Draft Constitution?

[Jim McDowall]

Refer to this definition:

 

DEED, conveyancing, contracts. A writing or instrument, under seal, containing some contract or agreement, and which has been delivered by the parties. Co. Litt. 171; 2 Bl. Com. 295; Shep. Touch. 50. This applies to all instruments in writing, under seal, whether they relate to the conveyance of lands, or to any other matter; a bond, a single bill, an agreement in writing, or any other contract whatever, when reduced to writing, which writing is sealed and delivered, is as much a deed as any conveyance of land. 2 Serg. & Rawle, 504; 1 Mood. Cr, Cas. 57; 5 Dana, 365; 1 How. Miss. R. 154; 1 McMullan, 373. Signing is not necessary at common law to make a deed. 2 Ev. Poth. 165; 11 Co. Rep. 278 6 S. & R. 311.

 

 

[DonRamsay]

I am not going to get into an argument with a lawyer about whether a deed is different from a contract. My understanding goes back to a study of the law of contracts and my inexpert understanding is that great swathes of the law of contracts does not apply to a deed. My knowledge of deeds is limited to the concept that if you want to avoid the impact of much of the law of contracts - use a deed. A contract between unequals such as CASA and RAAus containing the words in the Deed of Agreement with CASA would in my understanding be unenforceable and that again to my limited understanding is why CASA use a deed rather than a contract.

 

But, I could be wrong . . .

 

 

[Jim McDowall]

Don,

 

Have a look at:

 

http://www.claytonutz.com/publications/newsletters/queensland_energy_and_resources_insights/20050831/did_you_know-whats_the_difference_between_deeds_and_agreements.page

 

Especially note:

 

"and today a deed is a special type of contract or binding commitment or obligation and is regarded as the most solemn act that a person may perform which:

 

• passes an interest, right or property;
   
   
  
• creates an obligation binding on some person;
   
   
  
• or amounts to an affirmation or confirmation of something which passes an interest, right or property."
   
   
  

 

 

Jim

 

 

[DonRamsay]

Don,Have a look at:

http://www.claytonutz.com/publications/newsletters/queensland_energy_and_resources_insights/20050831/did_you_know-whats_the_difference_between_deeds_and_agreements.page

 

Especially note:

 

"and today a deed is a special type of contract or binding commitment or obligation and is regarded as the most solemn act that a person may perform which:

 

• passes an interest, right or property;
   
   
  
• creates an obligation binding on some person;
   
   
  
• or amounts to an affirmation or confirmation of something which passes an interest, right or property."
   
   
  

 

 

Jim

Thanks again Jim. That is my understanding. A deed is a contract but a contract is not a deed.

I could wonder if CASA used a deed on RAAus to get around the issue you have identified as well as to avoid the fairness principles built into law of contracts.

 

 

[Jim McDowall]

From: http://www.claytonutz.com/publications/newsletters/queensland_energy_and_resources_insights/20050831/did_you_know-whats_the_difference_between_deeds_and_agreements.page

 

Are there differences between deeds and agreements?

 

 

 

It is a basic principle of modern contract law that in order to have a binding contract there must be:

 

• offer and acceptance;
   
   
  
• an intention to be legally bound; and
   
   
  
• consideration (this stems from the idea that the promises or obligations must be part of a "bargain" between the parties and the parties must show they "bought" the promise by doing some act in return or providing a counter-promise).
   
   
  

 

 

The major difference between a deed and an agreement is that there is no requirement for consideration in order for the deed to be binding. In short, the lack of the requirement of consideration is overcome by the idea that a deed is intended by the executing party to be a solemn indication to the community that she or he really means to do what he or she is doing.

 

The CASA document is clearly not a deed as there is consideration.

 

There clearly has been offer and acceptance.

 

There is a clear intention to be legally bound (eg RAAus must ....... and if it does not CASA may withdraw funding - plus implied "threat")

 

But either way both deed and agreements are contracts. (The document is titled "Deed of Agreement")

 

Your statement "A deed is a contract but a contract is not a deed." is almost correct as a contract may not be expressed as a deed as there are expressions to be used in drafting an agreement that make it a deed and then there is the consideration thingy.

