined process that was established by the original text of s 41. The only way to give meaning to the amendment is to read it as vesting in the Court the discretion whether or not to make the winding up order. 49 The effect of these conclusions will be addressed in connection with the determination of this appeal. The contentions of the Commission 50 Whilst the Commission accepted that the effect of s 41(2)(a) was to pick up certain portions of the Corporations Act – being those in operation as at the present date,14 as if they were laws of the State15 – it contended that they must be construed so as not to displace the operation and effect of the Associations Incorporation Act.16 On the case of the Commission, the provisions of Corporations Act which were picked up provided powers facilitating the process of winding up, but not the source of the power to wind up.17 51 The Commission emphasised the difference in language between s 41(3) and s 41(7) regarding winding up by the Supreme Court and winding up on the Commission’s certificate. The effect was that under s 41(3), the Court retained the power to order the winding up and then supervise the winding up utilising, for example, the powers conferred by s 41(2) which are picked up from the Corporations Act. 52 Alternatively, it was the Commission who had the power to commence the winding up under s 41(7) and it was only obliged to commence proceedings in order to give effect to its certificate, ask the Court to appoint a liquidator and, 13 Reasons, [57]. 14 Corporations (Ancillary Provisions) Act 2001 (SA), s 15(2). 15 Corporations (Ancillary Provisions) Act 2001 (SA), s 15(1)(c). 16 Kelly v The Queen (2004) 218 CLR 216, [103] (McHugh J). See also Attorney-General (SA) v TMS [2021] SASC 6, [45] (Bampton J), concerning the importation of a definition from another Act where there is no specific textual indication. 17 QBE Workers Compensation (NSW) Ltd v Wandiyali ATSI Inc (2004) 62 NSWLR 117, [11]-[13] (Barrett J), regarding the New South Wales equivalent legislation. Under the Associations Incorporation Act 2009 (NSW), it is the secretary who has the power to wind up on a certificate (under s 61(A), which power is extra-curial in nature. It is similar to the power conferred on the Registrar under s 127 of the Association Incorporation Reform Act 2012 (Vic)). -- 17 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 16 thereafter, to invoke the Court’s powers to oversee the liquidation.18 The Commission contended that the Court had no role with respect to whether to order the winding up, and s 41(1) and s 41(7) did not constitute a deeming provision nor suggest that there was any role for the exercise of discretion by the Court. 53 Under the Commission’s approach, once the certificate was issued and the application made, that was the time at which the winding up commenced under s 41(8). In addition, the only deeming required was that the winding up must “proceed as if the association has by special resolution resolved that it be wound up by the Court”. The Commission submitted that the use of the phrase “as if” introduced a fiction in that “it deems something to be what it is not or compares it with what it is not”.19 54 According to the Commission, where the winding up proceeds “as if” there had been a special resolution for winding up by the Court, it proceeds with the winding up, utilising those of the Corporations Act powers which apply to that kind of winding up. 55 The Commission observed that whilst there was no authority in South Australia concerning winding up by the Court pursuant to a special resolution, in New South Wales it had been held that, when that occurs, it is “very unlikely” that the Court would not make the relevant orders.20 56 The Commission took issue with the finding by the primary judge that the effect of s 41(8) of the Associations Incorporations Act was to deem the commencement of the winding up in a manner similar to s 465 of the Corporations Act 1989 (Cth).21 The Commission principally relied on the difference in language which, it contended, was clearer about deeming in the case of s 465 when contrasted with s 41(8). That is to say, whereas the Commonwealth provision stated that “the winding up of a company shall be deemed to have commenced”, s 41(8) stated that “the winding up commences …”. The Commission contended that the primary judge should have found that winding up on the certificate of the Commission commences on the application being made to the Supreme Court. 57 The Commission contended that the primary judge placed “too much weight” on the historical statutory scheme and the present arrangements for the winding up of companies.22 18 See, for example, the approach taken by the court to the problem of a surplus in Re Bankstown Community Child Care Inc [2008] NSWSC 173 (Barrett J), albeit in a case where the court ordered the winding up of the unincorporated association under the Associations Incorporation Act 1984 (NSW). 19 Re Macks; Ex parte Saint (2000) 204 CLR 158, [115] (McHugh J); Re Culleton (No 2) (2017) 263 CLR 176, [27] (Kiefel, Bell, Gageler and Keane JJ). 20 Re Parkesbourne/Mummel Landscape Guardians Incorporated (Inc 9884970) [2017] NSWSC 164, [6] (Barrett AJA). 21 Reasons, [53]-[56]. 22 Written submissions of the Commission, [6]. -- 18 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 17 58 In developing its contention that the primary judge placed erroneous emphasis on inferences drawn from the historical context, the Commission emphasised the language in ss 41(1)(c) and 41(7). Its contention was that the purpose of the legislation could be gleaned from the text and that this demonstrated that winding up occurred on the filing of the application and certificate by the Commission with the Supreme Court. As the Commission put it:23 Thus, the issue of the certificate is an administrative decision made by the Commission with the consent of the Minister. This is the starting point, and attention turns to the Court’s role in the process in accordance with sub-s 41(8) of the Act. The learned Associate Justice failed to consider this starting point, which informs how the balance of s 41 should be interpreted to reach a harmonious construction that is consistent with sub-ss 41(1) and 41(7). Further, s 41 (including sub-s 41(8)) does not provide any specific textual indicator to infer an intention for the Court to exercise judicial power. Considered in its entirety, the only indication in s 41 as to what the Court may or may not do on a winding up by certificate is in sub-s 41(8) – it is to proceed as if the association had by special resolution resolved that it be wound up by the Court. 