 

In any event 97AB only requires "a contract" which can be a deed or an agreement.

 

 

[DonRamsay]

Agai

 

. . .Your statement "A deed is a contract but a contract is not a deed." is almost correct as a contract may not be expressed as a deed as there are expressions to be used in drafting an agreement that make it a deed and then there is the consideration thingy.

In any event 97AB only requires "a contract" which can be a deed or an agreement.

Thanks again Jim. I'm on a train at the moment . . .

If the CASA "Deed of Agreement" is not a deed, it would fall foul of contract law because it is, in my view, a lopsided deal between unequals - Mighty CASA and minow RAAus.Can a deed include exchange of cash?

 

There needs to be evidence of capability as the 4th test of a contract formation.

 

 

[peterg]

Don

 

Accountants should stay away from the law ;-)

 

http://lawcentral.com.au

 

Title Fight: Contracts vs Deeds

 

Do you know the difference between a deed and an agreement? Do you know which of these legal documents is most suitable for your transaction? You may have seen these different commercial documents but never asked what the difference is and what requirement or effect they have.

 

Choosing whether to use a deed or agreement for a transaction may have huge consequences later on, should a dispute arise between the parties. Making the right decision at the start could save you a lot of unnecessary time, money and stress.

 

What is a Contract?

 

One of the fundamental principles of contract law is that in order to have a legally effective contract certain legal elements must be met. These elements are:

 

1 An offer by a party;

 

2 Acceptance of that offer by another party;

 

3 Consideration (exchange of something of value); and

 

4 Intention to create legal relations.

 

For example: Joe wishes to purchase a car from Sam (an intention to create a legal relationship). Joe offers Sam $10,000.00 for the car and Sam accepts. In consideration of Sam providing the car to Joe, Joe gives Sam the $10,000.00. In this simplistic scenario it is clear that all 4 elements have been met.

 

What happens if one or more of the contract elements are not met?

 

If any of the four key elements are missing, your ‘contract’ will not be a contract under law. Therefore, if something goes wrong in the transaction, you may not be able to sue under the written or oral terms of the ‘contract’. Of course, you may be able to sue under another cause of action, under specific legislation or under equity – but this is likely to be a more complex and costly exercise to do so (especially when it comes to obtaining evidentiary proof). As well, it is likely that the remedies available to you (including damages) will be different depending on whether you can sue under the breach provisions of the contract, under specific legislation or under equity.

 

What is a Deed?

 

A deed is essentially a binding promise or commitment to do something. Unlike a contract, a deed does not require the element of consideration. The elements required are that it be:

 

1 In writing;

 

2 Signed by all parties (can be in counterparts if there is a specific clause included);

 

3 Witnessed by at least one person not a party to the deed;

 

4 Expressed to be a deed in the document itself (e.g. “This Deed hereby....”);

 

5 Delivered to all parties (although some states specifically require deeds to state that they are “signed, sealed and delivered”; and

 

6 Supported by evidence that the parties intended to be legally bound by its terms.

 

A unilateral promise unsupported by consideration, is not a legally binding or enforceable contract. However, if this unilateral promise is made by deed, then it will be enforceable.

 

Some Examples

 

An agreement must exist for a contract to exist, but on its own is not sufficient to meet the elements required for a contract. Simply put, all contracts are also agreements, but not all agreements are legally enforceable contracts. In order for an agreement to be a legally enforceable contract consideration must be provided as well as the intention to be legally bound.

 

Here are some scenarios to consider:

 

A Sam says to Joe “I am going to give you $1,000.00”.

 

B Sam owns the company Red Rubber Pty Ltd (“RR”), which is a subsidiary of its parent company Silver Steel Pty Ltd (“SS”). SS offers to pay Joe $1,000.00 to on behalf of RR in return for Joe providing machinery to RR’s rubber factory. RR itself provides no consideration in return for Joe providing the machinery.