59 The Commission contended that if it had been the intention of the legislature to amend the Commission’s power to wind up an association on certificate so as to furnish the Court with an overriding discretion, it would be expected that the terms of ss 41(1)(c) and 41(7) would have clearly reflected that intention. 60 The Commission took issue with the finding made by the primary judge that the involvement of the Court was so as to permit it to exercise judicial power.24 Whilst the Commission accepted that the power to wind up a company is ordinarily an incident of judicial power,25 that was “not necessarily always so”.26 The Commission relied on the observation made by Gaudron J in Gould v Brown that the power to wind up “need not be conferred on Courts” but, where it is conferred on a Court, the power is “readily characterised as judicial in character”.27 61 In Minister for Home Affairs v Benbrika, Edelman J explained that there was “fluidity in the concept of judicial power” which required that any attempt to determine its essential meaning was necessarily undertaken “at a high level of generality”.28 23 Written submissions of the Commission, [41]-[42]. 24 Reasons, [55], [57]. 25 Minister for Home Affairs v Benbrika (2021) 272 CLR 68, [20] (Kiefel CJ, Bell, Keane and Steward JJ), [221] (Edelman J); Fardon v Attorney-General (Qld) (2004) 223 CLR 575, [34] (McHugh J); Gould v Brown (1998) 193 CLR 346, [31]-[35] (Brennan CJ and Toohey J), [68]-[69] (Gaudron J), [328] (Kirby J). 26 Written submissions of the Commission, [46]. 27 Gould v Brown (1998) 193 CLR 346, [68] (Gaudron J). See also [33] (Brennan CJ and Toohey J), [328] (Kirby J). 28 Minister for Home Affairs v Benbrika (2021) 272 CLR 68, [221] (Edelman J). -- 19 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 18 62 The Commission contended that since the 19th century there have been remarkably disparate regimes with different methods of commencing winding up, appointing liquidators and providing for the matters ancillary to winding up. 63 In addition, the Commission took issue with the premise, which it contended emerged from the reasons of the primary judge, that the appointment of a liquidator and supervision of the winding up did not involve a “sufficiently substantial exercise of judicial power” so as to render it unlikely that these powers would be conferred without also conferring a power to order winding up. 64 The Commission emphasised that a liquidator is an officer of the Court and is subject to the oversight of the Court. The exercise of the power to appoint a liquidator involved the exercise of a judicial power.29 65 From these propositions the Commission contended that where a power is “not peculiarly and distinctive legislative, executive or judicial, it lies within the authority of the legislature to determine what its exercise shall be”.30 66 The Commission submitted that by s 41(9), the Supreme Court was permitted “on an order being made for the winding up of an incorporated association by the Court (including in a winding up on the certificate of the Commission)”, to appoint a person other than a registered company liquidator to be the liquidator. 67 Whilst acknowledging that the opening words to s 41(9) did not support its case, the Commission nonetheless contended that these words should be read as if the words in parenthesis added a category of winding up. That is, it was as if the word “including” meant “and”, rather than indicating that winding up on the certificate of the Commission came within the category of cases involving winding up by order of the Court. 68 The Commission pointed out that, by s 50, the South Australian Civil and Administrative Tribunal was permitted to hear applications for the review of decisions made by the Commission, so that by s 50(6) there could be no review of a decision made under s 41 of the Associations Incorporation Act, including the decision to issue a certificate. Ordinary rights of judicial review nonetheless remained.31 The Commission explained that, before 2017, the right of review had extended to decisions made under s 41 and was undertaken in the District Court. 29 Re Scenic Hinterland Day Tours Pty Ltd (in liq) [2023] FCA 1277, [15], [69]-[72] (Derrington J), regarding the “discretionary matters going to the appropriateness of the appointment of the incoming liquidator” under s 473A of the Corporations Act. See also Re FAI Traders Insurance Co Pty Ltd [2015] NSWSC 2137, [14]-[21] (Brereton J), regarding the power of a court to fill a vacancy and s 90-15 of the Insolvency Practice Schedule (Corporations) under Schedule 2 to the Corporations Act. Finally, see Re Bosnian Islamic Council of Australia Inc [2024] NSWSC 247 (McGrath J), regarding disputes concerning the liquidator of an incorporated association. 30 Thomas v Mowbray (2007) 233 CLR 307, [11] (Gleeson CJ), citing Westel Willoughby, The Constitutional Law of the United States (2nd ed, 1929), p 1619-1620. 31 Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531, [99] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). -- 20 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 19 69 The Commission acknowledged that the current review regime may make it difficult for an incorporated association to challenge a winding up even where there may be questions about the certificate or whether it should be issued. It acknowledged there may be cases where there was no basis for judicial review at the time the certificate was issued, but where the association subsequently remedied its failings. There was no means of contesting the winding up if, as it contended, the order of the Court is confined to the appointment of a liquidator and did not involve the exercise of a discretion to order the winding up. Nevertheless, it contended that this difficulty could not affect the proper construction of s 41. 70 Reference was made to the finding made by the primary judge that s 41(6) provided for voluntary winding up by special resolution, which led back to s 41(3)(a), and that a special resolution in each case had the same effect.32 The Commission contended that this holding was wrong. A special resolution for the voluntary winding up of an incorporated association under s 41(6) was distinct from a special resolution for a Court ordered winding up referred to in s 41(3)(a). The former is extra-curial, whereas the latter assumes the involvement of the Court. 71 Having made this contention, the Commission accepted that it remained unclear whether or to what extent the primary judge had made anything out of this observation in her ultimate reasoning and conclusions.33 72 In conclusion, the Commission contended that the text of the provision, read in its proper context, demonstrated that the winding up of Davenport commenced on the filing of the application in the Supreme Court, together with the lodgement of the Commission’s certificate, on 14 October 2024. There was no residual discretion in the Supreme Court as to whether Davenport ought be wound up.34 The contentions of Davenport 73 Davenport outlined the operation of s 41 and contended that the requirement under s 41(8) for an application to be made to the Supreme Court necessarily involved invoking the exercise of judicial power. In addition, s 41(9), when read as a whole, demonstrated the need for a court to make an order for the winding up in a case where a certificate has been issued by the Commission. 74 Davenport contended that whilst s 41(1) set out the three grounds on which an incorporated association may be wound up, it did not give effect to nor require a winding up merely where one of the three kinds of winding up may be apparent. Rather, provisions attaching to each of the three categories were governed by the balance of s 41. 32 Reasons, [23]-[24]. 33 Whilst it may be accepted that the primary judge did make the error suggested by the Commission, it is equally clear that nothing turns on that error. 34 Written submissions of the Commission, [62]. -- 21 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 20 75 In the case of a winding up following the Commission’s certificate, s 41(8) showed that the application to the Supreme Court must be treated as if the incorporated association had passed a special resolution that it be wound up by the Court. It contended that this provided the jurisdictional fact for the Court to order winding up under s 41(3)(a). 76 This was, Davenport submitted, the first of two “legal fictions” created by ss 41(8) and 41(9). 77 Davenport also contended that whether a voluntary winding up proceeds curially or extra-curially depends upon the manner by which it proceeds. As s 41(2) imports, amongst others, Parts 5.5 and 5.6 of the Corporations Act, those provisions must be considered. In particular, Part 5.5 addresses voluntary winding up and, by s 491 of the Corporations Act, members may wind up by special resolution. 78 However, by s 41(3)(a) the Court may order winding up when the association has, by special resolution, resolved that it be wound up by the Court. The scope for a voluntary winding up to proceed curially or extra-curially, was recognised in Re Parkesbourne/Mummel Landscape Guardians Incorporated (Inc 9884970).35 79 As for s 41(8) and the two legal fictions earlier mentioned, Davenport contended that proceeding as if the association had by special resolution resolved that it be wound up by the Court required that the application proceed in the same manner as s 41(3)(a). Davenport contended that if a winding up on the Commission’s certificate commenced on the application to the Court without any need for an order from the Court, the requirement that the application proceed as if the association had by special resolution resolved that it be wound up by the Court “would make no sense”. 80 That would raise what was said to be “an internal inconsistency” in s 41(8), because there would be both a winding up without the need for a Court order and, at the same time, a requirement that the winding up proceed as though it was an application made to the Court for a winding up order. 81 As for the second legal fiction, Davenport contended that unless the liquidation was deemed to have commenced on the making of the application only after the making of a winding up order, it did not have a “sensible operation”. That was because if the winding up commenced merely on the filing of the application together with the certificate, there would be no need for any application to be made at all. 82 In addition, Davenport contended that it was difficult to view this provision as being confined to the appointment of a liquidator because the language of s 41 did not contemplate the Commission making an application to the Court for the 35 Re Parkesbourne/Mummel Landscape Guardians Incorporated (Inc 9884970) [2017] NSWSC 164, [6]-[7] (Barrett AJA). -- 22 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 21 appointment of a liquidator. At best for the Commission, this was an implication derived from provisions such as ss 41(8) and 41(9). 83 Davenport contended that if the construction of the Commission were correct, there would be a lacuna created between the date of the application and the date of the order appointing the liquidator. 84 Within that lacuna, there would likely be no person with responsibility to protect or deal with the business and assets of the incorporated association. This, said Davenport, begged the question why the legislature intended that the winding up process would be extra-curial if it did not also leave the power to appoint a liquidator in the hands of the Commission. The necessary consequence was that Parliament had, for reasons which were difficult to fathom, determined that a liquidation could commence without a liquidator. 85 In addition, on the Commission’s construction, the legislature had, for reasons which it had not explained, intended to put the functions of placing an entity into winding up and the appointment of a liquidator to effect that winding up between two different decision makers, at two different times. 86 That made no sense, especially where a winding up required a liquidator and was meaningless without one.36 87 As for s 41(9), Davenport contended that this expressly acknowledged that a winding up on the certificate of the Commission required the making of an order by the Supreme Court. The words in parentheses would be unnecessary if the winding up was effected wholly extra-curially: “(including a winding up on the certificate of the Commission)”. Davenport relied on the observations made by the High Court in Project Blue Sky, which require a Court construing a statutory provision to strive to give meaning to every word of that provision.37 Any construction that a winding up did not require a Court order impermissibly treated the words in parentheses as superfluous. The determination of the appeal 88 In South Australia, s 14 of the Legislation Interpretation Act 2021 (SA) provides that the interpretation that best achieves the purpose or object of an Act, even if it is not expressly stated, must be preferred. 89 When considering the proper interpretation of legislation, it is usual for the Court to consider any inconvenience or improbability associated with a particular interpretation because that may suggest a meaning other than the literal meaning. Similarly, whether any particular construction assists or, by contrast, interferes 36 Re Crust ‘n’ Crumb Bakers (Wholesale) Pty Ltd [1992] 2 Qd R 76, 78 (McPherson SPJ). 37 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [71] (McHugh, Gummow, Kirby and Hayne JJ). -- 23 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 22 with a coherent operation of the relevant legislative scheme is another important and relevant consideration. 