 

In both scenarios Joe would be unable to enforce the promise under a normal contract as he provided no consideration to Sam or to SS. However, if either agreement was made with a deed, then Joe would be entitled to enforce the terms of the promise in both scenarios.

 

Should I Use a Deed or a Contract for my Transaction?

 

There may be some circumstances, like the above scenario with Sam and Joe, where there is no choice but to use a deed. Deeds are commonly used for changing your name (by deed poll), financial guarantees, confidentiality agreements, terminations or indemnities. As a general rule, if the existence of consideration is in doubt (or if consideration has been provided only in the past), then you should use a deed instead of a contract. Other factors to consider are:

 

1 When it is to be binding on a party: deeds are binding when they are signed, sealed and delivered by one party to the other - even if the other party has not yet executed the deed document (see Vincent v Premo Enterprises (Voucher Sales) Ltd [1969] 2 QB 609 at 619 per Lord Denning).

 

2 Limitation periods: each State or Territory has its own legislation regarding limitation periods. The limitation period is extended for deeds and varies between 12 and 15 years, depending which State or Territory the deed is governed by. The limitation periods for contracts are 6 years in the States and the ACT, whereas in the Northern Territory it is only 3 years.

 

3 Corporate restrictions: some company representatives are not allowed to sign deeds on behalf of the company, therefore a contract is necessary.

 

4 Remedies: legal remedies differ between deeds and contracts, therefore this should be considered

 

Conclusion

 

Hopefully this discussion has helped you better understand the differences between deeds and contractual agreements. It is important to note that this is not a simple area of the law and sometimes even the Courts don’t agree on this issue.

 

In the recent case of 400 George Street (Qld) Pty Limited & Ors v BG International Limited [2010] QSC 66 (“George Street”) the Queensland Supreme Court ruled that the document in question was not a deed, and was rather a contractual agreement because of a number of factors. However, on appeal in 400 George Street (Qld) Pty Ltd v BG International Ltd [2010] QCA 245 (“George Street Appeal”), the Queensland Court of Appeal found that the document was in fact a deed, and not a contractual agreement.

 

 

[turboplanner]

And they made money on the way through the first decision and again through the second!

 

 

[kasper]

OK so if according to some this is a once in a generation change for the RAAus structure then lets get adventurous and start from scratch.

 

Things I do not like about the current options - incorporated association membership is critical to legal ops and the proposal is a nightmare to meet with MANY technical issues - emails to CEO on the nightmare unanswered for coming up 5 months now... and its not really essential IMHO to be a member of an association to fly ... just abide by the ops an tech manuals and pay for the running for the overall system

 

So lets break the membership thing from the fee for service access to flight thing ... and just leave the politics to those who want it and for those that do not go simple fee for service.

 

The other benefits of this change of focus is that 'punishing' or 'managing' errant fee for service is damn easy - hardly any nasty fairness issues that arise on memberships of associations (incorporated or otherwise).

 

So this is what I think as a structure

 

1. a core RAAus association or organisationthat runs as a not for profit

 

2. fee for service sales of certificates, renewals and registrations to users

 

The first org deals with CASA and owns the regulated documents employs the staff and administers the lot - this is a legal not-for profit so the focus is not on increasing $$$ or chasing them all the time but simply the focus on the RAAus business of administering the airframes and pilot certificates (and how you get them through CFIs, instructors and maintainers etc)

 

The second part is pure purchase of a service ... no need to be a member of the association you are just buying from a not-for profit a certificate or renewal and binding yourself to the required operating and tech documents

 

And for the not-for-profit it can sort its board out what whatever skills they need.

 

Sounds like giving all the power to centre?

 

Well control is still there with the users IF the access to join the central org is available to all (no having to agree to abide by ops manuals or tech manuals) for a nominal joining fee - lets say $1 - and its relatively easy for a member called meeting to occur.