90 Nonetheless, these purposive and contextual considerations cannot be used to rewrite legislation, because the proper interpretation must be consistent with the language actually used by the legislature. As a corollary, the purpose or object of legislation must be capable of being discerned from the legislation, read in context, together with any relevant extrinsic material. It is wrong to interpret legislation “on the basis of some a priori assumption as to the statutory purpose”, still less in order to construct what is perceived by the Court to be a desirable operation of the legislation.38 91 When considering text, together with context and purpose, the High Court has explained:39 The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. (Citations omitted.) 92 It is well recognised that the context which must be considered when interpreting legislation includes its historical context. That the historical context for legislation is appropriately considered in aid of the proper interpretation of legislation has been emphasised many times:40 “This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text”.41 So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself. 38 Duncan v Bert Farina Constructions Pty Ltd (2024) 145 SASR 272, [44]-[45] (S Doyle JA, Bleby JA and Blue AJA). 39 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, [14] (Kiefel CJ, Nettle and Gordon JJ). 40 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). 41 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [47] (French CJ, Hayne, Crennan, Bell and Gageler JJ). -- 24 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 23 93 The very first iteration of this legislation was the Associations Incorporation Act 1858 (SA). It was the first Act of its kind in Australia providing for the incorporation of associations.42 94 By the time of the Associations Incorporation Act 1956 (SA), the purpose of the legislation was to permit a corporate structure for Churches, schools and non-trading institutions in which property could be vested.43 Section 24 of the 1956 Act provided a limited basis for winding up in the event an incorporated association was unable to pay its debts. Section 25 provided for a power in the Registrar to cancel the registration of an incorporated association in certain circumstances. 95 The Associations Incorporation Act came into operation in 1985. As has been seen, it provided for the Commission to exercise a power to wind up on the issuing of a certificate under ss 41(1)(c) and 41(7). 96 The primary difference between s 41 at the time of the 1985 Act, and the present iteration of s 41, is that the Commission no longer has the power to appoint a liquidator. Whilst during debate before the passage of the 1985 Act, some analogies were drawn between the Associations Incorporation Act and the companies legislation then in force, it seems to have been assumed that winding up occurred on the issuing by the Commission of a certificate with the approval of the Minister.44 Given the extra-curial nature of the certificate process that then applied, that is unsurprising. 97 The present iteration of s 41 came into operation on 1 June 1993, following the commencement of the Associations Incorporation (Miscellaneous) Amendment Act 1992 (SA). As has been seen, ss 41(8) and 41(9) denied the Commission the power to appoint a liquidator. The reason for that change, or indeed the shift from a wholly extra-curial process, is not explained in the extrinsic materials. 98 It is necessary to commence with s 41(1). That provision sets out the three means by which the liquidation of an incorporated association may proceed. Whilst a version of this provision has been apparent in predecessor legislation for some time, s 41 of the Association Corporations Act must be read as a whole. 99 The mechanism by which a liquidation may proceed under each of the three categories is addressed by particular provisions which follow in the body of s 41. Viewed in that way, s 41(1) operates as a means of sign-posting the different kinds of winding up that may be available. They operate in conjunction with those of 42 Greg Taylor, A Great Inglorious Reformation: 6 Early South Australian Legal Innovations (Wakefield Press, 2005), Ch 5. 43 South Australia, Parliamentary Debates, Legislative Council, 25 October 1956, 1216-1217 (Colin Rowe, Attorney-General). 44 South Australia, Parliamentary Debates, Legislative Council, 21 February 1985, 2744 (Trevor Griffin). -- 25 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 24 the following subsections that apply to each kind of winding up. It is convenient to describe these as machinery provisions. 100 Where, despite their differences, the parties were agreed that an order must be made by the Supreme Court, there is no question that there must be an exercise of judicial power. The question is the nature and extent of the exercise of judicial power contemplated by s 41, and that is answered by construing s 41.45 This case really turns on the proper meaning and effect to be given to ss 41(3), 41(8), 41(9) and 41(10), for these machinery provisions best explain the nature of the winding up process on the Commission’s certificate. 101 These provisions are, with respect to the legislature, neither as clear nor obvious in their effect as they might have been. 102 What is clear is that they represent a marked departure from the means by which a winding up was formerly procured on the certificate of the Commission issued with the consent of the Minster before 1993. 103 By s 41(8), the winding up on any of the grounds in s 41(7) now “commences on application” being made to the Supreme Court by the Commission, together with the lodgement of a copy of the certificate with the Court. However, thereafter, the process is to proceed as if the association had by special resolution resolved that it be wound up by the Court under s 41(3)(a). 104 Davenport submitted that the concluding words to s 41(8) should be read with the word “application”. On that construction, the provision reads as if the application to the Supreme Court, rather than the winding up, proceeds as if the association had by special resolution resolved that it be wound up by the Court. Naturally, on that construction it is easier to see how s 41(8) should be read together with s 41(3)(a) and, in consequence, require an order for winding up to be made by the Supreme Court. 105 It may be accepted that there is a tension between the use of the words “the winding up … is to proceed” under s 41(8), and the use of the words “may be wound up” in s 41(3). 106 On one view of it, s 41(8) assumes that a winding up has commenced with the filing of the application. However, this subsection does not merely say that the winding up commences on filing the application. It also directs that it must proceed as if the association had resolved that it be wound up by the Court, which is the means specified by s 41(3)(a). 107 The provision must be construed as a whole. The better view of s 41(8) is that the words “the winding up” in the first line of s 41(8) apply to both parts of what follows, being the words before and after the word “and”. On this 45 Thomas v Mowbray (2007) 223 CLR 307, [11] (Gleeson CJ), citing Westel Willoughby, The Constitutional Law of the United States (2nd ed, 1929), p 1619-1620. -- 26 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 25 construction, the winding up commences on the application and then proceeds as if there had been a special resolution of the kind referred to in s 41(3)(a). On this approach, there is clear support for the Commission’s construction. 108 However, even on this approach, the effect of the concluding words to s 41(8) must be addressed, in context and having regard to s 41(9), shortly to be addressed. When one has regard to s 41 as a whole, the operation of those concluding words appears to be two-fold. First, the identification of this kind of winding up with s 41(3)(a) identifies those Parts and provisions of the Corporations Act that are picked up by s 41(2) and applied to this kind of winding up. 109 Secondly, the concluding words require that the winding up proceed as if the association had resolved by special resolution that it be wound up by the Court. This requirement is unusual. It would be unnecessary for s 41(8) to deem that this jurisdictional fact was satisfied unless it was also intended that there be an order for winding up. If, as the Commission contended, the winding up commenced merely on filing rather than on the making of an order, deeming the process to be one under s 41(3)(a) is not adequately explained, as it would have been sufficient to refer to s 43(3) more generally. In addition, there would have been no need to refer to any jurisdictional fact because the requisite jurisdiction would already have been conferred by the combination of filing the application and the lodgement of a certificate. 110 Once this deeming is given full effect, the concluding words of s 41(8) are more naturally understood as directing that the matter proceed as an application for a Court ordered winding up where, upon the making of a winding up order, the winding up is taken to commence from the date of filing and lodgement. This kind of deeming in winding up is “an established incident of company law”, recognised long before the relevant amendments took effect in 1993.46 111 Whilst the Commission suggested that clearer words were required to effect this kind of deeming, that contention is difficult to sustain in a case where the legislature has left so much to implication. Rather, it seems unlikely that, having abandoned a wholly extra-curial process, and used language which deliberately pointed to a well-recognised and established process under s 41(3)(a), it appears more likely that the legislature intended that the Court’s order would address the commencement of the winding up as well as the appointment of the liquidator. 112 Whilst this approach must confront the tension earlier mentioned, there are a number of textual and contextual indicators which show why it should be preferred. 46 National Acceptance Corporation Pty Ltd v Benson (1988) 12 NSWLR 213, 219-220 (Priestley JA, with whom Kirby P and Clarke JA agreed), addressing the way the former s 365(2) deemed the winding up to have commenced at the time of the filing of the application for the winding up once a winding up order was made. See also s 465 of the Corporations Law (repealed) referred to by the primary judge, and s 513A of the Corporations Act. -- 27 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 26 113 As for the text, it is necessary to address s 41(9). The evident purpose of this provision is to confer on the Supreme Court the next power of appointment of a liquidator who is not registered as a company liquidator. So, where the Commission nominates a person to be a liquidator who is not a registered company liquidator, the Supreme Court may, in the exercise of its discretion, make that appointment. 114 It is the opening words to this provision which are important for present purposes. As the Commission properly conceded at the hearing, it is difficult to see why the legislature used the opening words “on an order being made for the winding up of an incorporated association by the Court” if the provision was concerned only with the appointment of a liquidator. 115 Those opening words must be read with the words in parentheses which follow, “including a winding up on the certificate of the Commission”. These do more than simply identify another category of case where the Court may exercise the discretionary power of appointment. 116 The ordinary meaning of the word “including” is to signify that the thing which follows forms part of the group which precedes that word. The use of the word “including” immediately following the reference to an order for winding up tends to equiparate those cases involving orders for the winding up of an incorporated association with those involving an application and certificate of the Commission. 117 The parenthetical words assume that winding up on the certificate of the Commission forms part of the category of cases in which the Supreme Court orders the winding up. They do not merely add an additional category, as if the word “including” merely meant “and”. The conjunction of the opening words to s 41(9) and the certificate procedure (“including”) shows that the legislature intended the certificate procedure came within the category of windings up which proceed on the basis of an order that is made for winding up of an incorporated association by the Court. 118 The better view of ss 41(8) and 41(9) is accordingly that the references to a Court order in s 41(8) (“by the Court”) and s 41(9) (“on an order being made”), read in connection with the Commission’s application and a certificate procedure, assume the making of an order of the kind contemplated by s 41(3)(a). They are more consistent with a construction under which the winding up is taken to commence from the date filing and lodgement only upon the making of an order, rather than with one under which winding up commences immediately upon filing. 