 

Now IF there is an issue where the board are off in cloud cuckoo land it takes only a short whip around of pilots and owners through social media and suddenly the small core members of the not-for-profit are swollen with irate pilots and they HAVE the heft to get things altered becasue the core management can't hold proxies etc to override ... a few hundred could swing it as there will be a smallish main group ... give the core group in the organisation 1 scare and they will soon get the idea that they need to keep the users happy.

 

And the beauty of such a radical change is that it require not a single change to the CAOs, pilots do not NEED to be members of RAAus just hold a certificate issued by and abide by the ops manual and/or tech manual - both can be applied as conditions to use of the fee for service certificates.

 

Now that would be revolutionary :-)

 

 

[Guest Andys@coffs]

so as an organisation the cost base doesn't really change in any way between the existing and Kaspers propose alternate. The revenue line however suddenly is bereft of membership dues.....no problem the costs have to be recoverd which simply means that the cost of the service provided will increase by whatever is need to make up the shortfall....... The membership thing however is a complete unknown, you have no idea if you will have 10 members or 10,000 so you conservatively think closer to the former.......how much should it cost to be a member... How long and what process to become one.....how do you prevent a small minority that have an agenda that is at odds with what the vast majority want stacking the membership and changing things in such a way as to exclude an inrush of members with a view to restoration of the status quo......

 

With apathy that is present in the membership I don't see that what you are proposing is in any way different to how it is now except that the door is easier to open to abuse if that way inclined.....

 

Andy

 

 

[kasper]

so as an organisation the cost base doesn't really change in any way between the existing and Kaspers propose alternate. The revenue line however suddenly is bereft of membership dues.....no problem the costs have to be recoverd which simply means that the cost of the service provided will increase by whatever is need to make up the shortfall....... The membership thing however is a complete unknown, you have no idea if you will have 10 members or 10,000 so you conservatively think closer to the former.......how much should it cost to be a member... How long and what process to become one.....how do you prevent a small minority that have an agenda that is at odds with what the vast majority want stacking the membership and changing things in such a way as to exclude an inrush of members with a view to restoration of the status quo......With apathy that is present in the membership I don't see that what you are proposing is in any way different to how it is now except that the door is easier to open to abuse if that way inclined.....

 

if the core non-for-profit

 

Andy

No NO NO!!!

There is no reason the costs of the fee for service have to not cover the costs of the service provision

 

Please look at the concept and do not instantly throw up that its a financial ruin for the org ... strangely I looked at the overall structure from a legal perspective (admitted as a solicitor in 1993) and from a financial viability perspective (been a charted accountant since 1995 and fellow of the institute since 2002) and worked professionally using these and core business skills with PwC global on business restructuring and process improvement for a couple of decades.

 

And frankly if the core not-for-profit entity at the centre ran on 50-100 members thats actually ideal ... write into the governing structure that change to the governing structure requires 2 months full public notice and consultation with its members and then if its off left field it only takes 50-100 new members to join to defeat - its actually MUCH MORE democratic than the current 10,000 members with the possibility of current management holding block of proxies.

 

 

[coljones]

No NO NO!!!There is no reason the costs of the fee for service have to not cover the costs of the service provision

 

Please look at the concept and do not instantly throw up that its a financial ruin for the org ... strangely I looked at the overall structure from a legal perspective (admitted as a solicitor in 1993) and from a financial viability perspective (been a charted accountant since 1995 and fellow of the institute since 2002) and worked professionally using these and core business skills with PwC global on business restructuring and process improvement for a couple of decades.

 

And frankly if the core not-for-profit entity at the centre ran on 50-100 members thats actually ideal ... write into the governing structure that change to the governing structure requires 2 months full public notice and consultation with its members and then if its off left field it only takes 50-100 new members to join to defeat - its actually MUCH MORE democratic than the current 10,000 members with the possibility of current management holding block of proxies.

There are many organisations with constrained membership rules such as "Primary Ethics", "HCF" etc. There are also a number of organisations that require the serving out of a probationary period of a number of years, there are others such as political parties that won't even enroll you unless have the right handshake and others that place almost insurmountable hurdles unless you are part of the "Chairman's Team".