119 Next, the only category of case in which the Commission may nominate a liquidator is a winding up on the Commission’s certificate. In other forms of winding up, the nomination will ordinarily come from the applicant or from the members through a special resolution. Section 41(10) reflects that distinction. Indeed, it is for that reason that s 41(10) reserves to the Commission the power of -- 28 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 27 approval of appointment of a person who is not a registered company liquidator where that person was nominated pursuant to a members’ special resolution under s 41(6). 120 The need for ss 41(9) and 41(10) is difficult to explain if the only purpose of a Court order under the certificate procedure is for the appointment of a liquidator. First, if s 41(8) was the only relevant machinery provision, there would be no need for any order at all. The Commission could have nominated the liquidator, and the winding up would commence on filing and lodgement. Secondly, where the Commission’s nominee is not a registered company liquidator, s 41(10) demonstrates that the legislature could have conferred on the Commission the power of approval without the need for any order. If the Court’s role under the certificate procedure were confined to the appointment of a liquidator, it is difficult to see why the legislature would not simply have left that function in the hands of the Commission. 121 As for the operation of these provisions, there is the important consideration that it makes little sense for a winding up to commence before the appointment of a liquidator. 122 Although, as in the present case, the Commission may nominate a liquidator, that person cannot take custody and control of the association’s property unless and until appointed by order of the Supreme Court.47 On the Commission’s construction, there would be an intervening period or lacuna during which the association had entered winding up, yet no liquidator would have authority to control or administer its assets and affairs. At the same time, the powers of the association’s officers would be constrained by the commencement of the winding up.48 123 Indeed, as McPherson SPJ explained in Re Crust ‘n’ Crumb Bakers (Wholesale) Pty Ltd, the process of winding up ordinarily follows, rather than precedes, the making of a winding up order and the appointment of a liquidator:49 47 Corporations Act, s 474(1). Where a company is being wound up and a liquidator has been appointed, the liquidator must take custody or control of the company’s property. Where there is no liquidator, the property is deemed to be in the custody of the Court. This provision is within Part 5.4B, which is picked up by s 41(2). 48 Corporations Act, s 471A. While a company is being wound up in insolvency or by the court, an officer cannot exercise the powers of office except with the approval of the liquidator or the court. This provision is also within Part 5.4B and is picked up by s 41(2). Although there was some debate at the hearing concerning s 198G, that provision states the broader rule that applies to any “external administration”, whereby officers must not exercise the powers of their office except in specified circumstances. As it appears in Part 2D.1 (Duties and powers of officers), it is not picked up by s 41(2). See also Austral Brick Co Pty Ltd v Falgat Constructions Pty Ltd (1990) 21 NSWLR 389, 390 (Young J), citing Re Country Traders Distributors Ltd and the Companies Act [1974] 2 NSWLR 135, 138 (Mahoney J). 49 Re Crust ‘n’ Crumb Bakers (Wholesale) Pty Ltd [1992] 2 Qd R 76, 78 (McPherson SPJ). That was a case where s 465(1) of the old Corporations Law provided that, on the making of an order for winding up, the winding up was deemed to have commenced at the time of the filing of the application for the winding up. Section 601 specified when the Corporations Law applied, directing that the repealed -- 29 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 28 What is meant by “winding up” in this context? In my opinion it does not comprehend steps or proceedings taken for the purpose of obtaining an order that the company be wound up. Winding up is a process that consists of collecting the assets, realising and reducing them to money, dealing with proofs of creditors by admitting or rejecting them, and distributing the net proceeds, after providing for costs and expenses, to the persons entitled. It is a process, comparable to an administration in equity, that begins or “starts” with an order of the Court. However, it is not the court order itself that “winds up” the company; the order does no more than direct that the company be wound up, which is then carried into effect by an officer of court, the liquidator, who does the things I have identified in order to liquidate the company’s assets and wind up its affairs. In referring to “winding up” or to the company being “wound up”, and to the manner and the incidents of doing so, s. 601 therefore speaks not of proceedings aimed at obtaining an order of court to wind up the company but of the process that ensues from and follows such an order. Leaving aside the case of a successful appeal, winding up thus “starts” when, and not before, an order to wind up is made appointing a liquidator. 124 The difficulty created on the Commission’s construction by divorcing the commencement of the winding up from the appointment of the liquidator cannot be adequately addressed, as was suggested in argument, by having applications brought on urgently. Quite apart from whether one could realistically ever have a winding up without a liquidator, there is no reason to think that this state of uncertainty, whether the period be days, weeks or months, was seriously within the contemplation of the legislature. The further suggestion made in argument that this difficulty might also be addressed by the appointment of a provisional liquidator merely served to underscore how impractical a winding up was likely to be on the Commission’s construction.50 125 Absent much clearer language, it is difficult to attribute to the legislature an intention to create such an uncertain and commercially impractical state of affairs. 126 Finally, and contextually, it would be surprising if the order required of the Court were, as a matter of implication, confined to a power to appoint a liquidator. 127 Ordinarily, where the Court is required to make an order concerning a winding up, that order will address not only the appointment of the liquidator but also the winding up itself. That approach accords more naturally with the supervisory role which both parties accepted that the Supreme Court must perform. Indeed, when determining which liquidator should be appointed, it is difficult to see why the Court would be disabled from determining whether a liquidator should be appointed at all. In other words, it is difficult to see how the powers impliedly Companies (Queensland) Code applied to cases where the winding up started before the commencement of the Corporations Law. By the time of the ruling, an application had been filed but no order made. An order was made by McPherson SPJ. 50 Corporations Act, s 472(2). Usually, the appointment of a provisional liquidator is made as a matter of urgency pending the determination of the application to wind up. See, for example, Zempilas v JN Taylor Holdings Pty Ltd (No 3) (1990) 55 SASR 77, 91-92 (Debelle J); Davis-Jacenko v Roxy’s Bootcamp Pty Ltd [2024] NSWSC 702, [13] (McGrath J). . -- 30 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 29 conferred on the Court by ss 41(8) and 41(9) could be constrained in the manner suggested by the Commission. 