In some cases you couldn't care less but in other cases you need to be a member or subscriber, in which case the full democratic rights should prevail. Any organisation that constrains democracy isn't democratic IMHO.

 

I never liked the fact that "The Readers Digest Association" could call itself an Association when clearly it wasn't.

 

 

[kasper]

And today in the email inbox comes the link to the constitution being put forward for voting ... and its completely unchanged from the last draft against which serious comments were made.

 

The 'consultation' from the RAAus on this is a complete joke and so I am through this forum asking for members proxies to vote AGAINST the change - its current form is a nightmare on technical application to current actual processing admin of memberships alone and that was put to the CEO and appears to have been completely ignored.

 

Sorry RAAus board members reading this but you lot need sacking

 

 

[Geoff13]

There is Consultation and then there is the pretense of consultation.

 

The former is good, the secondary not so much.

 

 

[turboplanner]

But they seem to like each other though...............

 

 

[rhysmcc]

I don't know why we are going through with this still when they have a cheap and easy way to poll the members and see what they actually want before trying to design a new company and come up with the rules to support it.

 

 

[rhysmcc]

Sorry RAAus board members reading this but you lot need sacking

Will you be putting forward a resolution to that effect?

 

 

[nong]

14.3 of the Draft Constitution kills it stone dead for me.

 

 

[shags_j]

I just did another thread why it should not be allowed (14.3 is my pet hate as well)

 

However noone should vote for this as there are errors in it.

 

 

[coljones]

Shags' new thread is here http://recreationalflying.com/threads/why-i-will-be-voting-against-the-new-constitution.147715/

 

Shags' problem clause is - "14.3 If the Directors reject an application, the Company must write to the applicant as soon as possible to tell them that their application has been rejected, but does not have to give reasons."

 

He also alludes to the provision that membership can be terminated if money is owed to RAA - No timeframe is provided. Most member based organisation prescribe some type of latitude to receiving benefits and usually don't start member termination procedures unless a member has been unfinancial for more than 3 months.

 

If I owned shares and the director of the company upset me I could flog the shares. In the case of Not for profits members have no proprietary interests in the company and no shares to flog. At the moment the non-proprietorial interest that members have in RAA is around $200/member. Being chucked out on one's ear at the behest of the board without being able to enjoy this non-proprietorial interest is a bit rough.

 

I am underwhelmed by registering Not for Profits under the Corporations Act which is designed for profit making corporations. It is mainly used by Not for profits who want to keep the membership highly limited or keep them away from the levers of control.

 

If this is the quality of output from the subcommittee after a couple of years one has to wonder what they were doing.

 

 

[kasper]

Will you be putting forward a resolution to that effect?

Nope. Just a vote against the changes that are in my opinion a fatally flawed constitution being driven through without effective consultation and directly in conflict with clear suggestions and comments from members TRYING TO FIX THE ERRORS ... there are people trying to help and I dread the first board/exec who comes out and now says we are just trying to be spoilers.

The board want to represent the members so I'll reject the ridiculous constitutional change and hope enough of the membership also reject it and leave them in a position where it is VERY clear from the membership that they are crap at actually doing what the membership want.

 

Then they can individually decide if they want to actually continue with a very clear direction from the members or volunteer to make way for new blood.

 

I am convinced that the skills to move the association forward are within the board and executive and they just have lost the plot in some areas.

 

 

[DonRamsay]

On 24 March 2016, RAAus issued a newsletter on the subject of the new constitution. It would seem than none on this thread have read the following passage:

 

"Over the coming seven weeks, RAAus will be communicating with members as we draw closer to an important vote on the future of RAAus. Each week we will communicate key information to members about this forthcoming transformation. This week we answer some frequently asked questions." (my added emphasis)

 

If you've read the newsletter then we have something we can discuss but if you want to reject the project out of hand there is no room for discussion.

 

What I would agree is that the draft released at the AGM last October now looks a bit premature. But the aim was to get something to the members that gave exposure to some of the big ticket items like a blank-sheet rewrite, a smaller Board and a single region (Australia). To that extent, the release was very successful. Members got a good look at the direction we were heading and, at the AGM and many of the airports visited since then, it has been well received.