128 Bringing these considerations to a conclusion, the proper operation of s 41 may be summarised as follows. 1. Section 41(1) sets out the three grounds on which an incorporated association may be wound up. One of these is where the Commission has issued a certificate (s 41(1)(c)). Section 41(7) sets out the grounds on which the Commission may issue a certificate for the winding up of an incorporated association. 2. Where the Commission issues a certificate under s 41(7), s 41(8) applies. It stipulates that the winding up commences on application to the Supreme Court and the lodgement of a copy of the certificate. In addition, it provides that, for “the purposes of this Act”, the winding up is to proceed as if the association had by special resolution resolved that it be wound up by the Court. 3. The effect of this is to place the winding up within the category described by s 41(3)(a). When read together, ss 41(3), 41(8) and 41(9) assume that a winding up order will be made by the Supreme Court. The chapeau to s 41(3) recognises and reflects the Court’s discretionary power to order the winding up of an incorporated association. 4. That conclusion is reinforced by s 41(9), which proceeds on the express premise that a winding up on the certificate of the Commission falls within the category of cases in which an order is made for winding up by the Court. 5. In consequence, although the winding up is taken to commence upon the filing of the application and lodgement of the certificate, that depends upon the making of a winding up order by the Court. 129 Whilst the Commission relied on the separate legislative history concerning the increasingly limited scope for a party such as Davenport to review or challenge the Commission’s decision to apply on the basis of a certificate, whether by way of judicial review or otherwise, that consideration is best viewed as neutral. It does not address the difficult implications arising on the operation of ss 41(8) and 41(9). 130 Indeed, that history is equally consistent with a legislative assumption that an association aggrieved by the Commission’s decision-making would ultimately have recourse to the Court and its concomitant exercise of discretion as to whether to make a winding up order. -- 31 of 35 -- [2026] SASCA 84 Livesey ACJ and Stanley JA 30 Conclusion 131 It is striking that in 1993 the legislature moved from a wholly extra-curial approach involving winding up on the certificate of the Commission, to one which required an order from the Supreme Court. 132 The nature of that order emerges from a reading of ss 41(8) and 41(9) together, as part of s 41 as a whole. Whilst there is some support for the approach of the Commissioner in s 41(8), the better view of these provisions is that they assume that winding up on the certificate of the Commission will proceed by way of an order for winding up made by the Court, rather than merely an order appointing a liquidator. On the making of that order, the winding up is taken to have commenced from the date of filing and lodgement. 133 In consequence, these provisions assume that an exercise of judicial discretion will be required when making a winding up order and when appointing a liquidator, though it would usually be “very unlikely” that the Court would not make the orders sought by the Commission.51 134 The appeal should be dismissed. It follows that the dismissal of the originating application should stand. As it is not necessary to rule on the notice of contention, it too should be dismissed. 51 Re Parkesbourne/Mummel Landscape Guardians Incorporated (Inc 9884970) [2017] NSWSC 164, [6] (Barrett AJA), relying on what was said by Black J in Re Aspirion Group Pty Ltd [2014] NSWSC 39, [3]: “… the Court will not generally exercise its discretion against making a winding up order under that section, where shareholders have by special resolution resolved that a company should be wound up by the Court, unless the shareholders’ decision or surrounding circumstances involve an element of unconscionability, or are inequitable, or some other special consideration adversely affecting the creditors indicates that there should be no winding up.” -- 32 of 35 -- [2026] SASCA 84 S Doyle JA 31 135 S DOYLE JA: As set out in the joint reasons of Livesey ACJ and Stanley JA, this appeal raises a narrow but difficult issue of statutory interpretation relevant to a winding up following the issue of a certificate by the Corporate Affairs Commission under s 41 of the Associations Incorporation Act 1985 (SA). A winding up in these circumstances is the third of the three species of winding up contemplated by that section, the other two being a winding up by the Court and a voluntary winding up. 136 The issue on appeal requires determination of whether a winding up in these circumstances commences upon the filing of an application and lodgement of a certificate of the Commission, or whether these steps merely fix the date from which the winding up is taken to commence once the Court makes a winding up order. 137 The primary judge favoured the latter view, and the Commission has appealed. I agree with Livesey ACJ and Stanley JA that the appeal should be dismissed, and I agree with their reasons for so concluding. 138 The issue on appeal being one of statutory interpretation, it falls to be determined having regard to the text, context and purpose of the relevant provision, namely s 41 of the Act, and in particular ss 41(8) and (9). As outlined in the joint reasons, the relevant context includes not only the terms and structure of s 41, but also the legislative history of this section and the (limited) extrinsic materials relevant to its construction. 139 The alternative constructions propounded by the parties are both workable, but neither fits precisely with the statutory language. 140 On the Commission’s construction, it may, with the consent of the Minister, issue a certificate for the winding up of an associated incorporation on any of the five grounds listed in s 41(7). The Commission must then bring the application contemplated by s 41(8), being an application for the appointment of a liquidator. Consistently with the text of s 41(8), the winding up ‘commences on application to the Supreme Court by the Commission and lodgement with the Court of a copy of the certificate’. And, as that subsection further provides, the winding up thereafter ‘is to proceed as if the association had by special resolution resolved that it be wound up by the Court’. 141 As the Commission contends, this is a workable construction of the legislation. It gives effect to the third of the three species of winding up contemplated by s 41(1), with the commencement of the winding up being the function of a decision and action by the Commission, rather than any determination by the Court. But it nevertheless contemplates, indeed requires, the Court’s involvement in appointing the liquidator. This involvement is consistent with the Court’s role in thereafter supervising the winding up. And the provision in s 41(8) that the winding up proceed ‘as if’ the association had by special resolution resolved that it be wound up by the Court facilitates the application, pursuant to -- 33 of 35 -- [2026] SASCA 84 S Doyle JA 32 s 41(2), of the particular provisions of the federal corporations legislation necessary to give effect to the winding up. 142 That said, the Commission’s construction does present some textual and other difficulties or peculiarities. It gives rise to a potentially problematic lacuna in the control over the incorporated association in that there will inevitably be at least some delay between the commencement of the winding up and the appointment of a liquidator. The Commission’s construction is also difficult to reconcile with the text of s 41(9), which not only contemplates the Court making an order for the winding up, but also contemplates the category of cases in which this occurs ‘including’ a winding up on the certificate of the Commission. On the Commission’s construction, it is difficult to understand the inclusion of a winding up on the certificate of the Commission within the category of windings up by the Court. Indeed, the Commission was forced to accept that the word ‘including’ must be read as meaning ‘and’, or as otherwise intended to extend the category of windings up by the Court to include windings up on the certificate of the Commission. 143 The Commission’s construction is also curious for two further reasons. Given the apparent intention of the 1993 amendments to move from an entirely extra-curial process for the winding up of an incorporated association to one which involves the Court, it leaves the Court with what might be seen as a surprisingly narrow role, and scope for the exercise of judicial power, in merely appointing the liquidator. It is also curious that s 41(9) does not make express reference to the Court’s general power to appoint a liquidator in cases of windings up on the issuing of a certificate by the Commission, other than in cases where the Commission nominates a person who is not a registered company liquidator.52 144 Although none of these difficulties or peculiarities are insurmountable obstacles to the Commission’s construction, they do cause me to doubt whether the Commission’s construction is what the legislature intended. Further, most of these difficulties or peculiarities are addressed by the alternative construction propounded by the respondent. 145 On the respondent’s construction, although the third category of winding up contemplated by s 41(1)(c) is predicated upon the existence of a certificate issued by the Commission, the winding up is dependent upon the Court determining whether the incorporated association should be wound up. To facilitate this determination, s 41(8) effectively provides the jurisdictional fact or foundation for that determination by providing for the winding up to proceed ‘as if’ the association had by special resolution resolved that it be wound up, and hence ‘as if’ the Court’s discretion to order that the association be wound up had been enlivened by satisfaction of the condition in s 41(3)(a). 52 Although this may be explained by the power to appoint a registered liquidator in s 472 of Part 5.4B of the Corporations Act 2001 (Cth) being picked up by s 41(2) of the Associations Incorporation Act. -- 34 of 35 -- [2026] SASCA 84 S Doyle JA 33 146 Approaching the matter in this way does address the use of the word ‘including’ in parentheses in s 41(9) in that it brings the winding up following the issuing of a certificate by the Commission within the category of windings up by the Court. On the other hand, it introduces its own textual difficulties. It requires that the provision in s 41(8) that ‘the winding up’ proceed as if the association had by special resolution resolved that it be wound up by the Court be read or understood as providing in effect that ‘the application’ contemplated by s 41(8) proceed in this way. It also requires that the provision in s 41(8) that ‘the winding up … commences’, be read or understood as providing that ‘the winding up … is deemed to commence’. Whilst this latter approach of deeming a winding up to have commenced at some date prior to the Court order would be consistent with the approach adopted in other circumstances,53 it is noteworthy that there is no clear textual basis for this approach in s 41(8). 147 Whilst relevant, I do not regard either of these textual difficulties as significant obstacles to the respondent’s construction. Importantly, the respondent’s construction not only addresses the textual difficulties confronting the Commission’s construction, but additionally addresses the potentially problematic lacuna in control that arises under the Commission’s construction. It also provides the Court with a more substantial role, which may be seen as more consistent with an intention, apparent from a consideration of the legislative history, to shift from an entirely extra-curial process to a process that requires the involvement of the Court. 148 I have had careful regard to the matters outlined above, as well as the other considerations addressed in the joint reasons and the parties’ submissions. I am left in a position where the legislation, and in particular ss 41(8) and (9), is unclear in its meaning. Whilst both of the propounded constructions are workable, neither is compelled by, nor entirely consistent with, the legislative text. Having weighed the competing indications provided by a careful consideration of the text, context and purpose, I am ultimately persuaded that the respondent’s construction is preferable. 149 I thus agree that the appeal should be dismissed, and that it is unnecessary to address the respondent’s notice of contention. 53 See s 465 of the former Corporations Law (as contained in Corporations Act 1989 (Cth) s 82), and s 513A of the Corporations Act 2001 (Cth). -- 35 of 35 --