 

I am confident that over the next 6 weeks or so, the aspects that concern many on this thread, not unreasonably, will be shown to have the protections in place so that your worst fears and even moderate concerns are eased.

 

I would be very pleased to hear, personally, if you communicate with the CEO and are dissatisfied with the response you get.

 

 

[rhysmcc]

Why over 7 weeks, are we making it up as we go? Are we expected to get the final version on week 7?

 

What surveys (other then a show of hands in the hangar) has the board requested to actually see what direction the members want (re my last post on the other thread).

 

Has there been any minutes conducted from any of these "consulting airport visits"?

 

I haven't seen any evidence that the board has made any attempt in seeking what the 10,000 odd members want from their association. Our current constitution gives the board the power to conduct a plebsite of the membership, so why not send out a 5-10 question electronic survey and actually find out what the want?

 

I for one won't be supporting the removal of elected board members in favor of appointed board, currently it's the only time a member has any say in their own association

 

 

[DonRamsay]

Why over 7 weeks, are we making it up as we go? Are we expected to get the final version on week 7?

Bite sized pieces. Not everyone of our 10,000 members are as tuned in or as interested as you are . If it was all dumped in one go most would drown under the volume and it would all get the tldr (too long didn't read) response and be counter-productive.

 

What surveys (other then a show of hands in the hangar) has the board requested to actually see what direction the members want (re my last post on the other thread).

Members have been given the opportunity to voice opposition and none that I am aware of has been voiced to RAAus.

 

Has there been any minutes conducted from any of these "consulting airport visits"?

They were advertised well in advance and typically, very informal gatherings, sitting around in a tent where ordinary members could feel comfortable asking questions and expressing views. No secretarial staff were present and they were not held as formal meetings. I flew at my own cost to Evans Head and attended the meeting there with Mick Monck and Michael Linke - it went very well.

 

I haven't seen any evidence that the board has made any attempt in seeking what the 10,000 odd members want from their association. Our current constitution gives the board the power to conduct a plebsite of the membership, so why not send out a 5-10 question electronic survey and actually find out what the want?

I guess the Board takes the view that they were elected by the members to do a job and they are getting on with it. The draft has been and is being put to the members with explanations and opportunities for comments and questions. I think you may be overstating the interest of members other than yourself and a few on here to make an unsupported contribution. Consider the typical "turnout" at elections for the Board. I believe the vast majority of members want their Board to work this way - they look to the Board for leadership.

 

I for one won't be supporting the removal of elected board members in favor of appointed board, currently it's the only time a member has any say in their own association

I must be missing something. Where in the draft constitution does it say "removal of elected board members in favor of appointed board"? As far as I can see only the Members can remove a Director.

 

37. When a Director stops being a Director

 

A Director immediately and irrevocably stops being a Director if they:

 

© are removed as a Director by a resolution of the Members (Don's emphasis)

 

Yes, the Board can nominate to fill a casual vacancy but all Directors must face an election by the members.

 

 

[kasper]

Don,

 

1. when I read a release on an unchanged draft that communication would be coming over the next seven weeks I really did not read that as anything like 1-7 drafts being provided

 

2. why the next seven weeks when effectively everything sent to the CEO over the past 7 months has been ignored

 

3. given the actual TIME required to state a position to members, gain any proxy and then turn up to use the proxies the BOARD have effectively restricted practical review to the next week or so ... we HAVE to work with what the BOARD have, after 1 year of work, put forward NOW.

 

Sorry Don, another example of what APPEARS from this members perspective to be at best horrendous communications or with best will in the world a complete misunderstanding of members needs.

 

Sorry board, but what you have put forward last week - same as last month and the last 5 months - will be what people will be gathering proxies on and this vote on a new constitution which SHOULD have been seen as a positive improvement to the benefit of members will never be seen that way as a direct result of the lack of response by the CEO/board as exemplified by failing to even attempt to address basic drafting flaws.